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EVIDENCE Atty. Ramon S. Esguerra
REMEDIAL LAW – BAR TRENDING FREQUENTLY ASKED QUESTIONS (FAQs)
17 6 17
General Principles
General Principles
Environmental Cases
Environmental Cases Katarungang Pambarangay Law
Katarungang Pambarangay Law
Evidence
207 Evidence
19872017
18 6
Summary Procedure Summary Procedure
Rule for Small Claims Cases
Small Claims
96 73
Special Proceedings
Special Proceedings
Jurisdiction Criminal Procedure
Jurisdiction
Criminal Procedure
Civil Procedure
208 545
Civil Procedure
0
200
400
600
EVIDENCE FREQUENTLY ASKED QUESTIONS (FAQs) 6 7
Judicial Notice and admissions Object evidence
21 Offer and objection
1987-2017
30 31
Documentary Evidence General Principles Testimonial Evidence
0
20
40
60
112
80
100
judicial notice and admissions
Object (real) evidence
Offer and objection
Documentary Evidence
General Principles
Testimonial Evidence
120
Read: (1)
Rule on Examination of Child Witness (A.M. No. 00-4-07-SC)
Applicability: Unless otherwise provided, the Rule shall govern the examination of child witnesses who are victims of crime, accused of a crime, and witnesses to crime. It shall apply in all criminal proceedings and non-criminal proceedings involving child witnesses (Sec. 1).
Meaning of “child witness” -- A child witness is any person who at the time of giving testimony is below the age of 18 years. In child abuse cases, 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 a physical or mental disability or condition (Sec. 4[a]).
Competency of a child witness -- Every child is presumed qualified to be a witness. However, the court shall conduct a competency examination of a child, motu propio or on motion of a party, when it finds that substantial doubt exists regarding the stability of the child to perceive, remember, communicate, distinguish truth from falsehood, or appreciate the duty to tell the truth in court (Sec. 6).
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Every child of sound mind with the capacity to perceive and make known his perception can be believed in the absence of any showing of an improper motive to testify. Once it is established that the child fully understands the character and nature of an oath, the testimony is given full credence (People of the Philippines v. Edison Magbitang, G.R. No. 175592, 14 June 2016).
Proof of necessity -- A party seeking a competency examination must present proof of necessity of competency examination. The age of the child by itself is not a sufficient basis for a competency examination (Sec. 6[a]).
Burden of proof -- To rebut the presumption of competence enjoyed by a child, the burden of proof lies on the party challenging his competence (Sec. 6[b]).
Persons allowed at competency examination – Only the following are allowed to attend a competency examination: (a) The judge and necessary court personnel; (b) The counsel for the parties; (c) The guardian ad litem; (d) One or more support persons for the child; and (e) The defendant, unless the court determines that competence can be fully evaluated in his absence (Sec. 6[c]).
Conduct of examination -- Examination of a child as to his competence shall be conducted only by the judge. Counsel for the parties, however, can submit questions to the judge that he may, in his discretion, ask the child (Sec. 6[d]).
Developmentally appropriate questions -- The questions asked at the competency examination shall be appropriate to the age and developmental level of the child; shall not be related to the issues at trial; and shall focus on the ability of the child to remember, communicate, distinguish between truth and falsehood, and appreciate the duty to testify truthfully (Sec. 6[e]).
Continuing duty to assess competence -- The court has the duty of continuously assessing the competence of the child throughout his testimony (Sec. 6[f]).
Examination of a child witness -- The examination of a child witness presented in a hearing or any proceeding shall be done in open court. Unless the witness is incapacitated to speak, or the question calls for a different mode of answer, the answers of the witness shall be given orally. The party who presents a child witness or the guardian ad litem of such child witness may, however, move the court to allow him to testify in the manner provided in this Rule (Sec. 8).
The trend in procedural law is to give a wide latitude to the courts in exercising control over the questioning of a child witness. Under Sections 19 to 21 of the Rules on Examination of a Child Witness, child witnesses may testify in a narrative form and leading questions may be allowed by the trial court in all stages of the examination if the same will further the interest of justice (People of the Philippines v. Rene Santos, G.R. No. 172322, 8 September 2006).
A child of tender years may be asked leading questions under Section 10 (c), Rule 132 of the Rules of Court. Section 20 of the 2000 Rule on Examination of a Child Witness also provides that the court may allow leading questions in all stages of examination of a child if the same will further the interests of justice. This rule was formulated to allow children to give reliable and complete evidence, minimize trauma to children, encourage them to testify in legal proceedings and facilitate the ascertainment of truth (People of the Philippines v. Cerilo Ilogon, G.R. No. 206294, 29 June 2014).
Live-link TV testimony of a child witness (a) The prosecutor, counsel or the guardian ad litem may apply for an order that the testimony of the child be taken in a room outside the courtroom and be televised to the courtroom by live-link television. Before the guardian ad litem applies for an order under this section, he shall consult the prosecutor or counsel and shall defer to the judgment of the prosecutor or counsel regarding the necessity of applying for an order. In case the guardian ad litem is convinced that the decision of the prosecutor or counsel not to apply will cause the child serious emotional trauma, he himself may apply for the order. The person seeking such an order shall apply at least five (5) days before the trial date, unless the court finds on the record that the need for such an order was not reasonably foreseeable. (b) The court may motu propio hear and determine, with notice to the parties, the need for taking the testimony of the child through live-link television. (c) The judge may question the child in chambers or in some comfortable place other than the courtroom, in the presence of the support person, guardian ad litem, prosecutor, and counsel for the parties. The questions of the judge shall not be related to the issues at trial but to the feelings of the child about testifying in the courtroom. (d) The judge may exclude any person, including the accused, whose presence or conduct causes fear to the child.
(e) The court shall issue an order granting or denying the use of live-link television and stating the reasons therefor. It shall consider the following factors:
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the age and level of development of the child; his physical and mental health, including any mental or physical disability; any physical, emotional, or psychological injury experienced by him; the nature of the alleged abuse; any threats against the child; his relationship with the accused or adverse party; his reaction to any prior prior encounters with the accused in court or elsewhere; his reaction prior to trial when the topic of testifying was discussed with him by parents or professionals; specific symptoms of stress exhibited by the child in the days prior to testifying; testimony of expert or lay witnesses; the custodial situation of the child and the attitude of the members of his family regarding the events about which he will testify; and other relevant factors, such as court atmosphere and formalities of court procedure.
(f) The may order that the testimony of the child be taken by live-link television if there is a substantial 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. The trauma must be of a kind which would impair the completeness or truthfulness of the testimony of the child. (g) If the court orders the taking of testimony by live-link television: (i) The child shall testify in a room separate from the courtroom in the presence of the guardian ad litem; one or both of his support persons, the facilitator and interpreter, if any; a court officer appointed by the court; persons necessary to operate the closed-circuit television equipment; and other persons whose presence are determined by the court to be necessary to the welfare and well-being of the child; (ii) The judge, prosecutor, accused, and counsel for the parties shall be in the courtroom. The testimony of the child shall be transmitted by live-link television into the courtroom for viewing and hearing by the judge, prosecutor, counsel for the parties, accused, victim, and the public unless excluded. (iii) If it is necessary for the child to identify the accused at trial, the court may allow the child to enter the courtroom for the limited purpose of identifying the accused, or the court may allow the child to identify the accused by observing the image of the latter on a television monitor. (iv) The court may set other conditions and limitations on the taking of the testimony that it finds just and appropriate, taking into consideration the best interests of the child. (v) The testimony of the child shall be preserved on videotape, digital disc, or other similar devices which shall be made part of the court record and shall be subject to a protective order as provided in Section 31(b).
Videotaped deposition of a child witness (a) The prosecutor, counsel, or guardian ad litem may apply for an order that a deposition be taken of the testimony of the child and that it be recorded and preserved on videotape. Before the guardian ad litem applies for an order under this section, he shall consult with the prosecutor or counsel subject to the second and third paragraphs of section 25(a). (b)
If the court finds that the child will not be able to testify in open court at trial, it shall issue an order that the deposition of the child be taken and preserved by videotape.
(c) The judge shall preside at the videotaped deposition of a child. Objections to deposition testimony or evidence, or parts thereof, and the grounds for the objection shall be stated and shall ruled upon at the time of the taking of the deposition. The other persons who may be permitted to be present at the proceeding are: The prosecutor; The defense counsel; The guardian ad litem; The accused, subject to subsection (e); Other persons whose presence is determined by the court to be necessary to the welfare and well-being of the child; One or both of his support persons, the facilitator and interpreter, if any; The court stenographer; and Persons necessary to operate the videotape equipment. (d) The rights of the accused during trial, especially the right to counsel and to confront and cross-examine the child, shall not be violated during the deposition. (e) If the order of the court is based on evidence that the child is unable to testify in the physical presence of the accused, the court may direct the latter to be excluded from the room in which the deposition is conducted. In case of exclusion of the accused, the court shall order that the testimony of the child be taken by live-link television in accordance with section 25 of this Rule. If the accused is excluded from the deposition, it is not necessary that the child be able to view an image of the accused. (f) The videotaped deposition shall be preserved and stenographically recorded. The videotape and the stenographic notes shall be transmitted to the clerk of the court where the case is pending for safekeeping and shall be made a part of the record. (g) The court may set other conditions on the taking of the deposition that it finds just and appropriate, taking into consideration the best interests of the child, the constitutional rights of the accused, and other relevant factors.
4 (h) The videotaped deposition and stenographic notes shall be subject to a protective order as provided in section 31(b).
(i)
If, at the time of trial, the court finds that the child is unable to testify for a reason stated in section 25(f) of this Rule, or is unavailable for any reason described in section 4(c), Rule 23 of the 1997 Rules of Civil Procedure, the court may admit into evidence the videotaped deposition of the child in lieu of his testimony at the trial. The court shall issue an order stating the reasons therefor.
(j)
After the original videotaping but before or during trial, any party may file any motion for additional videotaping on the ground of newly discovered evidence. The court may order an additional videotaped deposition to receive the newly discovered evidence (Sec. 27).
Hearsay exception in child abuse cases A statement made by a child describing any act or attempted act of child abuse, not otherwise admissible under the hearsay rule, may be admitted in evidence in any criminal or non-criminal proceeding subject to the following rules: (a) Before such hearsay statement may be admitted, its proponent shall make known to the adverse party the intention to offer such statement and its particulars to provide him a fair opportunity to object. If the child is available, the court shall, upon motion of the adverse party, require the child to be present at the presentation of the hearsay statement for crossexamination by the adverse party. When the child is unavailable, the fact of such circumstance must be proved by the proponent. (b) In ruling on the admissibility of such hearsay statement, the court shall consider the time, content and circumstances thereof which provide sufficient indicia of reliability. It shall consider the following factors: Whether there is a motive to lie; The general character of the declarant child; Whether more than one person heard the statement; Whether the statement was spontaneous; The timing of the statement and the relationship between the declarant child and witness; Cross-examination could not show the lack of knowledge of the declarant child; The possibility of faulty recollection of the declarant child is remote; and The circumstances surrounding the statement are such that there is no reason to suppose the declarant child misrepresented the involvement of the accused. (c) The child witness shall be considered unavailable under the following situations: Is deceased, suffers from physical infirmity, lack of memory, mental illness, or will be exposed to sever psychological injury; or Is absent from the hearing and the proponent of his statement has been unable to procure his attendance by process or other reasonable means. (d) When the child witness is unavailable, his hearsay testimony shall be admitted only if corroborated by other admissible evidence (Sec. 28).
Sexual abuse shield rule Inadmissible evidence: The following evidence is not admissible in any criminal proceeding involving alleged child sexual abuse: (a) Evidence offered to prove that the alleged victim engaged in other sexual behavior; and (b) Evidence offered to prove the sexual pre-disposition of the alleged victim.
Exception: Evidence of specific instances of sexual behavior by the alleged victim to prove that a person other than the accused was the source of semen, injury, or other physical evidence shall be admissible. A party intending to offer such evidence must: (a) File a written motion at least fifteen (5) days before trial, specifically describing the evidence and stating the purpose for which it is offered, unless the court, for good cause, requires a different time for filing or permits filing during trial; and (b) Serve the motion on all parties and the guardian ad litem at least three (3) days before the hearing of the motion.
Before admitting such evidence, the court must conduct a hearing in chambers and afford the child, his guardian ad litem, the parties, and their counsel a right to attend and be heard. The motion and the record of the hearing must be sealed and remain under seal and protected by a protected order set forth in section 31(b). The child shall not be required to testify at the hearing in chambers except with his consent (Sec. 30).
Protective Orders (a) Protective order -- Any videotape or audiotape of a child that is part of the court record shall be under a protective order that provides as follows: Tapes may be viewed only by parties, their their counsel, their expert witness, and the guardian ad litem. No tape, or any portion thereof, shall be divulged by any person mentioned in subsection (a) to any other person, except as necessary for the trial.
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No person shall be granted access to the tape, its transcription or any part thereof unless he signs a written affirmation that he has received and read a copy of the protective order; that he submits to the jurisdiction of the court with respect to the protective order; and that in case of violation thereof, he will be subject to the contempt power of the court. Each of the tape cassettes and transcripts thereof made available to the parties, their counsel, and respective agents shall bear a cautionary notice that the object or document and the contents thereof are subject to a protective order issued by the court. No tape shall be given, loaned, sold, or shown to any person except as ordered by the court. Within thirty (30) days from receipt, all copies of the tape and any transcripts thereof shall be returned to the clerk of court for safekeeping unless the period is extended by the court on motion of a party. This protective order shall remain in full force and effect until further order of the court (Sec. 31 [b]).
(a) Additional protective orders The court may, motu propio or on motion of any party, the child, his parents, legal guardian, or the guardian ad litem, issue additional orders to protect the privacy of the child (Sec. 31(c).
(2)
Rule in DNA Evidence (A.M. No. 06-11-5-SC)
Meaning of DNA “DNA” means deoxyribonucleic acid, which is the chain of molecules found in every nucleated cell of the body. The totality of an individual's DNA is unique for the individual, except identical twin. (Sec. 3 [b], A.M. No. 06-11-5-SC).
Who may issue a DNA testing order The appropriate court, at any time, either motu proprio or on application of any person who has a legal interest in the matter in litigation. (Sec. 4) The Rule on DNA Evidence does not preclude the conduct of DNA testing, without need of a prior court order, at the behest of any party, including law enforcement agencies, before a suit or proceeding is commenced.
Conditions of issuance (1) Due notice and hearing; and (2) a showing that: (a) A biological sample exists that is relevant to the case; (b) The biological sample: (i) was not previously subjected to the type of DNA testing now requested; or (ii) was previously subjected to DNA testing, but the results may require confirmation for good reasons; (c) The DNA testing uses a scientifically valid technique; (d) The DNA testing has the scientific potential to produce new information that is relevant to the proper resolution of the case; and (e) The existence of other factors, if any, which the court may consider as potentially affecting the accuracy or integrity of the DNA testing.
Contents of DNA testing order If the court finds that the requirements in Section 4 have been complied with, the court shall – (a) Order that biological samples be taken from any person or crime scene evidence; (b) Impose reasonable conditions on DNA testing designed to protect the integrity of the biological sample, the testing process and the reliability of the test results, and (c) Issue an order requiring all parties to the case or proceedings to witness the DNA testing to be conducted if there not enough samples for confirmatory testing of the other party (Section 5).
The court my order that the result of the DNA testing be simultaneously released to the parties. (Section 5). N.B.: An order granting the DNA testing shall be immediately executory and shall not be appealable. Any petition for certiorari initiated therefrom shall not, in any way, stay the implementation thereof, unless a higher court issues an injunctive order (Section 5). The grant of a DNA testing application shall not be construed as an automatic admission into evidence of any component of the DNA evidence that may be obtained as a result thereof.
Post-conviction DNA testing; remedy Court order is not required. This remedy is available to the prosecution or any person convicted by final and executory judgment provided that: (a) a biological sample exists; (b) such sample is relevant to the case; and (c) the testing would probably result in the reversal or modification of the judgment of conviction (Section 6)
Remedy if the results are favorable to the convict File a petition for a writ of habeas corpus in the court of origin. A similar petition may be filed either in the Court of Appeals or the Supreme Court, or with any member of said courts, which may conduct a hearing thereon or remand the petition to the court of origin and issue the appropriate orders. In case the court, after due hearing, finds the petition to be meritorious, it shall reverse or modify the judgment of conviction and order the release of the convict, unless continued detention is justified for a lawful cause. (Section 10).
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Factors considered in the assessment of probative value of DNA evidence: (a) The chain of custody (i.e., handling and collection biological samples; possibility of contamination of the samples) (b) The DNA testing methodology, including the procedure followed in analyzing the samples, the advantages and disadvantages of the procedure, and compliance with the scientifically valid standards in conducting the tests; (c) The forensic DNA laboratory, including accreditation by any reputable standards-setting institution and the qualification of the analyst who conducted the tests. (d) The reliability of the testing results
N.B.: If the laboratory is not accredited, the relevant experience of the laboratory in forensic casework and credibility must be properly established (Section 7[b]) The provisions of the Rules of Court concerning the appreciation of evidence shall apply suppletorily in assessing the probative value of DNA evidence (Section 7, par. 2).
In assessing the probative value of DNA evidence, therefore, courts should consider, among others things, the following data: how the samples were collected, how they were handled, the possibility of contamination of the samples, the procedure followed in analyzing the samples, whether the proper standards and procedures were followed in conducting the tests, and the qualification of the analyst who conducted the tests (People of the Philippines v. Vallejo, G.R. No. 144656, 9 May 2002).
In assessing the probative value of DNA evidence, courts should consider, inter alia, the following factors: how the samples were collected, how they were handled, the possibility of contamination of the samples, the procedure followed in analyzing the samples, whether the proper standards and procedures were followed in conducting the tests, and the qualification of the analyst who conducted the tests (People of the Philippines v. Yatar, G.R. No. 150224, 19 May 2004).
Evaluation of DNA Testing Results; Factors (a) The evaluation of the weight of matching DNA evidence or the relevance of mismatching DNA evidence; (b) The results of the DNA testing in the light of the totality of the other evidence presented in the case; and (c) DNA results that exclude the putative parent from paternity shall be conclusive proof of non-paternity (Section 9).
If the value of the Probability of Paternity < 99.9%, the results of the DNA testing = corroborative evidence. If the value of the Probability of Paternity > 99.9% or higher = there shall be a disputable presumption of paternity (Section 9[c]).
DNA Testing Orders in paternity and filiation suits In Lucas v. Lucas (G.R. No. 190710, 6 June 2011), the Supreme Court felt the need to supplement Section 4 of the Rule on DNA Evidence and ruled that since a DNA Testing Order could indeed be likened to a “search,” it is proper that during hearings on motions for DNA testing, the movant must present prima facie evidence or establish a reasonable possibility of paternity.
Evaluation of the Reliability of DNA Testing Methodology; Factors (a) The falsifiability of the principles or methods used, that is, whether the theory or technique can be and has been tested; (b) The subjection to peer review and publication of the principles or methods; (c) The general acceptance of the principles or methods by the relevant scientific community; (d) The existence and maintenance of standards and controls to ensure the correctness of data generated; (e) The existence of an appropriate reference population database; and (f) The general degree of confidence attributed to mathematical calculations used in comparing DNA profiles and the significance and limitation of statistical calculations used in comparing DNA profiles (Section 8)
(3) Rules on Electronic Evidence (A.M. No. 01-7-01-SC)
Scope -- The Rules on Electronic Evidence (“REE”) apply whenever an electronic document or electronic data message is offered or used in evidence (REE, Sec. 1).
Meaning of electronic document “Electronic document” refers to information or the representation of information, data, figures, symbols or other modes of written expression, described or however represented: (e) by which a right is established or an obligation extinguished, or (f) by which a fact may be proved and affirmed, which is received, recorded, transmitted, stored, processed, retrieved or produced electronically.
It includes digitally signed documents and any print-out or output, readable by sight or other means, which accurately reflects the electronic data message or electronic document. Under the REE, the term “electronic document” is interchangeably with “electronic data message.” (REE, Rule 2, Sec. 1[h]).
An electronic document shall be regarded as the equivalent of an original document under the Best Evidence Rule, as long as it is a printout or output readable by sight or other means, showing to reflect the data accurately. (Rule 4, Section 1, A.M. No. 01-7-01-SC)
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Thus, to be admissible in evidence as an electronic data message or to be considered as the functional equivalent of an original document under the Best Evidence Rule, the writing must foremost be an "electronic data message" or an "electronic document” (MCC Industrial Sales Corporation v. Ssangyong Corporation, G.R. No. 170633, 17 October 2007).
“Electronic data message” refers to information generated, sent, received or stored by electronic, optical or similar means. (REE, Rule 2, Sec. 1[g]).
Meaning of “electronic signature” “Electronic signature” refers to any distinctive mark, characteristic and/or sound in electronic form, representing the identity of a person and attached to or logically associated with the electronic data message or electronic document or any methodology or procedure employed or adopted by a person and executed or adopted by such person with the intention of authenticating, signing or approving an electronic data message or electronic document. An electronic signature includes digital signatures.. (REE, Rule 2, Sec. 1[j]).
Evidentiary weight of electronic documents Electronic evidence is considered as the functional equivalent of paper-based documents. Whenever a rule of evidence refers to the term writing, document, record, instrument, memorandum or any other form of writing, such term shall include an electronic document (REE, Rule 3, Sec. 1) The electronic document shall be regarded as the equivalent of an original document under the Best Evidence Rule if it is a printout or output readable by sight or other means, shown to reflect the data accurately (REE, Rule 4, Sec. 1). Factors for assessing evidentiary weight: (a) The reliability of the manner or method in which it was generated, stored or communicated, including but not limited to input and output procedures, controls, tests and checks for accuracy and reliability of the electronic data message or document, in the light of all the circumstances as well as any relevant agreement; (b) The reliability of the manner in which its originator was identified; (c) The integrity of the information and communication system in which it is recorded or stored, including but not limited to the hardware and computer programs or software used as well as programming errors; (d) The familiarity of the witness or the person who made the entry with the communication and information system; (e) The nature and quality of the information which went into the communication and information system upon which the electronic data message or electronic document was based; or (f) Other factors which the court may consider as affecting the accuracy or integrity of the electronic document or electronic data message. (REE, Rule 7, Sec. 1).
Integrity of an information and communication system In any dispute involving the integrity of the information and communication system in which an electronic document or electronic data message is recorded or stored, the court may consider, among others, the following factors: (a) Whether the information and communication system or other similar device was operated in a manner that did not affect the integrity of the electronic document, and there are no other reasonable grounds to doubt the integrity of the information and communication system; (b) Whether the electronic document was recorded or stored by a party to the proceedings with interest adverse to that of the party using it; or (c) Whether the electronic document was recorded or stored in the usual and ordinary course of business by a person who is not a party to the proceedings and who did not act under the control of the party using it. (REE, Rule 7, Sec. 2).
Method of Proof All matters relating to the admissibility and evidentiary weight of an electronic document may be established by an affidavit stating facts of direct personal knowledge of the affiant or based on authentic records (REE, Rule 9). The affidavit must affirmatively show the competence of the affiant to testify on the matters contained therein (REE, Rule 9, Sec. 1). The affiant shall be made to affirm the contents of the affidavit in open court and may be cross-examined as a matter of right by the adverse party (REE, Rule 9, Sec. 2).
Authentication of Electronic Documents Manner of authentication: Before any private electronic document offered as authentic is received in evidence, its authenticity must be proved by any of the following means: (a) by evidence that it had been digitally signed by the person purported to have signed the same; (b) by evidence that other appropriate security procedures or devices as may be authorized by the Supreme Court or by law for authentication of electronic documents were applied to the document; or (c) by other evidence showing its integrity and reliability to the satisfaction of the judge. (REE, Rule 5, Sec. 2).
Proof of electronically notarized document: a document electronically notarized in accordance with the rules promulgated by the Supreme Court shall be considered as a public document and proved as a notarial document under the Rules of Court. (REE, Rule 5, Sec. 2).
Authentication of Electronic Signatures An authenticated electronic signature under the REE is admissible in evidence as the functional equivalent of the signature of a person on a written document. (REE, Rule 6, Sec. 1).
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An electronic signature may be authenticated in any of the following manner: (a) By evidence that a method or process was utilized to establish a digital signature and verify the same; (b) By any other means provided by law; or (c) By any other means satisfactory to the judge as establishing the genuineness of the electronic signature. (REE, Rule 6, Sec. 2).
Business records as exception to the hearsay rule “Business records” include records of any business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit, or for legitimate or illegitimate purposes. (REE, Rule 2, Sec. 1[b]).
Inapplicability of the hearsay rule --- A memorandum, report, record or data compilation of acts, events, conditions, opinions, or diagnoses made by electronic, optical or other similar means at or near the time of or from transmission or supply of information by a person with knowledge thereof, and kept in the regular course or conduct of a business activity, and such was the regular practice to make the memorandum, report, record, or data compilation by electronic, optical or similar means, all of which are shown by the testimony of the custodian or other qualified witnesses, is excepted from the rule on hearsay evidence. (REE, Rule 8, Sec. 1).
However, the hearsay rule may be applied to business records as defined under the REE by presenting evidence of the untrustworthiness of: the source of information; the method or circumstances of the preparation, transmission or storage thereof. (REE, Rule 8, Sec. 2).
Audio, photographic, video and ephemeral evidence Audio, video and similar evidence shall be proven: (a) by the testimony of a person who was a party to the same or has personal knowledge thereof. (b) In the absence or unavailability of such witnesses, other competent evidence may be admitted. (c) If the foregoing communications are recorded or embodied in an electronic document, then the provisions of Rule 5 on authentication of electronic documents shall apply.
“Ephemeral electronic communication” refers to telephone conversations, text messages, chatroom sessions, streaming audio, streaming video, and other electronic forms of communication the evidence of which is not recorded or retained.(REE, Rule 2, Sec. 1[k]). Text messages are to be proved by the testimony of a person who was a party to the same or has personal knowledge of them. x x x As the recipient of those messages sent from and to the mobile phone in his possession, [PO3 Cambi] had personal knowledge of such messages and was competent to testify on them (People v. Noel Enojas, et al., G.R. No. 204894, 10 March 2014). The transcript of text messages is considered ephemeral electronic communications. Ephemeral electronic communications are now admissible evidence, subject to certain conditions. “Ephemeral electronic communication” refers to telephone conversations, text messages, chatroom sessions, streaming audio, streaming video, and other electronic forms of communication the evidence of which is not recorded or retained. It may be proven by the testimony of a person who was a party to the communications or has personal knowledge thereof. Under Section 1, Rule 11 of A.M. No. 01-7-01-SC, audio, photographic and video evidence of events, acts or transactions shall be admissible provided it shall be shown, presented or displayed to the court and shall be identified, explained or authenticated by the person who made the recording or by some other person competent to testify on the accuracy thereof. (Ella Bartolome v. Rosalie Maranan, A.M. No. P-11-2979, 18 November 2014).
Text messages have been classified as ephemeral electronic communication under Section 1(k), Rule 2 of the Rules on Electronic Evidence, and shall be proven by the testimony of a person who was a party to the same or has personal knowledge thereof (Vidallon-Magtolis v. Salud, A.M. No. CA-05-20-P, 9 September 2005).
(4) Judicial Affidavit Rule (A.M. No. 12-8-8-SC)
Scope- The Judicial Affidavit Rule shall apply to all actions, proceedings and incidents requiring the reception of evidence before: (a) The Metropolitan Courts, Municipal Trial Courts in Cities, the Municipal Trial Courts, the Municipal Circuit Trial Courts, and the Shari’a Circuit Courts; (b) The Regional Trial Courts and the Shari’a District Courts; (c) The Sandiganbayan, the Court of Tax Appeals, the Court of Appeals, and the Shari’a Appellate Courts; (d) The investigating officers and bodies authorized by the Supreme Court to receive evidence, including the IntegratedBar of the Philippines (IBP); and (e) The special courts and quasi-judicial bodies, whose rules of procedure are subject to the disapproval of the Supreme Court, insofar as their existing rules of procedure contravene the provisions of this Rule Note: The Judicial Affidavit Rule shall not apply to small claims cases under A.M. No. 08-8-7-SC.
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Submission of Judicial Affidavits and Exhibits- The parties shall file with the court and serve on the adverse party, personally or by licensed courier service, not later than five (5) days before pre-trial or preliminary conference or the scheduled hearing with respect to motions and incidents, the following: (a) The judicial affidavits of their witnesses, which shall take the place of such witnesses' direct testimonies; and (b) The parties' documentary or object evidence, if any, which shall be attached to the judicial affidavits (Sec. 2, Judicial Affidavit Rule).
Contents of Judicial Affidavits (Sec 4, Judicial Affidavit Rule) (a) Prepared in the language known to the witness (The Judicial Affidavit shall be accompanied by a translation in English or Filipino if not prepared in a language other than English or Filipino); (b) Name, age, residence or business address, and occupation of the witness; (c) Name and address of the lawyer who conducts or supervises the examination of the witness and the place where the examination is being held; (d) A statement that the witness is answering the questions asked of him, fully conscious that he does so under oath, and that he may face criminal liability for false testimony or perjury; (e) Questions asked of the witness and his corresponding answers, consecutively numbered that: (1) Show the circumstances under which the witness acquired the facts upon which he testifies; (2) Facts relevant to the issues; (3) Identify the attached documentary and object evidence (4) Establish the authenticity of the documentary and object evidence in accordance with the Rules of Court. (f) Signature of the witness over his printed name; (g) Jurat with signature of the notary public who administers the oath or an officer who is authorized by law to administer the same. (h) Sworn Attestation of the lawyer who conducted or supervised the examination of the witness, to the effect that: a. He faithfully recorded or caused to be recorded the questions he asked and the corresponding answers of the witness(es); and b. Neither the lawyer nor other person then present or assisting him coached the witness regarding the latter’s answer.
Effect of False Attestation- a false attestation shall subject the erring lawyer to disciplinary action, including disbarment.
Examination of the witness on his Judicial Affidavit- The adverse party shall have the right to cross-examine the witness on his judicial affidavit and on the exhibits attached to the same. The party who presents the witness may also examine him as on re-direct.
Section 5 of the Judicial Affidavit Rule expressly excludes from its application adverse parties and hostile witnesses. For the presentation of these types of witnesses, the provisions on the Rules of Court under the Revised Rules of Evidence and all correlative rules including the modes of disposition and discovery rules shall apply (Ng Meng Tam v. China Banking Corporation, G.R. No. 214054, 5 August 2015).
Application of Judicial Affidavit Rule to Criminal Actions (Sec. 9, Judicial Affidavit Rule): The Judicial Affidavit Rule shall apply to all criminal actions: (a) Where the maximum of the imposable penalty does not exceed six years; (b) Where the accused agrees to the use of judicial affidavits, irrespective of the penalty involved; or (c) With respect to the civil aspect of the actions, whatever the penalties involved are (Sec. 9).
The prosecution shall submit the judicial affidavits of its witnesses not later than five days (5) before the pre-trial, serving copies if the same upon the accused (Sec. 9). If the accused desires to be heard on his defense after receipt of the judicial affidavits of the prosecution, he shall have the option to submit his judicial affidavit as well as those of his witnesses within ten (10) days from receipt of such affidavits. These affidavits shall serve as direct testimonies of the accused and his witnesses when they appear before the court to testify (Sec. 9).
Effect of non-compliance with the Judicial Affidavit Rule (Sec 8, Judicial Affidavit Rule): o Failure to submit the required Judicial Affidavits: Deemed to have waived their submission The Court, may, however, allow only once the late submission of the same provided: (a) the delay is for a valid reason, (b) the delay would not unduly prejudice the opposing party, and (c) the defaulting party pays a fine of not less than Php1,000 but not more than P5,000, at the discretion of the Court. o o
o
Failure of the witness to appear at the Scheduled Hearing: The witness’ judicial affidavit shall not be considered. Failure of the counsel to appear without valid cause despite notice: The counsel is deemed to have waived his client’s right to confront by cross-examination the witnesses there present. Failure of the Judicial Affidavits to conform to the content and attestation requirements: The Judicial Affidavit shall not be admitted as evidence.
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The Court, may, however, allow only once the subsequent submission of the compliant replacement affidavits before the hearing or trial provided: (a) the delay is for a valid reason, (b) the delay would not unduly prejudice the opposing party, and (c) the defaulting party pays a fine of not less than Php1,000 but not more than P5,000, at the discretion of the Court.
(5)Guidelines to be observed by the Trial Court Judges and Clerks of Court in the conduct of Pre-Trial and use of DepositionDiscovery Measures (A.M. No. 03-1-09-SC)
Purposes: o To abbreviate court proceedings; o To ensure prompt disposition of cases and decongest court dockets; and o To further implement the pre-trial guidelines laid down in Administrative Circular No. 3-99 dated 15 January 1999.
One-Day Examination of Witness Rule- A witness has to be fully examined in one (1) day only. This rule shall be strictly adhered to, subject to the courts’ discretion during trial on whether or not to extend the direct and/or cross-examination for justifiable reasons. o On the last hearing day allotted for each party, he is require to make his formal offer of evidence after the presentation of his las witness and the opposing party is required to immediately interpose his objection thereto.
Most Important Witness Rule- Determine the most important witnesses to be heard and limit the number of witnesses. The facts to be proven by each witness and the approximate number of hours per witness shall be fixed.
(6) Pilot Rules for Preliminary Conference and Trial on the Issues (A.M. No. 12-8-8-SC)
Scope- These Pilot Rules for Preliminary Conference and Trial on the Issues shall apply to all civil actions in certain first and second level courts that have not yet undergone pre-trial.
Rule 22. Preliminary Conference o o o
o
Appearance of parties- It shall be the duty of the parties and their counsels to appear at the preliminary conference (Section 22.6). When non-appearance may be excused – (1) for a valid cause shown or (2) if the party is represented by another person fully authorized to act on his behalf respecting all the matters subject of the conference (Section 22.6). Failure of parties or counsels to appear- The court shall, within thirty (30) days from the date of the scheduled preliminary conference, render a decision adjudicating the other party’s claim after the court’s ex parte examination of such party’s witness or witnesses based on their judicial affidavits (Decision as in default) (Section 22.7). Remedy against Decision as in Default- Motion with the Court, with prior notice to the adverse party that his or her failure to comply with what was required of him or her has been due to: (1) extrinsic fraud or (2) unavoidable accident. If the ground is not meritorious, the court may still grant the motion, set aside the decision of default, and reschedule the preliminary conference, upon admission of error or neglect by the party or his counsel and after payment of fine.
Rule 24. Trial of Issues o Alternate Trial (Section 24.1)- One where the parties take turns in presenting their witnesses respecting the first factual issues or related issues stated in the order of trial. Note: The party who bears the burden of proving the affirmative of the issue under consideration shall be the first to present a witness. o Face-to-face Trial (Section 24.2)- One wherein witnesses from the contending sides appear together before the court, sit face-to-face around a table in a non-adversarial environment, and answer questions from the court as well as the parties’ counsel respecting the factual issue under consideration. o Options for trying the issues- The Court shall have the option to try the issues embodied in the Terms of Reference, either by alternate or face-to-face trial. In case the Court opts to try the issues by face-to-face trial, the court may conduct either simple or regular face-to-face trial. o Common Rules governing both alternate and face-to-face trials : Each factual issue shall be tried strictly in the sequence provided in the Order of Trial although two or more closely related issues may be simultaneously tried; A party may move on proper ground to disqualify a witness before he or she is examined and strike out his or her judicial affidavit or exclude any of the answers found in it on the ground of inadmissibility. A party may likewise move to exclude any of the exhibits attached to the judicial affidavit on the ground of inadmissibility. The court and counsels shall examine the witnesses and determine the truthfulness of the judicial affidavits that constitute their direct testimonies in the case. A witness may testify on one or more issues.
11 o
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When face-to-face examination of witness shall not apply (Section 24.10): The face-to-face examination of witnesses shall not apply when one of the witnesses to the factual issue under consideration is either (a) a child covered by the Rule on Examination of a Child Witness, or (b) a person who is mentally, psychologically, or physically challenged or has a similar condition that puts such witness at a disadvantage in a face-to-face confrontation. Trials shall be intransferable (Section 24.14). As a general rule, because of the numerous persons involved in, and the complex preparations required for the conduct of trial, the dates set for trials shall be intransferable, except on the ground of a fortuitous event or serious illness of a counsel or witness. No motion for postponement or resetting shall be granted on the ground of serious illness of a counsel or witness unless the party concerned presents a medical certificate issued by a physician stating that the illness is of such gravity as to prevent the counsel or witness from attending the scheduled court hearing. The court may order the physician to appear before the court or order another physician to verify the truth If the certification turns out to be false, the certifying physician shall be held in contempt of court and punished accordingly.
RULES 128-132, RULES OF COURT A.
Preliminary Considerations
Rule 128. General Provisions Sec. 1. Evidence defined
Evidence is the means of ascertaining in a judicial proceeding, the truth respecting a matter of fact. Proof is the effect of evidence. It is the probative effect of evidence and is the conviction or persuasion of the mind resulting from a consideration of the latter; while evidence is the cause necessary to establish proof. It is also the mode and manner of proving competent facts. Questions of fact exist when the doubt or difference arises as to the truth or falsehood of alleged facts. Questions of law exist when the doubt or difference arises as to what the law is on a certain set of facts.
Sec. 2. Scope Rules of evidence shall be the same in all courts and in all trials and hearings, except as otherwise provided by law or the Rules of Court. Evidentiary rules under the Rules of Court are specifically applicable only in judicial proceedings. In quasi-judicial proceedings, the same apply by analogy, or in a suppletory character, and whenever practicable and convenient (Rule 1, Sec. 4). Sec. 3. Admissibility of evidence Requisites for admissibility of evidence: (a) Relevance Evidence is admissible when it is relevant to the issue. Relevance is determined by rules of logic and human experience. Relevance depends on the factum probandum, or the ultimate fact sought to be proved. Factum probans is the evidentiary fact or the fact by which the factum probandum is to be established. Factum probandum is the ultimate fact sought to be established. (b) Competence The evidence must not be excluded by law or by the Rules of Court. All facts having rational probative value are admissible unless some specific rule forbids their admission. Evidence on collateral matters shall not be allowed, except when it tends in any reasonable degree to establish the probability or improbability of the fact in issue. Competent evidence refers to evidence which is not excluded by law in a particular case. Credibility – refers to worthiness of belief, that quality which renders a witness worthy of belief (Black’s Law Dictionary, 5th ed., 330). Whether or not a witness or evidence is credible is an issue addressed to the judgment of the trial court (People v. Castro, G.R. No. 172874, 17 December 2008). Sec. 4. Relevancy; collateral matters Evidence must have such a relation to the fact in issue as to induce belief in its existence or non-existence. Evidence on collateral matters shall not be allowed, except when it tends in any reasonable degree to establish the probability or improbability of the fact in issue. B.
Admissibility
Rule 130. Rules of Admissibility
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Multiple admissibility - when evidence is relevant and competent for two or more purposes, such evidence should be admitted for any and all the purposes for which it is offered provided it satisfies all the requirements of law for its admissibility. (Regalado, Remedial Law Compendium [Vol. II], pp. 694-695).
Conditional admissibility - where the evidence at the time it is offered appears to be immaterial or irrelevant unless it is connected with the other facts to be subsequently proved, such evidence may be received on the condition that the other facts will be proved thereafter, otherwise the evidence will be stricken out.
Curative admissibility - when a party offers an inadmissible fact which is received because there is no objection by the other party. The other party does not acquire the right to introduce in reply to the same kind of evidence, except whenever it is needed for removing an unfair prejudice which might otherwise have ensued from the original evidence.
Direct evidence - refers to evidence that directly proves a fact without need to make inference from another fact.
Circumstantial evidence - refers to proof of the fact or facts from which, taken either singly or collectively, the existence of a particular fact in dispute may be inferred as a necessary or probable consequence.
Positive evidence - when a witness affirms that a fact did or did not occur. This is entitled to greater weight since witness relates matters within his personal knowledge.
Negative evidence - a witness states that an event did not occur or that the facts alleged to exist did not actually exist.
A.
Object (Real) Evidence Sec. 1. Object as evidence
Objects as evidence are those addressed to the senses of the court. Object evidence includes any article or object which may be known or perceived by the use of any of the senses – sight (visual), hearing (auditory), touch (tactile), taste (gustatory), or smell (olfactory). Documents may be considered object evidence if the same are presented for the following purposes: (a) to prove their existence or condition or the nature of the handwritings thereon; and (b) to determine the age of the paper used or the blemishes or alterations thereon. Requisites for admissibility: When an object is relevant to the fact in issue, it may be exhibited to, examined or viewed by the court. Court may refuse introduction of object evidence and rely on testimonial evidence alone if: (a) Exhibition of such object is contrary to public policy, morals or decency; But if viewing is necessary in the interest of justice, the evidence may still be exhibited but the court may exclude the public from such view. Viewing may not be refused if the indecent or immoral object constitutes the very basis for the criminal or civil action. (b) To require that it be viewed in court or in an ocular inspection would result in delays, inconvenience and expenses out of proportion to the evidentiary value of such object; (c) Such object evidence would be confusing or misleading; and (d) Testimonial or documentary evidence already presented clearly portrays the object in question as to render viewing unnecessary.
Demonstrative evidence - is evidence in the form of a representation of an object. This is, as opposed to, real evidence, testimony, or other forms of evidence used at trial. Demonstrative evidence is useful in assisting a finder of fact (fact-finder) in establishing context among the facts presented in a case.
Autoptic preference - in legal parlance, simply means a tribunal's self-perception, or autopsy, of the thing itself. (Balingit v. COMELEC, G.R. No. 170300, 9 February 2007). It is referred to as the evidential datum which decision-makers will perceive using their five senses (Anderson, Schum, and Twining, Analysis of Evidence, 2nd Ed.).
Chain of Custody Rule – a method of authenticating evidence which 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. This would include testimony about every link in the chain, from the moment the item was picked up to the time it is offered in evidence, in such a way that every person who touched the exhibit would describe how and from whom it was received, where it was and what happened to it while in the witness' possession, the condition in which it was received and the condition in which it was delivered to the next link in the chain. These witnesses would then describe the precautions taken to ensure that there had been no change in the condition of the item and no opportunity for someone not in the chain to have possession of the same (People of the Philippines v. Dalawis, G.R. No. 179128, 9 November 2015; People v. Punzalan, G.R. No. 199087, 11 November 2015).
The rule on chain of custody under the Section 21, R.A. No. 9165 and its implementing rules expressly demands the identification of the persons who handle the confiscated items for the purpose of duly monitoring the authorized movements of the illegal drugs and/or drug paraphernalia from the time they are seized from the accused until the time
13 they are presented in court. Moreover, as a method of authenticating evidence, the chain of custody rule requires that the admission of an exhibit be preceded by evidence sufficient to support a finding that the matter in question is what the proponent claims it to be. It would include testimony about every link in the chain, from the moment the item was picked up to the time it is offered in evidence, in such a way that every person who touched the exhibit would describe how and from whom it was received, where it was and what happened to it while in the witness’ possession, the condition in which it was received and the condition in which it was delivered to the next link in the chain. These witnesses would then describe the precautions taken to ensure that there had been no change in the condition of the item and no opportunity for someone not in the chain to have possession of the same. Crucial in proving the chain of custody is the marking of the seized drugs or other related items immediately after they are seized from the accused. In this case, however, the records are bereft of any evidence, which would clearly show that the said plastic sachets were indeed marked in the presence of the accused. Nor was there any evidence as to the identity of the individual who brought the seized plastic sachets from the police station to the PNP (Carlito Valencia v. People, G.R. No. 198804, 22 January 2014).
It would include testimony about every link in the chain, from the moment the item was picked up to the time it is offered into evidence, in such a way that every person who touched the exhibit would describe how and from whom it was received, where it was and what happened to it while in the witnesses' possession, the condition in which it was received and the condition in which it was delivered to the next link in the chain.
In warrantless seizures such as a buy-bust operation the physical inventory and photograph shall be conducted at the nearest police station or office of the apprehending officer/team, whichever is practicable, consistent with the "chain of custody" rule (People v. Joselito Beran, G.R. No. 203028, 15 January 2014).
Although ideally the prosecution should offer a perfect chain of custody in the handling of evidence, "substantial compliance with the legal requirements on the handling of the seized item" is sufficient. This Court has consistently ruled that even if the arresting officers failed to strictly comply with the requirements under Section 21 of R.A. No. 9165, such procedural lapse is not fatal and will not render the items seized inadmissible in evidence. What is of utmost importance is the preservation of the integrity and evidentiary value of the seized items, as the same would be utilized in the determination of the guilt or innocence of the accused. In other words, to be admissible in evidence, the prosecution must be able to present through records or testimony, the whereabouts of the dangerous drugs from the time these were seized from the accused by the arresting officers; turned-over to the investigating officer; forwarded to the laboratory for determination of their composition; and up to the time these are offered in evidence. For as long as the chain of custody remains unbroken, as in this case, even though the procedural requirements provided for in Sec. 21 of R.A. No. 9165 was not faithfully observed, the guilt of the accused will not be affected (People v. Ortega, G.R. No. 207392, 2 July 2014).
Although the Court has recognized that minor deviations from the procedures under R.A. No. 9165 would not automatically exonerate an accused, we have also declared that when there is gross disregard of the procedural safeguards prescribed in the substantive law (R.A. No. 9165), serious uncertainty is generated about the identity of the seized items that the prosecution presented in evidence. This doubt cannot be remedied by simply invoking the presumption of regularity in the performance of official duties, for a gross, systematic, or deliberate disregard of the procedural safeguards effectively produces an irregularity in the performance of official duties (People v. Edaño, G.R. No. 188133, 7 July 2014).
The failure of the prosecution to show that the police officers conducted the required physical inventory in the place where the subject shabu was seized does not automatically render accused’s arrest illegal or the items seized from him inadmissible. A proviso was added in the implementing rules that "non-compliance with these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items." Pertinently, it is the preservation of the integrity and evidentiary value of the seized items which must be proven to establish the corpus delicti. The prosecution was able to preserve the integrity and evidentiary value of the said illegal drugs. The concurrence of all elements of the illegal sale of shabu was proven by the prosecution. The chain of custody does not appear to have been broken. The recovery and handling of the seized drugs were satisfactorily established. As correctly found by the appellate court, "no ‘break’ whatsoever in the chain of custody of the prohibited drugs occurred. The testimonial, documentary, and object evidence presented by the prosecution established every link in the custody of the prohibited drugs. This leads to no other conclusion than that the specimen examined by the forensic chemist, which tested positive for shabu, and which were presented as evidence during the trial, were the ones taken from accused-appellant during the buy-bust operation." (People v. Fang, G.R. No. 199874, 23 July 2014).
A buy bust operation is not invalidated by mere non-coordination with the PDEA (People v. Lafaran, G.R. No. 208015, 14 October 2015).
To ensure that the integrity and the evidentiary value of the seized drug are preserved, the chain of custody rule requires the prosecution to be able to account for each link in the chain of custody of the dangerous drug, from the moment it was seized from the accused up to the time it was presented in court. Testimony must be presented on every link in the chain of custody, from the moment the dangerous drug was seized up to the time it is offered in evidence (People of the Philippines v. Quim, G.R. No. 213919, 15 June 2016).
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R.A. No. 9165 and its implementing rules and regulations both state that non-compliance with the procedures thereby delineated and set would not necessarily invalidate the seizure and custody of the dangerous drugs provided there were justifiable grounds for the non-compliance, and provided that the integrity of the evidence of thecorpus delicti was preserved (People of the Philippines v. Enrique Miranda, G.R. No. 206880, 29 June 2016).
Essential links in the chain of custody of seized illegal drugs: (a) the seizure and marking, if practicable, of the illegal drug recovered from the accused by the apprehending officer; (b) the turnover of the illegal drug seized by the apprehending officer to the investigating officer; (c) the turnover by the investigating officer of the illegal drug to the forensic chemist for laboratory examination; and (d) the turnover and submission of the marked illegal drug seized from the forensic chemist to the court. (People v. Fermin and Madayag, Jr., G.R. No. 179344, 3 August 2011).
As provided by the implementing rules and jurisprudence, strict compliance of the requisites under Section 21 of Republic Act No. 9165 can be disregarded as long as the evidentiary value and integrity of the illegal drug are properly preserved; and its preservation can be well established if the chain of custody of illegal drug was unbroken. (People v. Fermin and Madayag, Jr., G.R. No. 179344, 3 August 2011).
Testimony on perfect chain not required -- The Supreme Court held that, “undeniably, a testimony about a perfect chain is not always the standard as it is almost always impossible to obtain an unbroken chain...what is of utmost importance is the preservation of the integrity and the evidentiary value of the seized items.” An astute perusal of Section 21 of the IRR of RA 9165 readily reveals that the custodial chain rule is not to be rigorously applied, provided "the integrity and evidentiary value of the seized items are properly preserved by the apprehending officer/team." Thus, the supposed procedural infirmities alleged by Quiamanlon with regard to the custody, photographing, inventory, and marking of the seized items do not, in any manner, affect the prosecution of the instant case and do not render her arrest illegal or the items seized from her inadmissible (People v. Quiamanlon, G.R. No. 191198, 26 January 2011).
Presentation of confidential informant not indispensable -- The non-presentation of the confidential informant is not fatal to the prosecution’s case. The presentation of an informant is not a requisite in the prosecution of drug cases. The failure to present the informant does not vitiate the prosecution’s cause as his testimony is not indispensable to a successful prosecution for drug-pushing since it would be merely corroborative of, and cumulative with, that of the poseur-buyer who was presented in court and testified on the facts and circumstances of the sale and delivery of the prohibited drug. (People v. Andres, G.R. No. 193184, 7 February 2011).
Failure to immediately mark seized drugs -- The failure to immediately mark seized drugs will not automatically impair the integrity of chain of custody as long as the integrity and the evidentiary value of the seized items have been preserved, as these would be utilized in the determination of the guilt or innocence of the accused. What is essential is that the police officers account for the crucial links in the chain of custody of seized illegal drugs. (People v. Morales, G.R. No. 188608, 9 February 2011).
Failure to take photographs and inventory the same is not fatal as long as the integrity and evidentiary value of seized illegal drugs were preserved. In People v. Presas (G.R. No. 182525, 2 March 2011), the Supreme Court noted that the failure of the prosecution to show that the police officers conducted the required physical inventory and photograph of the evidence confiscated pursuant to said guidelines, does not automatically render accused’s arrest illegal or the items seized from him inadmissible. Notably, the implementing rules of the IRR provide that "non-compliance with these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items." The same provision also states that it must still be shown that there exists justifiable grounds and proof that the integrity and evidentiary value of the evidence have been preserved.
Failure to sign the receipt- The fact that the Receipt/Inventory of Property Seized was not signed by Atty. Gaspe does not undermine the integrity and evidentiary value of the illegal drugs seized from accused-appellants. The failure to strictly comply with the prescribed procedures in the inventory of seized drugs does not render an arrest of the accused illegal or the items seized/confiscated from him inadmissible. What is of utmost importance is the preservation of the integrity and the evidentiary value of the seized items, as the same would be utilized in the determination of the guilt or innocence of the accused (People v. Punzalan, G.R. No. 199087, 11 November 2015).
Presumption of regularity, standing alone, cannot defeat the presumption of innocence -- The presumption that the police officers regularly performed their duty cannot, standing alone, defeat the presumption of innocence of the accused. Generally, law enforcers are presumed to have regularly performed their duty, but this is a mere procedural presumption which cannot overturn the constitutionally recognized presumption of innocence of the accused where lapses in the buy bust operation are shown. An effect of this lapse, as held in Lopez v. People, is to negate the presumption that official duties have been regularly performed by the police officers. Any taint of irregularity affects the whole performance and should make the presumption unavailable (People v. Martin, G.R. No. 193234, 19 October 2011).
Burden of proof and burden of evidence 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. (Rule 131, Sec. 1). Burden of evidence is the duty resting upon a party, by means of evidence, to create or meet a prima facie case.
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Burden of proof never shifts, while burden of evidence is transferred from one litigant to another depending on the progress of trial. Burden of Proof
Burden of Evidence
Civil cases – The burden is on the party who would be defeated if no evidence were given on either side. Criminal cases – The burden is always on the prosecution.
Both civil and criminal cases – The burden lies with the party who asserts an affirmative allegation.
The burden of proof does not shift as it remains throughout the trial with the party upon whom it is imposed.
The burden of evidence shifts from party to party depending on the exigencies of the case in the course of the trial.
The burden of proof is generally determined by the pleading filed by the party.
The burden of evidence is generally determined by the developments of the trial or by provisions of law.
Negative allegations a negative allegation does not have to be proven unless the same is an essential part of the cause of action or defense. However, in civil cases, even if a negative allegation is an essential part of the defense, such does not have to be proven if it is only for the purpose of denying the existence of a document which would properly be in the custody of the adverse party. If the criminal charge is predicated on a negative allegation or that a negative averment is an essential element of the crime - the prosecution has the burden of proving the charge. Where the negative of an issue does not permit of direct proof, or where the facts are more immediately within the knowledge of the accused, the onus probandi rests on him.
Equipoise or equiponderance doctrine Where the evidence on an issue of fact is in equipoise or there is doubt on which side the evidence preponderates, the party having the burden of proof fails upon that issue. (Rivera v. Court of Appeals, et al., G.R. No. 115625, January 23, 1998). Therefore, as neither party was able to make out a case, neither side could establish its cause of action and prevail with the evidence it had. They are thus no better off than before they proceeded to litigate, and, as a consequence thereof, the courts can only leave them as they are (Rivera, supra citing Municipality of Candijay, Bohol v. Court of Appeals, 251 SCRA 530). The equipoise rule finds application if the inculpatory facts and circumstances are capable of two or more explanations, one of which is consistent with the innocence of the accused and the other consistent with his guilt, for then the evidence does not fulfil the test of moral certainty, and does not suffice to produce a conviction. (Bernardino v. People, G.R. Nos. 170453 and 170518, 30 October 2006, 506 SCRA 237, 25).
B.
Documentary Evidence
Documents as evidence consist of writings or any material containing letters, words, numbers, figures, symbols or other modes of written expression offered as proof of their contents (Rule 130, Sec.2). A document is a deed, instrument or other duly authorized paper by which something is proved, evidenced or set forth. (U.S. v. Orera, 11 Phil 596) Documentary evidence is that which is furnished by written instruments, inscriptions and documents of all kinds. (32 CJS 475)
Requisites for admissibility: (a) the document must be relevant; (b) the evidence must be authenticated; (c) the document must be authenticated by a competent witness; and (d) the document must be formally offered in evidence.
Sec. 2. Documentary Evidence 1.
Best Evidence Rule
Best evidence rule, defined When the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document itself (Rule 130, Sec. 3).
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When applicable The rule is applicable when the subject of inquiry is the contents of a document (Rule 130, Sec. 3). The Best Evidence Rule applies only when the terms of a writing are in issue. When the evidence sought to be introduced concerns external facts, such as the existence, execution or delivery of the writing, without reference to its terms, the Best Evidence Rule cannot be invoked (Heirs of Prodon v. Heirs of Alvarez and Clave, G.R. No. 170604, 2 September 2013).
does NOT apply when: (a) to prove facts collateral to the issues, such as the nature, appearance or condition of physical objects or to evidence relating to a matter which does not come from the foundation of the cause of action or defense; or (b) when a party uses a document to prove the existence of an independent fact, as to which the writing is merely collateral or incidental (Lee v. People G.R. No. 159288, 19 October 1 2004).
Sec. 3. Original document must be produced; exceptions
Meaning of original The following are considered originals of a document: (a) The original of the document is one the contents of which are the subject of inquiry (Rule 130, Sec. 4); (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 (Rule 130, Sec. 4); (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 (Rule 130, Sec. 4); (d) An electronic document shall be regarded as the equivalent of an original document under the Best Evidence Rule if it is a printout or output readable by sight or other means, shown to reflect the data accurately. (Rules on Electronic Evidence, Sec. 1); (e) Copies as equivalent of the originals – When a document is in two or more copies executed at or about the same time with identical contents, or is a counterpart produced by the same impression as the original, or from the same matrix, or by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent techniques which accurately reproduces the original. (Rules on Electronic Evidence, Sec. 2)
Under the Rules on Electronic Evidence, copies or duplicates shall not be admissible to the same extent as the original if: a genuine question is raised as to the authenticity of the original; or in the circumstance it would be unjust or inequitable to admit the copy in lieu of the original. (Rules on Electronic Evidence, Sec. 2)
Sec. 4. Original of document 2.
Secondary Evidence
Sec. 5. When original document is unavailable Sec. 6. When original document is in adverse party’s custody or control Sec. 8. Party who calls for document not bound to offer it.
Requisites for introduction of secondary evidence Secondary evidence is allowed in the following instances:
(1) When original is unavailable (Rule 130, Sec. 5) – there must be proof by satisfactory evidence of: a.
b. c.
due execution of the original; how to prove due execution: i. testimony of person/s who executed document; ii. testimony of the person before whom its execution was acknowledged; or iii. any person who was present and saw it executed and delivered or who thereafter saw it and recognized the signatures, or one to whom the parties thereto had previously confessed the execution thereof loss, destruction or unavailability of all such originals; and Reasonable diligence and good faith in the search for or attempt to produce the original.
Secondary evidence which could be introduced after proving unavailability of the original (in the order stated): i. Copy of said document; ii. Recital of its contents in an authentic document; or iii. Recollection of witnesses.
Nevertheless, where the law specifically provides for the class and quantum of secondary evidence to establish the contents of a document, or bars secondary evidence of a lost document, such requirement is controlling.
(2) When original is in adverse party’s custody or control – requisites: a.
Document is in the custody or under the control of adverse party;
17 b. c.
He must have reasonable notice to produce it; If after such notice and after satisfactory proof of its existence, he fails to produce the document, secondary evidence may be presented as in the case of its loss.
Where the nature of the action is in itself a notice, as where it is for the recovery or annulment of documents wrongfully obtained or withheld by the other party, no notice to produce said documents is required. (Warner, Barnes & Co., Ltd. v. Buenaflor, 36 OG 3290) A party who calls for the production of a document and inspects the same is not obliged to offer it as evidence (Rule 130, Sec. 8).
(3) 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. (Rule 130, Sec. 3[c]). – requisites: a. the voluminous character of the records must be established; and b. such records must be made accessible to the adverse party so that their correctness may be tested on cross-examination
(4) When the original is a public record
When the original of document is in the custody of public officer or is recorded in a public office, its contents may be proved by a certified copy issued by the public officer in custody thereof.
3.
Parol Evidence Rule
Sec. 7. Evidence admissible when original document is a public record Sec. 9. Evidence of written agreements
The written agreement is already considered to contain all the things agreed upon. Being a final agreement any extraneous evidence or parol evidence is inadmissible for any of the following purposes: (a) to modify, (b) to explain; or (c) to add to the terms of the written agreement.
Parol Evidence refers to any evidence aliunde, whether oral or written, which is intended or tends to vary or contradict a complete and enforceable agreement embodied in a document.
Requisites for the application of Parol Evidence Rule a. There is a valid contract; b. The terms of agreement reduced to writing; c. There is an issue as to the terms of agreement; d. The dispute is between parties and their successors in interest (Rule 130, Sec. 9).
When parol evidence can be introduced: A party may present evidence to modify, explain or add to the terms of written agreement if he puts in issue in his pleading: An intrinsic ambiguity, mistake or imperfection in the written agreement; The failure of the written agreement to express the true intent and agreement of the parties thereto; The validity of the written agreement; or The existence of other terms agreed to by the parties or their successors in interest after the execution of the written agreement. (Rule 130, Sec. 9)
In sum, two (2) things must be established for parol evidence to be admitted: first, that the existence of any of the four (4) exceptions has been put in issue in a party’s pleading or has not been objected to by the adverse party; and second, that the parol evidence sought to be presented serves to form the basis of the conclusion proposed by the presenting party (Spouses Paras v. Kimwa Construction and Development, G.R. No. 171601, 8 April 2015).
The Parol Evidence Rule does not apply, and may not properly be invoked by either party to the litigation against the other, where at least one party to the suit is not a party or privy of a party to the written instrument in question and does not base a claim or assert a right originating in the instrument of the relation established thereby. Thus, if one of the parties is a complete stranger to the contract, he is not bound by the rule. (See Rule 130, Sec. 9, par. 1)
Parol evidence cannot be introduced to alter or modify the express terms of the “Kasunduan.” It is settled that the agreement or contract between the parties is the formal expression of the parties’ rights, duties, and obligations and is the best evidence of the parties’ intention. Thus, when the terms of an agreement have been reduced into 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 (Carganillo v. People, G.R. No. 182424, 22 September 2014).
Parol evidence is based upon the consideration that when the parties have reduced their agreement on a particular matter into writing, all their previous and contemporaneous agreements on the matter are merged therein. (De Guzman v. Calma, 100 Phil 1008).
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Parol Evidence Rule v. Best Evidence Rule
Parol Evidence Rule
Best Evidence Rule
Original document is available in court.
Original writing is not available and/or there is a dispute as to whether said writing is the original.
The rule prohibits the varying of the terms of a written agreement.
The rule prohibits the introduction of substitutionary evidence in lieu of the original document.
With the exception of wills, this rule applies only to documents which are contractual in nature (“written agreements”).
The rule applies to all kinds of writings.
This rule can be invoked only when the controversy is between the parties to the written agreement, their privies, or any party directly affected thereby, e.g. cestui que trust.
This rule can be invoked by any party to an action regardless of whether or not such party has participated in the writing involved.
Sec. 10. Sec. 11. Sec. 12. Sec. 13. Sec. 14. Sec. 15. Sec. 16. Sec. 17. Sec. 18. Sec. 19.
4. Interpretation of documents Interpretation of a writing according to its legal meaning Instrument construed so as to give effect to all provisions Interpretations according to intention; general and particular provisions Interpretation according to circumstances Peculiar signification of terms Written words control printed Experts and interpreters to be used in explaining certain writings Of two constructions, which preferred Construction in favor of natural right Interpretation according to usage C. Testimonial Evidence 1. Qualification of witnesses
Sec. 20. Witnesses; their qualifications
All persons who can perceive, and perceiving, can make their known perception to others, may be witnesses (Rule 130, Sec. 20). Religious or political belief, interest in the outcome of the case, or conviction of a crime unless otherwise provided by law, shall not be ground for disqualification (Rule 130, Sec. 20).
Competency vs. credibility of a witness A competent witness is one who is not excluded by law or the Rules of Court from being a witness. Competency is determined by the prevailing exclusionary rules of evidence. A credible witness is one who being competent to give evidence, is worthy of belief (Black’s Law Dictionary). It is well-settled that the determination of the credibility of the witnesses is correctly assigned to the trial court, which is in the best position to observe the demeanor and bodily movements of all the witnesses (People v. Banzuela, G.R. No. 202060, 11 December 2013). Sec. 21. Disqualification by reason of mental incapacity or immaturity
The following persons cannot be witnesses: (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 (Rule 130, Sec. 21)
Minority, alone, is not a sufficient ground for disqualification. Leeway should be given to witnesses who are minors, especially when they are relating past incidents of abuse (People v. Dominguez, G.R. No. 191065, 13 June 2011). Thus, a child may still be a witness as long as the following are shown: (a) capacity of observation; (b) capacity of recollection; and (c) capacity of communication (People v. Mendoza, G.R. No. 113791, 22 February 1996, 254 SCRA 18).
Mental retardation per se does not affect credibility (People v. Rosales, G.R. No. 197537, 24 July 2013).
Mental unsoundness of the witness at the time of the event testified to affects only his or her credibility. As long as the witness can convey ideas by words or signs and gives sufficiently intelligent answers to the questions propounded, she is a competent witness even if she is a mental retardate (People v. Maceda, G.R. No. 138805, 28 February 2001, 353 SCRA 228). Sec. 22. Disqualification by reason of marriage
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General Rule: During their marriage, spouses may not testify for or against the other without the consent of the affected spouse. (Rule 130, Sec. 22).
Exceptions: 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. (Rule 130, Sec. 22).
Requisites for spousal immunity (a) Valid marriage; and (b) Other spouse is a party to the action.
Waiver of spousal immunity The objection to the competency of the spouse must be made when he or she is first offered as a witness. Failure to make a timely objection is tantamount to waiver of spousal immunity (People v. Pansensoy, G.R. No. 140634. 12 September 2002).
Spousal immunity in cases where a spouse is jointly charged with other accused: The testimony of a wife of an accused, when timely objected to, is inadmissible against the latter. However, the same may be admitted as against other persons jointly charged in said case. (People v. Quidato, Jr. G.R. No. 140634, 12 September 2002).
Estranged spouses The disqualification does not apply in case of estranged spouses. Where 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 upon such harmony and tranquility fails. In such a case, identity of interests disappears and the consequent danger of perjury based on that identity is non-existent. Likewise, in such a situation, the security and confidences of private life, which the law aims at protecting, will be nothing but ideals, which through their absence, merely leave a void in the unhappy home (Alvarez v. Ramirez, G.R. No. 143439, 14 October 2005).
Sec. 23. Disqualification by reason of death or insanity of adverse party Dead man’s statute or survivor’s disqualification rule, where applicable cases against an executor or administrator or other representative of a deceased person upon a claim or demand against the estate of a deceased person; or against a person of unsound mind, upon a claim or demand against the estate of such person of unsound mind (Rule 130, Sec. 23).
When not applicable Ordinary witnesses, who are not the plaintiff, assignor of plaintiff, or person in whose behalf the case is prosecuted. (Bajenting v. Bañez, G.R. No. 166190, 20 September 2006). Officers and/or stockholders of a corporation are not disqualified from testifying, for or against a corporation which is a party to an action upon a claim or demand against the estate of a deceased person, as to any matter of fact occurring before the death of such deceased person. (Lichauco v. Atlantic Gulf, G.R. No. L-2016, 23 August 1949). When there is an imputation of fraud against the deceased which had been established beyond all doubt, the plaintiff is not barred from testifying to such fraud. The Dead Man’s Statute is not designed to shield wrongdoers and to render a plaintiff incompetent to testify to fraudulent transactions of the deceased (Ong Chua v. Carr, 53 Phil. 975; Go Chi Gun v. Co Cho, 96 Phil. 622). When the plaintiff is the executor, administrator or legal representative of the deceased, or the person of unsound mind, the defendant or defendants are free to testify against the plaintiff (Tongco v. Vianzon, 50 Phil. 698). When the survivor's testimony refers to a negative fact. (Mendezona v. Vda. de Goitia, 54 Phil. 557). When the survivor's testimony is favorable to the deceased (Icard v. Marasigan, 71 Phil. 419). Testimony on transactions with agent of deceased or incompetent party (Goni, et al., v. Court of Appeals, et al., 144 SCRA 231).
How waived By not objecting to plaintiff's testimony on prohibited matters (Marella v. Reyes, 12 Phil. 1). By cross-examining the plaintiff on prohibited matters. (Tongco v. Vianzon, 50 Phil. 698). By calling witnesses to testify on prohibited matters. (Arroyo v. Azur, 76 Phil. 493). When the plaintiff's deposition is taken by the representative of the estate or when counsel for the representative crossexamined the plaintiff as to matters occurring during the deceased's lifetime (Goni, et al., v. Court of Appeals, et al., 144 SCRA 231).
Dead man’s statute vs. marital disqualification rule Dead Man’s Statute
Marital Disqualification Rule
20 Not completely disqualified but is only prohibited from testifying on the matters therein specified.
Complete and absolute disqualification.
Applies only to a civil case or special proceeding over the estate of the deceased or insane person.
Applies to a civil or criminal case, subject to the two exceptions provided.
Sec. 24. Disqualification by reason of privileged communication (a) Husband and wife (Marital Privilege Rule) 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.
Applicability: Scope of protection extends during or after the marriage. (Rule 130, Sec. 24 [a]). Since the confidential nature of the communication is the basis of the privilege, the same cannot be invoked where it was not intended to be kept in confidence by the spouse who received the same, as in the case of a dying declaration of the husband to his wife as to who was his assailant.
Waiver of protection: (a) Failure to object to presentation; or (b) Through any conduct that may be construed as implied consent (Lacurom v. Jacoba, A.C. No. 5921, 10 March 2006).
Spousal immunity rule vs. marital privilege rule Spousal Immunity Rule
Marital Privilege Rule
Can be invoked only if one of the spouses is a party to the action.
Can be claimed whether or not the spouse is a party to the action.
Applies only if marriage is existing at the time the testimony is offered.
Can be claimed even after the marriage had been dissolved.
Constitutes a total prohibition against any testimony for or against the spouse of the witness.
Applies only to confidential communications between the spouses.
(b) Attorney-client privilege rule
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.
Requisites: (i) Relationship of lawyer and client; (ii) Privilege is invoked with respect to a confidential communication between them in the course of, or with the view of professional employment; (iii) Client has not given his consent to the disclosure of the communication. (Rule 130, Sec. 24[b]; Disini v. Sandiganbayan, G.R. No. 180564, 22 June 2010).
Persons covered: (i) The attorney; (ii) The 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 (Rule 130, Sec. 24[b]).
Waiver of protection The client may waive the protection of the Attorney-Client Privilege Rule. If the client waives the privilege, even his attorney cannot invoke it.
The Regala Doctrine General Rule: A lawyer may NOT invoke the privilege and refuse to divulge the name or identity of his client.
21
Exceptions: (1) When a strong probability exists that revealing the name would implicate that person in the very same activity for which he sought the lawyer’s advice; (2) When disclosure would open the client to liability; (3) When the name would furnish the only link that would form the chain of testimony necessary to convict (Regala v. Sandiganbayan, G.R. No. 105938, 20 September 1996).
(c) 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 capacity, and which would blacken the reputation of the patient.
Requisites: (i) The physician is authorized to practice medicine, surgery or obstetrics; (ii) The information was acquired or the advice or treatment was given by him in his professional capacity for the purpose of treating and curing the patient (iii) The information, advice or treatment, if revealed, would blacken the reputation of the patient; (iv) The privilege is invoked in a civil case whether the patient is a party thereto or not (Rule 130, Sec. 24 [c]).
Meaning of “professional capacity” The physician may be considered to be acting in his professional capacity when he attends to the patient for curative, preventive, or palliative treatment. Thus, only disclosures which would have been made to the physician to enable him to "safely and efficaciously to treat his patient" are covered by the privilege. (Lim v. Court of Appeals, G.R. No. 91114, 25 September 1992).
Waiver of protection This privilege belongs to the patient, so that it is only he that can claim or waive it. It is waivable expressly or impliedly (See Penn. Mutual Life Ins. Co. v. Wiler, 100 Ind. 92). Example: Under Rule 28, the court may order a party to submit to a physical or mental examination, so long as the mental or physical condition is in dispute. The party examined may request a report of the examination. By doing so, he waives any privilege he may have in that action regarding the testimony of every other person who has examined him in respect of the same examination (Rule 28, Sec. 4). Information elicited during consultation with a physician in the presence of third parties removes such information from the mantle of the privilege (Lim v. Court of Appeals, G.R. No. 91114, 25 September 1992). What is protected is the tenor of the consultation. The number of times a patient consulted with his doctor is not privileged. (Lim v. Court of Appeals, supra).
(d) Minister/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. (e) State Secrets Rule 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. Public interest is paramount. The rule that a public officer cannot be examined as to communications made to him in official confidence does not apply when there is nothing to show that the public interest would suffer by the disclosure in question (Banco Filipino v. Monetary Board, 142 SCRA 523). (f)
Parental and Filial Privilege Rule No person may be compelled to testify against his parents, other direct ascendants, children or other direct descendants (Rule 130, Sec. 25). No descendant shall be compelled, in a criminal case, to testify against his parents and grandparents, except when such testimony is indispensable in a crime against the descendant or by one parent against the other (Family Code, Article 215).
(g) Newsman’s Privilege The publisher, editor or duly accredited reporter of any newspaper, magazine or periodical of general circulation cannot be compelled to reveal the source of any news report or information appearing in said publication which was related in confidence to him, unless the court or a House or committee of Congress finds that such revelation is demanded by the security of the State (See R.A. No. 53, as amended by R.A. No. 1477, the “Shield Law”). (h) Privilege under the Labor Code All information and statements made at conciliation proceedings shall be treated as privileged communications and shall not be used as evidence in the NLRC, and conciliators and similar officials shall not testify in any court or body regarding any matter taken up at the conciliation proceedings conducted by them (Labor Code, Art. 233). (i)
Privileged Information under the RA 10361 of the Kasambahay Law
22
(j)
Prohibition Against Privileged Information. – All communication and information pertaining to the employer or members of the household shall be treated as privileged and confidential, and shall not be publicly disclosed by the domestic worker during and after employment. Such privileged information shall be inadmissible in evidence except when the suit involves the employer or any member of the household in a crime against persons, property, personal liberty and security, and chastity. (Kasambahay Law, Sec. 10)
Privilege under Alternative Dispute Resolution (ADR) laws
Mediation Information obtained through mediation shall be privileged and confidential (R.A. No. 9285, Sec. 9[a]). A party, a mediator, or a nonparty participant may refuse to disclose and may prevent any other person from disclosing a mediation communication (R.A. No. 9285, Sec. 9[b]). Confidential information obtained during mediation shall not be subject to discovery and shall be inadmissible in any adversarial proceeding, whether judicial or quasi-judicial. However, evidence or information that is otherwise admissible or subject to discovery does not become inadmissible or protected from discovery solely by reason of its use in a mediation (R.A. No. 9285, Sec. 9[b]). In such an adversarial proceeding, the following persons involved or previously involved in a mediation may not be compelled to disclose confidential information obtained during mediation: (1) the parties to the dispute; (2) the mediator; (3) the counsel for the parties; (4) the nonparty participants; (5) any persons hired or engaged in connection with the mediation as secretary, stenographer, clerk or assistant; and (6) any other person who obtains or possesses confidential information by reason of his/her profession (R.A. No. 9285, Sec. 9[c]).
Arbitration The arbitration proceedings, including the records, evidence and the arbitral award, shall be considered confidential and shall not be published except (1) with the consent of the parties, or (2) for the limited purpose of disclosing to the court of relevant documents in cases where resort to the court is allowed herein. Provided, however, that the court in which the action or the appeal is pending may issue a protective order to prevent or prohibit disclosure of documents or information containing secret processes, developments, research and other information where it is shown that the applicant shall be materially prejudiced by an authorized disclosure thereof (R.A. No. 9285, Sec. 23).
2. Testimonial privilege Sec. 25. Parental and filial privilege 3. Admissions and confessions (a) Res inter alios acta rule The maxim res inter alios acta alteri nocere non debet literally means “things done between strangers ought not to injure those who are not parties to them” (Black’s Law Dictionary, 5th ed., 1178).
Though some claim that partnerships and joint ventures are totally different animals, there are very few rules that differentiate one from the other; thus, joint ventures are deemed "akin" or similar to a partnership. In fact, in joint venture agreements, rules and legal incidents governing partnerships are applied. Obviously, as the intricate web of "ventures" entered into by and among petitioners and MBMI was executed to circumvent the legal prohibition against corporations entering into partnerships, then the relationship created should be deemed as "partnerships," and the laws on partnership should be applied. Thus, a joint venture agreement between and among corporations may be seen as similar to partnerships since the elements of partnership are present. Considering that the relationships found between petitioners and MBMI are considered to be partnerships, then the CA is justified in applying Sec. 29, Rule 130 of the Rules by stating that "by entering into a joint venture, MBMI have a joint interest" with Narra, Tesoro and McArthur (Narra Nickel Mining and Development Corp. v. Redmont Consolidated Mines Corp., G.R. No. 195580, 21 April 2014).
The res inter alios acta rule has two branches, to wit: i. The rule that the rights of a party cannot be prejudiced by an act, declaration, or omission of another, except as hereinafter provided (Rule 130, Sec. 128); and ii. The rule that the 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 similar thing at another time (Rule 132, Sec. 34).
(b) Admission by a party
Admission and confession, distinguished Admission
Confession
23 It is a statement of fact which does not involve an acknowledgement of guilt or liability.
It involves an acknowledgement of guilt or liability.
It may be express or tacit.
It must be express.
It may be made by third persons and, in certain cases, are admissible against a party.
It can be made only by the party himself and, in certain cases, are admissible against his coaccused.
Sec. 26. Admissions of a party
An admission is an act, declaration or omission of a party as to a relevant fact which may be given in evidence against him (Rule 130, Sec. 2).
The res inter alios acta rule under Section 28, Rule 130 of the Rules on Evidence, which states that the rights of a party cannot be prejudiced by an act, declaration, or omission of another, unless the admission is by a conspirator under the parameters of Section 30 of the same Rule. The foregoing rule constitutes a technical rule on evidence which should not be rigidly applied in the course of preliminary investigation proceedings (Reyes v. Ombudsman, G.R. Nos. 212593-94, 15 March 2016).
Sec. 27. Offer of compromise not admissible Sec. 28. Admission by third party
General rule: The rights of a party CANNOT be prejudiced by an act, declaration, or omission of another (Rule 130, Sec. 28). *This is also known as the first branch of the Res Inter Alios Acta Rule (from “res inter alios acta alteri nocere non debet”).
Exceptions: (a.k.a. “vicarious admissions”) (a) Admissions by partner (Rule 130, Sec. 29); (b) Admissions by agent or one who has a joint-interest with the party (Rule 130, Sec. 29); (c) Admission of co-conspirator (Rule 130, Sec. 30); (d) Admission of privy of the party (Rule 130, Sec. 30). Sec. 29. Admission by co-partner or agent
The act or declaration of a partner or agent of the party may be given in evidence against such party under the following requirements: (e) That the partnership, agency or joint interest is established by evidence other than the act or declaration; (f) That the act/declaration must have been within the scope of the partnership, etc; (g) Such act/declaration must have been made during the existence of the partnership, etc (Rule 130, Sec. 29).
Sec. 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: (h) The conspiracy is shown by evidence aliunde; (i) The admission was made during the existence of the conspiracy; and (j) The admission relates to the conspiracy itself. (Rule 130, Sec. 30; Tamargo v. Antiporda, G.R. No. 177727, 19 January 2010).
This rule applies only to extra-judicial acts or declaration of a co-conspirator, but NOT to testimony given on the stand at the trial, where the defendant has the opportunity to cross-examine the declarant. And while the testimony of accomplices or confederates in crime is always subject to grave suspicion, "coming as it does from a polluted source," and should be received with great caution and doubtingly examined, it is nevertheless admissible and competent (People v. Serrano, G.R. No. L-7973, 27 April 1959). Sec. 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.
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Requisites: (a) There must be a relation of privity between the party and the declarant; (b) The admission was made by the declarant, as predecessor in interest, while holding title to the property; and (c) The admission is in relation to said property (Rule 130, Sec. 31).
Privity in estate may have arisen by: (1) succession; (2) by acts mortis causa; or (3) by acts inter vivos. Sec. 32. Admission by silence
Requisites -- Any act or declaration made in the presence and within the 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, may be given in evidence against him, under the following requisites: (a) He must have heard or observed the act or declaration of the other person; (b) He must have had the opportunity to deny it; (c) He must have understood the statement. (d) He must have an interest to object as he would naturally have done if the statement was not true; (e) The facts are within his knowledge; and (f) he fact admitted or the inference to be drawn from his silence is material to the issue. (Rule 130, Sec. 32; People v. Ciobal, G.R. No. 86220, 20 April 1990; People v. Ranario, 49 Phil. 220)
When not applicable Accused’s refusal to be a witness during trial (Art. III, Sec. 17, 1987 Constitution). Silence during official investigation (Art. III, Sec. 12, 1987 Constitution; U. S. v. De la Cruz, 12 Phil., 87). Where the party had a justifiable reason to remain silent [e.g. acting on advice of counsel]. (People v. Fong, G.R. No. L-7615, 14 March 1956).
When applicable to statements made in writing The rule on admission by silence applies to adverse statements in writing if the party was carrying on a mutual correspondence with the declarant. However, if there was no such mutual correspondence, the rule is relaxed on the theory that while the party would have immediately reacted by a denial if the statements were orally made in his presence, such prompt response can generally not be expected if the party still has to resort to a written reply (Villanueva v. Balaguer, G.R. No. 180197, 23 June 2009).
Voluntary re-enactment Voluntary participation in the re-enactment of the crime conducted by police is considered tacit admission of complicity. In such cases, the accused actually committed positive acts without protest or denial when he was free to refuse. Had he not actually participated in the commission of the offense for which he is charged, he would have protested being made to take part in the reenactment thereof (People v. Fong, G.R. No. L-7615, 14 March 1956). Sec. 33. Confession
The declaration of an accused acknowledging his guilt of the offense charged, or of any offense necessarily included therein, may be given in evidence against him (Rule 130, Sec. 33).
Judicial confession - one made before a court in which the case is pending and in the course of legal proceedings therein; can sustain conviction by itself. requisites: (a) It must be a categorical acknowledgement of guilt; (b) It must be made by an accused in a criminal case; and (c) It is without any exculpatory statement or explanation.
Extrajudicial confession -- one made in any other place or occasion and cannot sustain a conviction unless corroborated by evidence of the corpus delicti. (Rule 133, Sec. 3). Requisites: (a) It must be voluntary; (b) It must be made with the assistance of a competent and independent counsel; (c) It must be express; and (d) It must be in writing (People v. Domantay, G.R. No. 130612, 11 May 1999).
Corpus delicti means the substance of the crime; it is the fact that a crime has actually been committed (People v. De Leon, G.R. No. 180762, 4 March 2009). In arson, the corpus delicti is generally satisfied by proof of the bare occurrence of the fire, e.g., the charred remains of a house burned down and of its having been intentionally caused. In murder or homicide, the corpus delicti is the fact of death (People v. Garcia, 99 Phil. 381), which may be proved even circumstantially (People v. Sasota, 91 Phil. 111; People v. Moro Ansang, 93 Phil. 44). In robbery or theft, the fact of loss (People v. Niem, 75 Phil. 668). In an affray, the fact that pistol shots were heard and a bystander was killed by one of the shots constitute evidence of corpus delicti, which is the violent death of a person, whether feloniously caused or not (People v. Nocum, 77 Phil. 1018)
Extrajudicial confession is not binding upon third parties
25
An extrajudicial confession is binding only on the confessant, is not admissible against his or her co-accused, and is considered as hearsay against them. The reason for this rule is that on a principle of good faith and mutual convenience, a man’s own acts are binding upon himself, and are evidence against him. So are his conduct and declarations. Yet it would not only be rightly inconvenient, but also manifestly unjust, that a man should be bound by the acts of mere unauthorized stranger (Tamargo v. Awingan, G.R. No. 177727, 19 January 2010).
Extrajudicial confessions, when admissible against co-accused While the general rule is that an extra-judicial confession of an accused is binding only upon himself and is not admissible against his co-accused, it has been held that such a confession is admissible against a co-accused where the confession is used as circumstantial evidence to show the probability of participation by the co-conspirator (People v. Condemna, L-22426, 29 May 1968), and where the co-conspirator's confession is corroborated by other evidence (People v. Victor, G.R. No. 75154-55, 6 February 1990).
Extrajudicial confession not admissible when confessant was not assisted by counsel An extrajudicial confession executed without the assistance of independent and competent counsel is inadmissible in evidence. (People v. Velarde, G.R. No. 139333, 18 July 2002). A municipal mayor cannot be considered as a competent and independent counsel qualified to assist a person under custodial investigation (People v. Velarde, supra).
Extrajudicial confession vs. res gestae Where the verbal extrajudicial confession was made without counsel, but it was spontaneously made by the accused immediately after the assault, the same is admissible, not under the confession rule, but as part of the res gestae (People v. Tampus, G.R. No. L44690, 28 March 1980).
Statements during press-conference The constitutional procedures on custodial investigation do not apply to a spontaneous statement, not elicited through questioning by the authorities, but given in an ordinary manner whereby accused orally admitted having committed a crime. The rights under Sec. 12 are guaranteed to preclude the slightest use of coercion by the State as would lead the accused to admit something false, not to prevent him from freely and voluntarily telling the truth. (People v. Mantung, G.R. No. 130372, 20 July 1999). 4.
Previous conduct as evidence
Sec. 34. 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 similar thing at another time(Rule 130, Sec. 34). However, such evidence may be received to prove a specific intent or knowledge; identity, plan, system, scheme, habit, custom or usage, and the like (Rule 130, Sec. 34).
Sec. 35. Unaccepted offer 5.
Testimonial knowledge
Sec. 36. Testimony generally confined to personal knowledge; hearsay excluded
Hearsay evidence - any evidence, whether oral or documentary, whose probative value is based not on personal knowledge of the witness but on the knowledge of some other person not on the witness stand. If a party does not object, the hearsay evidence is admissible. Illustration: The repeated failure of the party to cross-examine the witness is an implied waiver of such right and the testimony of the said witness who died thereafter should not be excluded from the record (Savory Luncheonette v. Lakas ng Manggagawang Pilipino, G.R. No. L-38964, 31 January 31). But hearsay evidence not objected to is admissible, it has no probative value. Hearsay evidence whether objected to even if or not has no probative value (People v. Parungao, G.R. No. 125812, 28 November 1996). The real basis for the exclusion of hearsay evidence lies in the fact that hearsay testimony is not subject to the tests which can ordinarily be applied for the ascertainment of the truth of testimony, since the declarant is not present and available for crossexamination (Mollaneda v. Umacob, G.R. No. 140128, 6 June 2001). The reason for the exclusion of hearsay evidence is that the party against whom the hearsay testimony is presented is deprived of the right or opportunity to cross-examine the person to whom the statements are attributed. Moreover, the court is without opportunity to test the credibility of hearsay statements by observing the demeanor of the person who made them. In the instant case, the declarant, AAA herself, was sworn as a witness to the fact testified to by her mother. Accused-appellant's counsel even cross-examined AAA. Moreover, the trial court had the opportunity to observe AAA's manner of testifying. Hence, the testimony of AAA's mother on the incident related to her by her daughter cannot be disregarded as hearsay evidence. (People v. Padit, G.R. No. 202978, 1 February 2016) Probable cause can be established with hearsay evidence, as long as there is substantial basis for crediting the hearsay. Hearsay evidence is admissible in determining probable cause in a preliminary investigation because such investigation is merely preliminary, and does not finally adjudicate rights and obligations of parties. However, in administrative cases, where rights and obligations are finally adjudicated, what is required is "substantial evidence" which cannot rest entirely or even partially on hearsay evidence. Substantial basis is not the same as substantial evidence because substantial evidence excludes hearsay evidence while substantial basis can include hearsay evidence. (Estrada v. Ombudsman, G.R. Nos. 212140-41, 21 January 2015).
26
Two concepts of hearsay evidence: (a) Second hand information (not derived from personal knowledge of witness); and (b) Testimony by a witness derived from his personal knowledge but the adverse party is not given opportunity to crossexamine.
Principle of independently relevant statements The doctrine on independently relevant statements holds that conversations communicated to a witness by a third person may be admitted as proof that, regardless of their truth or falsity, they were actually made. Evidence as to the making of such statements is not secondary but primary, for in itself it (a) constitutes a fact in issue or (b) is circumstantially relevant to the existence of such fact (Republic v. Heirs of Alejega, G.R. No. 146030, 3 December 2002). 6.
Exceptions to the hearsay rule
Sec. 37. Dying Declaration
Dying declaration is an ante mortem statement or statement in articulo mortis. Requisites: (a) That death is imminent and the declarant is conscious of that fact; (b) That the declaration refers to the cause and the surrounding circumstances of such death; (c) That the declaration relates to facts which the victim is competent to testify to; (d) That the declaration is offered in a case wherein the declarant’s death is the subject of the inquiry (People v. Serenas, G.R. No. 188124, 29 June 2010).
It is the belief of impending death and not the rapid succession of death that renders the dying declaration admissible (People v. Bautista, G.R. No. 111149, 5 September 1997).
From the records, no questions relative to the second requisite was propounded to Januario. It does not appear that the declarant was under the consciousness of his impending death when he made the statements. The rule is that, in order to make a dying declaration admissible, a fixed belief in inevitable and imminent death must be entered by the declarant. It is the belief in impending death and not the rapid succession of death in point of fact that renders a dying declaration admissible. The test is whether the declarant has abandoned all hopes of survival and looked on death as certainly impending. Thus, the utterances made by Januario could not be considered as a dying declaration (People of the Philippines v. Gatarin, G.R. No. 198022, 7 April 2014).
Victim need not state that he has lost all hope of recovery -- It is sufficient that circumstances are such as to inevitably lead to the conclusion that at the time the declaration was made, the declarant would not expect to survive the injury from which he actually died. The degree and seriousness of the wounds and the fact that death supervened thereafter constitute substantial evidence of the victim's consciousness of his impending death (People v. Tanaman, et al., G.R. No. 71768, 28 July 1987).
Mere gesture of a dying woman inconclusive -- The gesture of a dying woman in pointing to a direction, when asked for the identity of her assailant, is too vague to be given such probative value in determining the culpability of the accused (People v. Ola, G.R. No. L-47147, 3 July 1987). Sec. 38. Declaration against interest
Requisites: (a) The declaration is made by: (i) A person deceased; or (ii) A person who is unable to testify (i.e. in foreign country or with physical/mental impairments) (b) The declaration is against the interest of the declarant: (c) 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. ((Rule 130, Sec. 38; Fuentes v. Court of Appeals, G.R. No. 111692, 9 February 1996).
The theory under which declarations against interest are received in evidence notwithstanding they are hearsay is that the necessity of the occasion renders the reception of such evidence advisable and, further that the reliability of such declaration asserts facts which are against his own pecuniary or moral interest (Parel v. Prudencio, G.R. No. 146556, 19 April 2006).
Admissions v. declaration against interest Admissions It is made by a party to a litigation or by one in privity with or identified in legal interest with such party (Unchuan v. Lozada, G.R. No. 172671, 16 April 2009, 585 SCRA 421, 435).
Declaration Against Interest It is made by a person who is neither a party nor in privity with a party to the suit (Lazaro v. Agustin, G.R. No. 152364, 15 April 2010).
27 It is admissible whether or not the declarant is available as a witness. (Unchuan v. Lozada, supra)
It is admissible only when the declarant is unavailable as a witness. (Lazaro v. Agustin, supra).
It is not necessarily against the interest of the admitter.
The declaration must necessarily be against declarant’s interest.
Sec. 39. Act or declaration about pedigree
Requisites: (a) Witness testifying as to reputation or tradition must be a member, by consanguinity or affinity, of the same family as the subject; (b) Such tradition or reputation must have existed in that family ante litem motam. (Rule 130, Sec. 40; People v. Soriano, G.R. No. 154278, 27 December 2002). Sec. 40. Family reputation or tradition regarding pedigree
Requisites: (a) Witness testifying as to reputation or tradition must be a member, by consanguinity or affinity, of the same family as the subject; (b) Such tradition or reputation must have existed in that family ante litem motam. (Rule 130, Sec. 40; People v. Soriano, G.R. No. 154278, 27 December 2002).
Sec. 41. Common reputation Common reputation refers to general reputation; definite opinion of the community in which the fact to be proved is known or exists. Requisites: (a) The subject of subject of inquiry must be facts of public or general interest more than 30 years old, respecting marriage or moral character; (b) The evidence must refer to facts ante litem motam; (c) The facts may be established by: Testimonial evidence of competent witness; Monuments and inscription in public places; or Documents containing statements of reputation.
Sec. 42. Part of the res gestae Res gestae is a Latin phrase which literally means "things done.“ (Capila v. People, G.R. No. 146161, 17 July 2006). Two types: (a) Spontaneous statements; and The rule in res gestae applies when the declarant himself did not testify and the testimony of the witness who heard the declarant complies with the following requisites: (i) the principal act, the res gestae, is a startling occurrence; (ii) the statements were made before the declarant had time to contrive or devise; and (iii) the statements concerned the occurrence in question and its immediately attending circumstances (prior or subsequent) (Rule 130, Sec. 42; Maturillas v. People, G.R. No. 163217, 18 April 2006).
A sudden attack on a group peacefully eating lunch on a school campus is a startling occurrence. Considering that the statements of the bystanders were made immediately after the startling occurrence, they are, in fact, admissible as evidence given in res gestae (People v. Feliciano, G.R. No. 196735, 5 May 2014)
(b) Contemporaneous statements or verbal acts. (Rule 130, Sec. 42) Requisites: (a) The principal act to be characterized must be equivocal; (b) The equivocal act must be relevant to the issue; (c) The verbal act must be contemporaneous with the equivocal act; (d) The verbal act must give legal significance to the equivocal act (Talidano v. Falcom Maritime & Allied Service, Inc. G.R. No. 172031, 14 July 2008).
The res gestae exception to the hearsay rule provides that the declarations must have been "voluntarily and spontaneously made so nearly contemporaneous as to be in the presence of the transaction which they illustrate and explain, and were made under such circumstances as necessarily to exclude the idea of design or deliberation”(People v. Estibal, G.R. No. 208749, 26 November 2014).
Sec. 43. Entries in the course of business
28
Requisites: (a) The person who made the entry must be dead or unable to testify; (b) The entries were made at or near the time of the transaction to which they refer; (c) The entrant was in a position to know the facts stated in the entries; (d) The entries were made in his professional capacity or in the performance of a duty, whether legal, contractual, moral or religious; (e) The entries were made in the ordinary or regular course of business or duty (Rule 130, Sec. 43; Jose, Jr. v Michaelmar Phils., Inc., et al., G.R. No. 169606, 27 November 2009).
Entries in the course of business are accorded unusual reliability because their regularity and continuity are calculated to discipline record keepers in the habit of precision. If the entries are financial, the records are routinely balanced and audited. In actual experience, the whole of the business world function in reliance of such kind of records (LBP v. Monet’s Export and Manufacturing Corp., G.R. No. 184971, 19 April 2010). Sec. 44. Entries in official records
Requisites: (a) Entries were made by: (i) a public officer in the performance of his duties; or (ii) by a person in the performance of a duty specially enjoined by law; (b) The entrant had personal knowledge of the facts stated by him or such facts were acquired by him from reports made by persons under a legal duty to submit the same; and (c) Such entries were duly entered in a regular manner in the official records (Alvarez v. PICOP Resources, G.R. No. 162243, 3 December 2009).
Entrant need not be presented -- The presentation of the records themselves would, therefore, have been admissible as an exception to the hearsay rule even if the public officer/s who prepared them was/were not presented in court, provided the above requisites could be adequately proven (Alvarez v. PICOP Resources, supra; Africa v. Caltex, 123 Phil. 272).
Police records of vehicular accidents -- The presentation of the police report itself is admissible as an exception to the hearsay rule even if the police investigator who prepared it was not presented in court, as long as the requisites under Rule 130, Sec. 44 could be adequately proved (Malayan Insurance Co., Inc. v. Alberto, G.R. No. 194320, 1 February 2012). Sec. 45. Commercial lists and the like
A document is a commercial list if: (a) it is a statement of matters of interest to persons engaged in an occupation; (b) such statement is contained in a list, register, periodical or other published compilation; (c) said compilation is published for the use of persons engaged in that occupation, and (d) it is generally used and relied upon by persons in the same occupation (Rule 130, Sec. 45; PNOC Shipping v. Court of Appeals, G.R. No. 107518, 8 October 1998). Sec. 46. Learned treatises
Requisites: (a) The court takes judicial judicial notice of published treatise, periodical or pamphlet on a subject of history, law, science or art; or (b) 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 an expert in the subject (Rule 130, Sec. 46).
Sec. 47. Testimony or deposition at a former proceeding Requisites: (a) Witness is dead or unable to testify; (b) His testimony or deposition was given in a former case or proceeding, judicial or administrative, between the same parties or those representing the same interests; (c) The former case involved the same subject as that in the present case, although on different causes of action; (d) The issue testified to by the witness in the former trial is the same issue involved in the present case; and (e) The adverse party had an opportunity to cross-examine the witness in the former case.
Meaning of “unable to testify” -- The phrase "unable to testify" refers to a physical inability to appear at the witness stand and to give a testimony. Hence notwithstanding the deletion of the phrase "out of the Philippines," which previously appeared in Section 47, Rule 130 of the Rules of Court, absence from jurisdiction may still constitute inability to testify under the same rule (Republic v. Sandiganbayan, G.R. No. 152375, 16 December 2011).
Meaning of “same parties” -- To render the testimony of a witness admissible at a later trial or action, the parties to the first proceeding must be the same as the parties to the later proceeding. Physical identity, however, is not required; substantial identity or identity of interests suffices, as where the subsequent proceeding is between persons who represent the parties to
29 the prior proceeding by privity in law, in blood, or in estate. The term "privity" denotes mutual or successive relationships to the same rights of property (Republic v. Sandiganbayan, supra).
7.
Opinion rule
Sec. 48. General rule
The opinion of a witness is NOT admissible (Rule 130, Sec. 48). Exceptions: (a) Opinion of expert witness; (b) Opinion of ordinary witness.
Sec. 49. Opinion of expert witness
The opinion of a witness on a matter requiring special knowledge, skill, experience or training which he is shown to possess, may be received in evidence. (Rule 130, Sec. 48).
Courts are not bound by expert’s testimony Section 49, Rule 130 of the Revised Rules of Court states that the opinion of a witness on a matter requiring special knowledge, skill, experience or training, which he is shown to possess, may be received in evidence. The use of the word "may" signifies that the use of opinion of an expert witness is permissive and not mandatory on the part of the courts. Allowing the testimony does not mean, too, that courts are bound by the testimony of the expert witness. The testimony of an expert witness must be construed to have been presented not to sway the court in favor of any of the parties, but to assist the court in the determination of the issue before it, and is for the court to adopt or not to adopt depending on its appreciation of the attendant facts and the applicable law (Tabao v. People, G.R. No. 187246, 20 July 2011).
Sec. 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; (c) the mental sanity of a person with whom he is sufficiently acquainted; and (d) his impressions of the emotion, behavior, condition or appearance of a person (Rule 130, Sec. 48).
Criteria in Qualifying as an Expert Witness- In our jurisdiction, the criterion remains to be the expert witness' special knowledge experience and practical training that qualify him/her to explain highly technical medical matters to the Court (Casumpang, et al. v. Cortejo, G.R. No. 171127, 11 March 2015).
Probative value of a handwriting expert witness’ testimony- The opinion of handwriting experts are not necessarily binding upon the court, the expert’s function being to place before the court data upon which the court can form its own opinion. This principle holds true especially when the question involved is mere handwriting similarity or dissimilarity, which can be determined by a visual comparison of specimens of the questioned signatures with those of the currently existing ones. A finding of forgery does not depend entirely on the testimonies of handwriting experts, because the judge must conduct an independent examination of the questioned signature in order to arrive at a reasonable conclusion as to its authenticity (Garbo v. Spouses Garabato, G.R. No. 200013, 14 January 2015).
Expert witness not necessary if the res ipsa loquitur doctrine is applicable- Where the application of the principle of res ipsa loquitur is warranted, an expert testimony may be dispensed with in medical negligence cases. Resort to the doctrine of res ipsa loquitur as an exception to the requirement of an expert testimony in medical negligence cases may be availed of if the following essential requisites are satisfied: (1) the accident was of a kind that does not ordinarily occur unless someone is negligent; (2) the instrumentality or agency that caused the injury was under the exclusive control of the person charged; and (3) the injury suffered must not have been due to any voluntary action or contribution of the person injured (Rosit v. Davao Doctors Hospital, et al., G.R. No. 210445, 7 December 2015).
Hot Tub Hearing. “A method used for giving concurrent expert evidence in civil cases. In a “hot tub” hearing, the judge can hear the experts discussing the same issue at the same time to explain each of their points in a discussion with a professional colleague. The objective is to achieve greater efficiency and expedition, by reduced emphasis on cross examination and increased emhphasis on professional dialogue, and swift identification of the critical areas of disagreement between the experts.” (International Service for the Acquisition of Agri-BioTech Applications, Inc., v. Greenpeace Southeast Asia- Philippines, et al., G.R. No. 209271, 8 December 2015) 8.
Character evidence
Sec. 51. Character evidence not generally admissible; exceptions
General rule: Character evidence is not admissible (Rule 130, Sec. 51). Exceptions:
30 (a) Criminal cases Accused – may prove his good moral character pertinent to the moral trait in the offense charged. Prosecution – may present character evidence pertaining to accused’s bad moral character pertinent to the moral trait involved in the offense charged only in rebuttal. Offended party – 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. (b) Civil cases Evidence of the moral character of a party in a civil case is admissible only when pertinent to the issue of character involved in the case. Evidence of the good character of a witness is not admissible until such character has been impeached (Rule 130, Sec. 51).
Rape shield rule -- In prosecutions for rape, evidence of complainant's past sexual conduct, opinion thereof or of his/her reputation shall not be admitted unless, and only to the extent that the court finds, that such evidence is material and relevant to the case (R.A. No. 8505, Sec. 6).
Other Exclusionary Rules 1. The Bill of Rights “The Constitution guarantees the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures. Any evidence obtained in violation of said right shall be inadmissible for any purpose in any proceeding. Indeed, while the power to search and seize may at times be necessary to the public welfare, still it must be exercised and the law implemented without contravening the constitutional rights of the citizens, for the enforcement of no statute is of sufficient importance to justify indifference to the basic principles of government.“(Valdez v. People, G.R. No. 170180, 23 November 2007) 2. Bank Secrecy Law Section 2 of RA 1405 or the Bank Secrecy law institutionalized the policy of encouraging deposits to banks by characterizing as absolutely confidential in general all deposits of whatever nature with banks and other financial institutions in the country. ( It declares: Section 2. All deposits of whatever nature with banks or banking institutions in the Philippines including investments in bonds issued by the Government of the Philippines, its political subdivisions and its instrumentalities, are hereby considered as of an absolutely confidential nature and may not be examined, inquired or looked into by any person, government official, bureau or office, except upon written permission of the depositor, or in cases of impeachment, or upon order of a competent court in cases of bribery or dereliction of duty of public officials, or in cases where the money deposited or invested is the subject matter of the litigation. (BSB Group, Inc. v. Go, GR No. 168644, 16 February 2010) 3. Anti-Wiretapping Act R.A. No. 4200 or the Anti- Wiretapping Act states: Section 1. It shall be unlawful for any person, not being authorized by all the parties to any private communication or spoken word, to tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a dictaphone or dictagraph or dictaphone or walkie-talkie or tape recorder, or however otherwise described: It shall also be unlawful for any person, be he a participant or not in the act or acts penalized in the next preceding sentence, to knowingly possess any tape record, wire record, disc record, or any other such record, or copies thereof, of any communication or spoken word secured either before or after the effective date of this Act in the manner prohibited by this law; or to replay the same for any other person or persons; or to communicate the contents thereof, either verbally or in writing, or to furnish transcriptions thereof, whether complete or partial, to any other person: Provided, That the use of such record or any copies thereof as evidence in any civil, criminal investigation or trial of offenses mentioned in section 3 hereof, shall not be covered by this prohibition. Section 4. Any communication or spoken word, or the existence, contents, substance, purport, effect, or meaning of the same or any part thereof, or any information therein contained obtained or secured by any person in violation of the preceding sections of this Act shall not be admissible in evidence in any judicial, quasi-judicial, legislative or administrative hearing or investigation.
4. The National Internal Revenue Code
31 Section 201 of RA 8424 or the National Internal Revenue Code states: Effect of Failure to Stamp Taxable Document. - An instrument, document or paper which is required by law to be stamped and which has been signed, issued, accepted or transferred without being duly stamped, shall not be recorded, nor shall it or any copy thereof or any record of transfer of the same be admitted or used in evidence in any court until the requisite stamp or stamps are affixed thereto and cancelled.
C.
Burden of Proof and What Need Not be Proved
Rule 131. Burden of Proof and Presumptions
Presumption is an inference of an existence or non-existence of a fact which courts are permitted to draw from the proof of other facts.
Presumption compared with judicial notice and admissions: Presumption - proponent still has to introduce evidence of the basis of the presumption. Judicial notice and judicial admission - as a rule, proponent does not have to introduce evidence.
Classification of presumptions
1. 2.
Presumption of Law
Presumption of Fact
Praesumptiones Juris
Praesumptiones hominis
A deduction which the law expressly directs to be made from particular facts.
A deduction which reason draws from facts proved without an express direction from the law to that effect.
Based on rules, laws, and jurisprudence.
Discretionary.
Types: 1. Conclusive (juris et de jure) 2. Disputable (juris tantum or prima facie)
Sec. 1. Burden of proof
Sec. 2. Conclusive presumptions Conclusive presumptions are not permitted to be overcome by any proof to the contrary. 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 (Rule 131, Sec. 2 [a]). 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. (Rule 131, Sec. 2 [b]). Sec. 3. Disputable presumptions
Disputable presumptions are those which the law permits to be overcome or contradicted.
Willful suppression of evidence under par. (e) Requisites: (a) The evidence is material. (b) Party had the opportunity to produce the same. (c) Said evidence is available only to said party.
Presumption does not apply: (a) If the evidence is at the disposal of both parties. (People v. Ducay, 225 SCRA 1). (b) The suppression was not wilful. (c) The suppressed evidence is merely corroborative or cumulative. (d) The suppression is an exercise of a privilege (People v. Navaja, 220 SCRA 624).
Presumption of authorship of a recent lawful act (par.1) The rationale for this presumption is similar to the rationale for the presumption of authorship of falsification, which states that in the absence of satisfactory explanation, one found in possession of and who used a forged document is the forger of said document. If a person had in his possession a falsified document and he made use of it, taking advantage of it and profiting thereby, the clear presumption is that he is the material author of the falsification. (Lastrilla v. Granada, G.R. No. 160257, 31 January 2006).
32 Sec. 4. No presumption of legitimacy or illegitimacy Rule 129. What Need Not Be Proved Sec. 1. Judicial notice, when mandatory
The following need not be proved: (a) Facts which a court shall or may take judicial notice of (Rule 129, Secs. 1 and 2); (b) Judicial admissions (Rule 129, Sec. 4); (c) Conclusive presumptions; (d) Disputable presumptions not disputed; (e) Res Ipsa Loquitur (Latin for "the thing or the transaction speaks for itself.“)
Court is compelled to take judicial notice; takes place at the court's own initiative. The court shall take mandatory judicial notice of the following (Rule 129, Sec. 1): Existence and territorial extent of states; Their political history; Forms of government; Symbols of nationality; Law of nations; Admiralty and maritime courts of the world and their seals; Political constitution and history of the Philippines. Official acts of the legislative, executive, and judicial departments of the Philippines; Laws of nature; Measure of time; Geographical divisions.
Example of Mandatory Judicial Notice:
“Section 1, Rule 129 of the Rules of Court mandates that a court shall take judicial notice, without the introduction of evidence, of the official acts of the legislative, executive, and judicial departments of the Philippines. Thus, as both Congress and this Court have repeatedly and consistently validated and recognized UP's indefeasible title over its landholdings, the RTC and the Court of Appeals clearly erred when it faulted the Republic and UP for presenting certified true copies of its titles signed by its records custodian instead of either the duplicate originals or the certified true copies issued by the Register- of Deeds of Quezon City. Indeed, the RTC and the CA should have taken judicial notice of UP's title over its landholdings, without need of any other evidence.” (Republic v. Rosario, GR No. 186635, 27 January, 2016) Sec. 2. Judicial notice, when discretionary
Court may take judicial notice of matters which are of public knowledge, or are capable of unquestionable demonstration, or ought to be known to judges because of their judicial functions. at the court's initiative, or on request of a party; requires a hearing and presentation of evidence.
Judicial notice is discretionary in the following: Matters of public knowledge; Matters capable of unquestionable demonstration; Matters which ought to be known to judges because of their judicial functions.
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. Examples of matters of public knowledge: Giving of tips, especially in a first rate hotel, is an accepted practice which the Court can take judicial notice of (PAL v. CA, 257 SCRA 33, 1997). The current practice among major establishments to accept payment by means of credit cards in lieu of cash (Mandarin Villa v. CA, 257 SCRA 538). Scientific findings that drug abuse can damage the mental faculties of the use. (Bughaw, Jr. v. Treasure Isle Industrial Corporation, G.R. No. 169606, November 27, 2009). Sec. 4. Judicial admissions
Judicial admission is an admission, verbal or written, made by a party in the course of the proceedings in the same case, does not require proof. (Rule 129, Sec. 4).
33
The admission may be contradicted only by showing that it was made through palpable mistake or that no such admission was made. (Rule 129, Sec. 4).
Judicial admissions may be made in: Pleadings filed by the parties; or During the course of the trial, either by verbal or written manifestations or stipulations.
A judicial admission must be made in the same case in which it is offered. If made in another case or in another court, it must be proven as in any other fact, but entitled greater weight. This is admissible unless: Made only for purposes of the first case; Withdrawn with the permission of the court; and Court deems it proper to relieve the party.
Implied admissions of allegations of usury and in actionable documents if not specifically denied under oath (Rule 8, Secs. 8 and 11).
Admissions during pre-trial in civil and criminal cases. (N.B.: In criminal cases the admission must be reduced in writing and signed by accused and counsel [Rule 118, Sec. 4]).
Admissions in superseded pleadings may be received in evidence against the pleader. (Rule 10, Sec. 8). These are treated as extrajudicial admissions which must be proven as fact.
Implied admissions in the modes of discovery (Depositions; Interrogatories – Rule 23; Failure to specifically deny under oath within 15 days a Request for Admission in a pending case – Rule 26).
Plea of guilt in criminal case (N.B.: A withdrawn plea of guilt is inadmissible, unlike in civil cases where a withdrawn judicial admission is considered an extrajudicial admission).
Admissions by counsel are generally conclusive upon a client absent any gross negligence which deprives counsel of due process of law or there is outright deprivation of property or liberty (Cuenco v. Talisay Tourist Sports Complex, G.R. No. 174154, 17 October 2008).
Effect of judicial admissions A matter admitted need no longer be proved; The matter admitted cannot be contradicted because they are conclusive upon the party making it.
How judicial admissions may be contradicted: Upon a showing that the admission was made through palpable mistake; and When it is shown that no such admission was made.
Foreign laws -- Foreign laws may be taken judicial notice in the following instances: When the foreign law refers to the law of nations. (Rule 129, Sec. 1). When the court takes judicial notice of a published treatise, periodical or pamphlet on a subject of law as a learned treatise. (Rule 130, Sec. 46). When the foreign statute is accepted by the Philippine government (Republic v. Guanzon, 61 SCRA 360). When a foreign judgment containing foreign law is recognized for enforcement. (Rule 39, Sec. 48). If the foreign law refers to common law doctrines and rules from which many of our laws were derived. (Alzua v. Johnson, 21 Phil. 308).
Doctrine of processual presumption - Under this doctrine, the foreign law is considered the same as the law of the forum. It arises if the foreign law, though properly applicable is either not alleged or if alleged is not duly proved before a competent court.
To prove foreign law, the party invoking it must present a copy thereof and comply with Rules 132, Sections 24 and 25 of the Rules of Court.
Law of Nations Under the 1987 Constitution, the Philippines adopts the generally accepted principles of international law as part of the law of the land (1987 Constitution, Article II, Section 2). Being part of the law of the land, they are therefore technically in the nature of local laws and thus subject to mandatory judicial notice.
Municipal ordinances Generally, courts are required to take judicial notice of laws. However, courts are not mandated to take judicial notice of municipal ordinances unless the charter of the concerned city provides for such judicial notice. (City of Manila v. Garcia, 1967). But inferior courts sitting in the respective municipalities or cities are mandated to take judicial notice thereof. The reason is that violations of the ordinances are usually vested to the inferior courts exclusively in the exercise of their original jurisdiction.
If an inferior court took judicial notice of a fact and there was an appeal, such court taking the appeal should likewise take judicial notice. (U.S. v. Blanco, 37 Phil. 126).
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Court Orders Courts are required to take judicial notice of the decisions of appellate courts but not of the decisions of coordinate courts. In fact, a court may not take judicial notice of the decision or the facts involved in another case tried by the same court itself unless the parties introduce the same in evidence or doing so is convenient. D. Presentation of Evidence Rule 132. Presentation of Evidence A.
Examination of Witnesses
Sec. 1. Examination to be done in open court Sec. 2. Proceedings to be recorded Sec. 3. Rights and obligations of a witness
Rights of a witness (a) To be protected from irrelevant, improper, or insulting questions, and from harsh or insulting demeanor; (b) Not to be detained longer than the interests of justice require; (c) Not to be examined except only as to matters pertinent to the issue; (d) Not to give an answer which will tend to subject him to a penalty for an offense unless otherwise provided by law; or (e) Not to give an answer which will tend to degrade his reputation, unless it be to the very fact at issue or to a fact from which the fact in issue would be presumed. But a witness must answer to the fact of his previous final conviction for an offense. (Rule 132, Sec. 3).
Obligations of a witness: (a) A witness must answer questions, although his answer may tend to establish a claim against him (Rule 132, Sec. 3, par. 1). (b) A witness must answer to the fact of his previous final conviction for an offense (Rule 132, Sec. 3, par. 5). (c) A witness must testify under oath or affirmation (Rule 132, Sec. 1). Sec. 4. Order in the examination of an individual witness Sec. 5. Direct examination
Direct examination is the examination-in-chief of a witness by the party. Scope: facts relevant to the issue.
Under the Judicial Affidavit Rule (A.M. No. 12-8-8-SC), the judicial affidavits of the parties’ witnesses shall take the place of such witnesses’ direct testimonies. As such, the parties’ documentary or object evidence, if any shall be attached to the judicial affidavits. Sec. 6. Cross-examination; its purpose and extent
Scope (a) Any matter stated in the direct examination; (b) or connected therewith (Rule 132, Sec. 5); (c) If unwilling/hostile/adverse party witness – cross is limited to matters stated during direct examination. (Rule 132, Sec. 12) Purpose (a) To test witness’ accuracy and truthfulness and freedom from interest or bias, or the reverse; and (b) To elicit all important facts bearing upon the issue. (Rule 132, Sec. 5). Nature (a) Fundamental right -- The right of a party to confront and cross-examine opposing witnesses in a judicial litigation, be it criminal or civil in nature, or in proceedings before administrative tribunals with quasi-judicial powers, is a fundamental right which is part of due process. (Savory Luncheonette v. Lakas ng Manggagawang Pilipino, et al., 1975, 62 SCRA 258) (b) Personal right -- The right to cross-examination is a personal right which may be expressly or impliedly waived. (Savory Luncheonette v. Lakas ng Manggagawang Pilipino, et al., 1975, supra).
Lack of cross-examination; effect When cross examination is not and cannot be done or completed due to causes attributable to the party who offered the witness, the uncompleted testimony is thereby rendered incomplete and should be stricken from the record. (Bachrach Motor Co., Inc., v. Court of Industrial Relations, 86 SCRA 27).
It is not proper to exclude a witness because he heard the cross-examination of a prior witness. Excluding future witnesses from the courtroom at the time another witness is testifying, or ordering that these witnesses be kept separate from one another, is primarily to prevent them from conversing with one another. The purpose is to ensure that the witnesses testify to the truth by preventing them from being influenced by the testimonies of the others. In other words, this measure is meant to prevent
35 connivance or collusion among witnesses. The efficacy of excluding or separating witnesses has long been recognized as a means of discouraging fabrication, inaccuracy, and collusion. However, without any motion from the opposing party or order from the court, there is nothing in the rules that prohibits a witness from hearing the testimonies of other witnesses (Design Sources International, Inc. v. Eristingcol, G.R. No. 193966, 19 February 2014).
Sec. 7. Re-direct examination; its purpose and extent Scope (a) Any matter covered during cross-examination; (b) Matters not covered during cross, upon the court’s discretion. (Rule 132, Sec. 6). Purpose (a) to explain; or (b) to supplement his answers given during the cross-
examination. (Rule 132, Sec. 6).
Sec. 8. Re-cross examination
Scope (a) Any matter covered during re-direct examination; (b) Other matters, upon the court’s discretion. (Rule 132, Sec. 7).
Purpose (a) To test witness’ accuracy and truthfulness and freedom from interest or bias, or the reverse; and (b) to elicit all important facts bearing upon the issue.
Sec. 9.
Recalling witness
After the examination of a witness by both sides has been concluded, the witness cannot be recalled without leave of the court. The court will grant or withhold leave in its discretion, as the interests of justice may require. (Rule 132, Sec. 9) A showing of some concrete, substantial grounds for recall, i.e. such as particularly identified material points were not covered, or particular vital documents were not presented to the witness or the cross-examination was conducted in so inept manner as to result in a virtual absence thereof (People v. Rivera, 200 SCRA 786).
Judge’s participation during examination of a witness A judge who presides at a trial is not a mere referee. He must actively participate therein by directing counsel to the facts in dispute, by asking clarifying questions, and by showing an interest in a fast and fair trial (Clarin v. Yatco, 56 O.G. 7042, Nov. 14, 1960). He can interrogate witnesses to elicit the truth, to obtain clarification, or to test their credibility (People v Moreno, 83 Phil. 286). However, this power must be exercised by the court sparingly and judiciously (People v. Ferrer, 44 O.G. 112). The judge cannot curtail counsel's right to interrogate witnesses. (People v. Bedia, 83 Phil. 909)
Recantation of a witness Courts look with disfavor upon retractions, because they can easily be obtained from witnesses through intimidation or for monetary considerations. Hence, a retraction does not necessarily negate an earlier declaration. They are generally unreliable and looked upon with considerable disfavor by the courts (People v. Bulagao, G.R. No. 184757, 5 October 2011). The rule is settled that in cases where previous testimony is retracted and a subsequent different, if not contrary, testimony is made by the same witness, the test to decide which testimony to believe is one of comparison coupled with the application of the general rules of evidence (People v. Bulagao, G.R. No. 184757, 5 October 2011)
Sec. 10. Leading and misleading questions
A leading question is a question which suggests to the witness the answer which the examining party desires (Rule 132, Sec. 10).
General rule: A leading question is not allowed.
Exceptions: (a) On cross-examination; (b) On preliminary matters; (c) When there is difficulty in getting direct and intelligible answers from a witness who is ignorant, or a child of tender years, or is of feeble mind, or a deaf-mute; (d) Of an unwilling or hostile witness; or (e) Of a witness who is an adverse party or an officer, director, or managing agent of a public or private corporation or of a partnership or association which is an adverse party. (Rule 132, Sec. 10).
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A misleading question is one which assumes as true a fact not yet testified to by the witness, or contrary to that which he has previously stated. General rule: A misleading question is not allowed. Exceptions: none. Sec. 11. Impeachment of adverse party’s witness
Methods of impeachment of adverse party’s witness: (a) Contradictory evidence; Contradictory evidence refers to other testimony of the same witness, or other evidence presented by him in the same case, but not the testimony of another witness (b) Evidence of prior inconsistent statements; Prior inconsistent Statements refer to statements, oral or documentary, made by the witness sought to be impeached on occasions other than the trial in which he is testifying (c) Evidence of bad character; (d) Evidence of bias, interest, prejudice or incompetence. Sec. 12. Party may not impeach his own witness
A party can impeach his own witness only by: (a) Evidence contradictory to his testimony; or (b) Evidence of prior inconsistent statements.
Exception: However, in the case of hostile witnesses, adverse party witnesses or involuntary witnesses, they can also be impeached by other modes of impeachment, aside from contradictory statements and prior inconsistent statements made by them. (Rule 132, Sec. 12).
Sec. 13. How witness impeached by evidence of inconsistent statements
Before a witness can be impeached by evidence that he has made at other times statements inconsistent with his present testimony: (a) the statements must be related to him, with the circumstances of the times and places and the persons present; (b) he must be asked whether he made such statements, and if so, allowed to explain them; and (c) if the statements be in writing, they must be shown to the witness before any question is put to him concerning them (Rule 132, Sec. 13).
Non-compliance with the foundational elements for this mode will be a ground for an objection based on “improper impeachment.” Over a timely objection, extrinsic evidence of a prior inconsistent statement without the required foundation is not admissible (Riano, p. 327). Sec. 14. Evidence of good character of witness
Evidence of the good character of a witness is not admissible until such character has been impeached (Rule 132, Sec. 14). This arises from the presumption that the witness is truthful and of good character, hence the necessity of initially showing such traits is unnecessary (Riano, p. 331). Sec. 15. Sec. 16. Sec. 17. Sec. 18.
Exclusion and separation of witnesses When witness may refer to memorandum When part of transaction, writing or record given in evidence, the remainder admissible Right to inspect writing shown to witness
Judicial Affidavit Rule Under the Judicial Affidavit Rule, judicial affidavits of witnesses shall take the place of their direct testimonies (Sec. 2). The adverse party shall have the right to cross-examine the witness on his judicial affidavit and on the exhibits attached to the same.
B. Authentication and Proof of Documents Authentication is the act or mode of giving authenticity to a statute, authority or other written instrument, or a copy thereof, so as to render it legally admissible in evidence (Herrera, Remedial Law Vol. VI, 1999 ed., p. 262). Sec. 19. Classes of documents
Public and private documents
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Public documents are: (c) The written official acts, or records of the official acts of the sovereign authority, official bodies and tribunals, and public officers, whether of the Philippines, or of a foreign country; (d) Documents acknowledged before a notary public except last wills and testaments; and (e) Public records, kept in the Philippines, of private documents required by law to the entered therein (Rule 132, Sec. 19, par. 2).
All other writings are private (Rule 132, Sec. 19, par. 3). o
Baptismal Certificate - While a baptismal certificate may be considered a public document, it can only serve as evidence of the administration of the sacrament on the date specified but not the veracity of the entries with respect to the child's paternity;" and that baptismal certificates were "per se inadmissible in evidence as proof of filiation," and thus "cannot be admitted indirectly as circumstantial evidence to prove [filiation]." (Alado v. Alcoran, G.R. No. 163362, 8 July 2015).
As a general rule, public documents need not be authenticated; private documents have to be authenticated to be admissible in evidence. (J. Benipayo, Evidence: Basic Principles and Selected Problems) “Notarization converts a private document into a public document thus making that document admissible in evidence without further proof of its authenticity. A notarial document is by law entitled to full faith and credit upon its face. Courts, administrative agencies and the pubic at large must be able to rely upon the acknowledgment executed by a notary public and appended to a private document.” (Fabay v. Resuena, AC No. 9723, 26, January 2016) Sec. 20. Proof of private document
Before any private document offered as authentic is received in evidence, its due execution and authenticity must be proved either: (a) By anyone who saw the document executed or written; or (b) By evidence of the genuineness of the signature or handwriting of the maker (Rule 132, Sec. 20, par. 1).
Any other private document need only be identified as that which it is claimed to be. (Rule 132, Sec. 20, par. 2). Sec. 21. When evidence of authenticity of private document not necessary
Evidence of authenticity is not required when: (a) Private document is more than thirty years old; (b) Produced from the custody in which it would naturally be found if genuine; and (c) Is unblemished by any alterations or circumstances of suspicion, no other evidence of its authenticity need be given (Rule 132, Sec. 21). Sec. 22. How genuineness of handwriting proved
The handwriting of a person may be proved by: (a) Testimony of: Witness who actually who actually saw the person writing the instrument (Rule 132, Sec. 20a). Witness familiar with such handwriting (Rule 132, Sec. 22) and who can give his opinion thereon, such opinion being exception to opinion rule (Rule 130, Sec 50b). Expert witness (Rule 130, Sec. 49). (b) Comparison by the court of the questioned handwriting and admitted genuine specimens thereof (Rule 132, Sec. 22).
No preference rule - The law makes no preference, much less distinction among and between the different means stated in the Rules of Court in proving the handwriting of a person. (Domingo v. Domingo, G.R. No. 150897, 11 April 2005)
Probative value of opinions of handwriting experts - Courts are not bound to give probative value or evidentiary value to the opinions of handwriting experts, as resort to handwriting experts is not mandatory. (Bautista v. Castro, G.R. No. 61260, 17 February 1992, 206 SCRA 305, 312) Sec. 23. Public documents as evidence
Public documents as evidence (a) Entries in public records made in the performance of a duty by a public officer are prima facie evidence of the facts therein stated. (Rule 132, Sec. 23). (b) All other public documents are evidence, even against a third person, of: (i) the fact which gave rise to their execution; and (ii) date of the document. (Rule 132, Sec. 23). Sec. 24. Proof of official record
The record of public documents (referred to in paragraph Rule 132, Sec. 19 [a]) may be evidenced by:
38 (a) An official publication thereof; or (b) By a copy attested by the officer having the legal custody of the record, or by his deputy. Sec. 25. What attestation of copy must state
Attestation requirements – primary: (a) Statement of correctness - The attestation must state, in substance, that the copy is a correct copy of the original, or a specific part thereof, as the case may be. (Rule 132, Sec. 25) (b) Official Seal - The attestation must be under the official seal of the attesting officer, if there be any, or if he be the clerk of a court having a seal, under the seal of such court. (Rule 132, Sec. 25)
Requisites for foreign public documents (a) Certificate of custody - If the record is not kept in the Philippines the copy must be accompanied by a certificate that such officer has the custody. The certificate may be made by a secretary of the embassy or legation, consul general, consul, vice consul, or consular agent or by any officer in the foreign service of the Philippines stationed in the foreign country in which the record is kept (Rule 132, Sec. 24). (b) Authentication – the certificate must be authenticated by the seal of the office of the issuer (Rule 132, Sec. 24).
Absent the attestation of the officer having the legal custody of the records and the certificate to that effect by a Philippine foreign service officer, a mere copy of the foreign document is NOT admissible as evidence to prove foreign law (Wildvalley Shipping Co. Ltd. v. CA, G.R. No. 119602, 6 October 2000).
Under Section 24 of Rule 132, the record of public documents of a sovereign authority or tribunal may be proved by: (1) an official publication thereof or (2) a copy attested by the officer having the legal custody thereof. Such official publication or copy must be accompanied, if the record is not kept in the Philippines, with a certificate that the attesting officer has the legal custody thereof. The certificate may be issued by any of the authorized Philippine embassy or consular officials stationed in the foreign country in which the record is kept, and authenticated by the seal of his office. The attestation must state, in substance, that the copy is a correct copy of the original, or a specific part thereof, as the case may be, and must be under the official seal of the attesting officer. Section 25 of the same Rule states that whenever a copy of a document or record is attested for the purpose of evidence, the attestation must state, in substance, that the copy is a correct copy of the original, or a specific part thereof, as the case may be. The attestation must be under the official seal of the attesting officer, if there be any, or if he be the clerk of a court having a seal, under the seal of such court (Noveras v. Noveras, G.R. No. 188289, 20 August 2014).
Sec. 26. Irremovability of public record Sec. 27. Public record of a private document
The fact that the documents were certified as true copies of the original by the PCGG does not enhance its admissibility. These documents have remained private even if it is in the custody of the PCGG. What became public are not the private documents (themselves) but the recording of it in the PCGG. For, "while public records kept in the Philippines, of private writings are also public documents...the public writing is not the writing itself but the public record thereof. Stated otherwise, if a private writing itself is inserted officially into a public record, its record, its recordation, or its incorporation into the public record becomes a public document, but that does not make the private writing itself a public document so as to make it admissible without authentication (Republic v. Sandiganbayan, Tantoco Jr., G.R. No. 18881, 21 April 2014)."
Proof of public records of private documents: (a) The original record; (Rule 132, Sec. 27) (b) Copy of the original record, attested by the legal custodian of the record, with an appropriate certificate that such officer has the custody. (Rule 132, Sec. 27) Sec. 28. Proof of lack of record
A written statement signed by an officer having the custody of an official record or by his deputy that after diligent search no record or entry of a specified tenor is found to exist in the records of his office, accompanied by a certificate as above provided, is admissible as evidence that the records of his office contain no such record or entry (Rule 132, Sec. 28).
Sec. 29. How judicial record impeached
Any judicial record may be impeached by evidence of: (a) want of jurisdiction in the court or judicial officer; (b) collusion between the parties; or (c) fraud in the party offering the record, in respect to the proceedings (Rule 132, Sec. 29.). Sec. 30. Proof of notarial documents
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Notarial documents may be presented in evidence without further proof, the certificate of acknowledgment being prima facie evidence of the execution of the instrument or document involved (Rule 132, Sec. 30). Sec. 31. Alterations in document, how to explain
A party may show that an alteration was: (a) made by another, without his concurrence; (b) was made with the consent of the parties affected by it or was otherwise properly or innocent made; or (c) that the alteration did not change the meaning or language of the instrument (Rule 132, Sec. 31). Sec. 32. Seal Sec. 33. Documentary evidence in an unofficial language C.
Offer and Objection
Sec. 34. Offer of evidence
The court shall consider no evidence which has not been formally offered. The purpose for which the evidence is offered must be specified (Rule 132, Sec. 34).
The court considers the evidence only when it is formally offered. The offer of evidence is necessary because it is the duty of the trial court to base its findings of fact and its judgment only and strictly on the evidence offered by the parties. A piece of document will remain a scrap of paper without probative value unless and until admitted by the court in evidence for the purpose or purposes for which it is offered. The formal offer of evidence allows the parties the chance to object to the presentation of an evidence which may not be admissible for the purpose it is being offered (Laborte and Philippine Tourism Authority v. Pagsanjan Tourism Consumers Cooperative, G.R. No. 183860, 15 January 2014). Requisites for evidence to be considered despite failure to formally offer it: (1) duly identified by the testimony duly recorded, ad (2) must have been incorporated in the records of the case (Laborte and Philippine Tourism Authority v. Pagsanjan Tourism Consumers Cooperative, G.R. No. 183860, 15 January 2014; Heirs of Serapio Mabborang v. Mabborang, G.R. No. 182805, 22 April 2015).
Sec. 35. When to make offer Testimonial evidence - must be offered at the time the witness is called to testify. Documentary and object evidence - must be offered after the presentation of a party's testimonial evidence. Such offer shall be done orally unless allowed by the court to be done in writing (Rule 132, Sec. 35).
Sec. 36. Objection Rule: grounds for objections must always be specified. (Rule 132, Sec. 36, par. 4). When to make objections: (a) Testimonial evidence - must be objected to immediately after the offer is made. (Rule 132, Sec. 36, par. 1). (b) Objection to a question during oral examination - must be made as soon as the grounds therefor shall become reasonably apparent (Rule 132, Sec. 36, par. 2). (c) Documentary evidence - shall be objected to within three (3) days after notice of the offer unless a different period is allowed by the court (Rule 132, Sec. 36, par. 3). Sec. 37. When repetition of objection unnecessary Repeating an objection is NOT necessary when it becomes reasonably apparent in the course of the examination of a witness that the questions being propounded are of the same class as those to which objection has been made, whether such objection was sustained or overruled. (Rule 132, Sec. 37). In such case, it is sufficient for the adverse party to record his continuing objection to such class of questions. Rule 132, Sec. 37).
Sec. 38. Ruling
When made: Immediately after the objection is made. Exception: Unless the court desires to take a reasonable time to inform itself on the question presented (Note: but the ruling shall always be made during the trial and at such time as will give the party against whom it is made an opportunity to meet the situation presented by the ruling).
Content of ruling: The reason for sustaining or overruling an objection need NOT be stated. (In contrast, objections made by lawyers must always specify the grounds therefor.) Exception: If objection is based on two or more grounds, a ruling sustaining the objection on one or some of them must specify the ground or grounds relied upon.
Erroneous rulings on admissibility of evidence are: (a) Considered errors in judgment, not of jurisdiction;
40 (b) Interlocutory in nature; (c) May not be the subject of a separate appeal or review on certiorari; (d) Must be assigned as errors and reviewed in the appeal properly taken from the decision rendered by the trial court on the merits of the case. (Triplex Enterprises, Inc. v. PNB-Republic Bank, et al. G.R.,No. 151007, 17 July 2006). Sec. 39. Striking out answer
Should a witness answer the question before the adverse party had the opportunity to voice fully its objection to the same, and such objection is found to be meritorious, the court shall sustain the objection and order the answer given to be stricken off the record (Rule 132, Sec. 39). On proper motion, the court may also order the striking out of answers which are incompetent, irrelevant, or otherwise improper (Rule 132, Sec. 39). Sec. 40. Tender of excluded evidence
E.
If documents or things offered in evidence are excluded by the court, the offeror may have the same attached to or made part of the record. If the evidence excluded is oral, the offeror may state for the record the name and other personal circumstances of the witness and the substance of the proposed testimony (Rule 132, Sec. 40).
Weight and Sufficiency of Evidence
Rule 133.
Weight and Sufficiency of Evidence
Sec. 1. Preponderance of evidence, how determined Preponderance of evidence is required in civil cases. In determining preponderance of evidence, the court may consider: All the facts and circumstances of the case; The witnesses’ manner of testifying; Their intelligence; Their means and opportunity of knowing the facts to which they testify; The probability or improbability of their testimony; Their interest or want of interest; Personal credibility so far as the same may legitimately appear upon the trial; Number of witnesses (note preponderance is not necessarily equivalent with the no. of witnesses). Sec. 2. Proof beyond reasonable doubt
Proof beyond reasonable doubt - is that degree of proof which produces conviction in an unprejudiced mind; required in criminal cases. Absolute certainty is not required, only moral certainty.
Sec. 3. Extrajudicial confession, not sufficient ground for conviction
An extrajudicial confession made by an accused, is not a sufficient ground for conviction UNLESS corroborated by evidence of corpus delicti. (Rule 133, Sec. 3). Sec. 4. Circumstantial evidence, when sufficient
Requisites for circumstantial evidence to be sufficient for conviction: (a) There is more than 1 circumstance; (b) The facts from which the inferences are derived are proven; and (c) The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. (Rule 133, Sec. 4).
Lest this statement be misunderstood, a finding of guilt is still possible despite the absence of direct evidence. Conviction based on circumstantial evidence may result if sufficient circumstances, proven and taken together, create an unbroken chain leading to the reasonable conclusion that the accused, to the exclusion of all others, was the author of the crime (Almojuela v. People of the Philippines, G.R. No. 183202, 2 June 2014). To uphold a conviction based on circumstantial evidence, it is essential that the circumstantial evidence presented must constitute an unbroken chain which leads one to a fair and reasonable conclusion pointing to the accused, to the exclusion of the others, as the guilty person. Stated differently, the test to determine whether or not the circumstantial evidence on record is sufficient to convict the accused is that the series of circumstances duly proven must be consistent with each other and that each and every circumstance must be consistent with the accused’s guilt and inconsistent with his innocence (Atienza v. People, G.R. No. 188694, 12 February 2014). The positive identification of the accused-appellant constitutes direct evidence, and not merely circumstantial evidence (People v. Bas, G.R. No. 195196, 13 July 2015).
41
For the defense of alibi to prosper, the accused must not only prove by clear and convincing evidence that he was at another place at the time of the commission of the offense but that it was physically impossible for him to be at the scene of the crime. [Accused] himself admitted that he was just one kilometer away from the crime scene when the incident happened during the unholy hour of 1:00 a.m. of July 15, 2001 As such, [the accused] failed to prove physical impossibility of his being at the crime scene on the date and time in question. Just like denial, alibi is an inherently weak defense that cannot prevail over the positive identification by the witnesses of the petitioners as the perpetrators of the crime. In the present case, the accused was positively identified by the prosecution witnesses as one of the assailants. Moreover, alibi becomes less credible if offered by the accused himself and his immediate relatives as they are expected to make declarations in his favor, as in this case, where Emilio, his father and brother insisted that the former was somewhere else when the incident occurred. For these reasons, Emilio's defense of alibi will not hold. (Ibañez v. People, GR No. 190798, 27 January 2016)
Sec. 5. Substantial evidence
Substantial evidence is that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion. 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. Clear and convincing evidence -- Evidence is clear and convincing if it produces in the mind of the trier of fact a firm belief or conviction as to allegations sought to be established. It is intermediate, being more than preponderance, but not to the extent of such certainty as required beyond reasonable doubt in criminal cases (Black’s Law Dictionary, 5th ed., 227). Sec. 6. Power of the court to stop further evidence
The court may stop the introduction of further testimony upon any particular point when the evidence upon it is already so full that more witnesses to the same point cannot be reasonably expected to be additionally persuasive. But this power should be exercised with caution. (Rule 133, Sec. 6) Sec. 7. Evidence on motion
When a motion is based on facts not appearing of record the court may hear the matter on affidavits or depositions presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions. (Rule 133, Sec. 7). Examples of motions which require presentation of evidence: Motion for bail; Application for TRO/Injunction; or Motion to dismiss.
REMEDIAL LAW – BAR TRENDING FREQUENTLY ASKED QUESTIONS (FAQs)
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Environmental Cases
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EVIDENCE FREQUENTLY ASKED QUESTIONS (FAQs) 6 7
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Read: (1)
Rule on Examination of Child Witness (A.M. No. 00-4-07-SC)
Applicability: Unless otherwise provided, the Rule shall govern the examination of child witnesses who are victims of crime, accused of a crime, and witnesses to crime. It shall apply in all criminal proceedings and non-criminal proceedings involving child witnesses (Sec. 1).
Meaning of “child witness” -- A child witness is any person who at the time of giving testimony is below the age of 18 years. In child abuse cases, 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 a physical or mental disability or condition (Sec. 4[a]).
Competency of a child witness -- Every child is presumed qualified to be a witness. However, the court shall conduct a competency examination of a child, motu propio or on motion of a party, when it finds that substantial doubt exists regarding the stability of the child to perceive, remember, communicate, distinguish truth from falsehood, or appreciate the duty to tell the truth in court (Sec. 6).
2
Every child of sound mind with the capacity to perceive and make known his perception can be believed in the absence of any showing of an improper motive to testify. Once it is established that the child fully understands the character and nature of an oath, the testimony is given full credence (People of the Philippines v. Edison Magbitang, G.R. No. 175592, 14 June 2016).
Proof of necessity -- A party seeking a competency examination must present proof of necessity of competency examination. The age of the child by itself is not a sufficient basis for a competency examination (Sec. 6[a]).
Burden of proof -- To rebut the presumption of competence enjoyed by a child, the burden of proof lies on the party challenging his competence (Sec. 6[b]).
Persons allowed at competency examination – Only the following are allowed to attend a competency examination: (a) The judge and necessary court personnel; (b) The counsel for the parties; (c) The guardian ad litem; (d) One or more support persons for the child; and (e) The defendant, unless the court determines that competence can be fully evaluated in his absence (Sec. 6[c]).
Conduct of examination -- Examination of a child as to his competence shall be conducted only by the judge. Counsel for the parties, however, can submit questions to the judge that he may, in his discretion, ask the child (Sec. 6[d]).
Developmentally appropriate questions -- The questions asked at the competency examination shall be appropriate to the age and developmental level of the child; shall not be related to the issues at trial; and shall focus on the ability of the child to remember, communicate, distinguish between truth and falsehood, and appreciate the duty to testify truthfully (Sec. 6[e]).
Continuing duty to assess competence -- The court has the duty of continuously assessing the competence of the child throughout his testimony (Sec. 6[f]).
Examination of a child witness -- The examination of a child witness presented in a hearing or any proceeding shall be done in open court. Unless the witness is incapacitated to speak, or the question calls for a different mode of answer, the answers of the witness shall be given orally. The party who presents a child witness or the guardian ad litem of such child witness may, however, move the court to allow him to testify in the manner provided in this Rule (Sec. 8).
The trend in procedural law is to give a wide latitude to the courts in exercising control over the questioning of a child witness. Under Sections 19 to 21 of the Rules on Examination of a Child Witness, child witnesses may testify in a narrative form and leading questions may be allowed by the trial court in all stages of the examination if the same will further the interest of justice (People of the Philippines v. Rene Santos, G.R. No. 172322, 8 September 2006).
A child of tender years may be asked leading questions under Section 10 (c), Rule 132 of the Rules of Court. Section 20 of the 2000 Rule on Examination of a Child Witness also provides that the court may allow leading questions in all stages of examination of a child if the same will further the interests of justice. This rule was formulated to allow children to give reliable and complete evidence, minimize trauma to children, encourage them to testify in legal proceedings and facilitate the ascertainment of truth (People of the Philippines v. Cerilo Ilogon, G.R. No. 206294, 29 June 2014).
Live-link TV testimony of a child witness (a) The prosecutor, counsel or the guardian ad litem may apply for an order that the testimony of the child be taken in a room outside the courtroom and be televised to the courtroom by live-link television. Before the guardian ad litem applies for an order under this section, he shall consult the prosecutor or counsel and shall defer to the judgment of the prosecutor or counsel regarding the necessity of applying for an order. In case the guardian ad litem is convinced that the decision of the prosecutor or counsel not to apply will cause the child serious emotional trauma, he himself may apply for the order. The person seeking such an order shall apply at least five (5) days before the trial date, unless the court finds on the record that the need for such an order was not reasonably foreseeable. (b) The court may motu propio hear and determine, with notice to the parties, the need for taking the testimony of the child through live-link television. (c) The judge may question the child in chambers or in some comfortable place other than the courtroom, in the presence of the support person, guardian ad litem, prosecutor, and counsel for the parties. The questions of the judge shall not be related to the issues at trial but to the feelings of the child about testifying in the courtroom. (d) The judge may exclude any person, including the accused, whose presence or conduct causes fear to the child.
(e) The court shall issue an order granting or denying the use of live-link television and stating the reasons therefor. It shall consider the following factors:
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the age and level of development of the child; his physical and mental health, including any mental or physical disability; any physical, emotional, or psychological injury experienced by him; the nature of the alleged abuse; any threats against the child; his relationship with the accused or adverse party; his reaction to any prior prior encounters with the accused in court or elsewhere; his reaction prior to trial when the topic of testifying was discussed with him by parents or professionals; specific symptoms of stress exhibited by the child in the days prior to testifying; testimony of expert or lay witnesses; the custodial situation of the child and the attitude of the members of his family regarding the events about which he will testify; and other relevant factors, such as court atmosphere and formalities of court procedure.
(f) The may order that the testimony of the child be taken by live-link television if there is a substantial 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. The trauma must be of a kind which would impair the completeness or truthfulness of the testimony of the child. (g) If the court orders the taking of testimony by live-link television: (i) The child shall testify in a room separate from the courtroom in the presence of the guardian ad litem; one or both of his support persons, the facilitator and interpreter, if any; a court officer appointed by the court; persons necessary to operate the closed-circuit television equipment; and other persons whose presence are determined by the court to be necessary to the welfare and well-being of the child; (ii) The judge, prosecutor, accused, and counsel for the parties shall be in the courtroom. The testimony of the child shall be transmitted by live-link television into the courtroom for viewing and hearing by the judge, prosecutor, counsel for the parties, accused, victim, and the public unless excluded. (iii) If it is necessary for the child to identify the accused at trial, the court may allow the child to enter the courtroom for the limited purpose of identifying the accused, or the court may allow the child to identify the accused by observing the image of the latter on a television monitor. (iv) The court may set other conditions and limitations on the taking of the testimony that it finds just and appropriate, taking into consideration the best interests of the child. (v) The testimony of the child shall be preserved on videotape, digital disc, or other similar devices which shall be made part of the court record and shall be subject to a protective order as provided in Section 31(b).
Videotaped deposition of a child witness (a) The prosecutor, counsel, or guardian ad litem may apply for an order that a deposition be taken of the testimony of the child and that it be recorded and preserved on videotape. Before the guardian ad litem applies for an order under this section, he shall consult with the prosecutor or counsel subject to the second and third paragraphs of section 25(a). (b)
If the court finds that the child will not be able to testify in open court at trial, it shall issue an order that the deposition of the child be taken and preserved by videotape.
(c) The judge shall preside at the videotaped deposition of a child. Objections to deposition testimony or evidence, or parts thereof, and the grounds for the objection shall be stated and shall ruled upon at the time of the taking of the deposition. The other persons who may be permitted to be present at the proceeding are: The prosecutor; The defense counsel; The guardian ad litem; The accused, subject to subsection (e); Other persons whose presence is determined by the court to be necessary to the welfare and well-being of the child; One or both of his support persons, the facilitator and interpreter, if any; The court stenographer; and Persons necessary to operate the videotape equipment. (d) The rights of the accused during trial, especially the right to counsel and to confront and cross-examine the child, shall not be violated during the deposition. (e) If the order of the court is based on evidence that the child is unable to testify in the physical presence of the accused, the court may direct the latter to be excluded from the room in which the deposition is conducted. In case of exclusion of the accused, the court shall order that the testimony of the child be taken by live-link television in accordance with section 25 of this Rule. If the accused is excluded from the deposition, it is not necessary that the child be able to view an image of the accused. (f) The videotaped deposition shall be preserved and stenographically recorded. The videotape and the stenographic notes shall be transmitted to the clerk of the court where the case is pending for safekeeping and shall be made a part of the record. (g) The court may set other conditions on the taking of the deposition that it finds just and appropriate, taking into consideration the best interests of the child, the constitutional rights of the accused, and other relevant factors.
4 (h) The videotaped deposition and stenographic notes shall be subject to a protective order as provided in section 31(b).
(i)
If, at the time of trial, the court finds that the child is unable to testify for a reason stated in section 25(f) of this Rule, or is unavailable for any reason described in section 4(c), Rule 23 of the 1997 Rules of Civil Procedure, the court may admit into evidence the videotaped deposition of the child in lieu of his testimony at the trial. The court shall issue an order stating the reasons therefor.
(j)
After the original videotaping but before or during trial, any party may file any motion for additional videotaping on the ground of newly discovered evidence. The court may order an additional videotaped deposition to receive the newly discovered evidence (Sec. 27).
Hearsay exception in child abuse cases A statement made by a child describing any act or attempted act of child abuse, not otherwise admissible under the hearsay rule, may be admitted in evidence in any criminal or non-criminal proceeding subject to the following rules: (a) Before such hearsay statement may be admitted, its proponent shall make known to the adverse party the intention to offer such statement and its particulars to provide him a fair opportunity to object. If the child is available, the court shall, upon motion of the adverse party, require the child to be present at the presentation of the hearsay statement for crossexamination by the adverse party. When the child is unavailable, the fact of such circumstance must be proved by the proponent. (b) In ruling on the admissibility of such hearsay statement, the court shall consider the time, content and circumstances thereof which provide sufficient indicia of reliability. It shall consider the following factors: Whether there is a motive to lie; The general character of the declarant child; Whether more than one person heard the statement; Whether the statement was spontaneous; The timing of the statement and the relationship between the declarant child and witness; Cross-examination could not show the lack of knowledge of the declarant child; The possibility of faulty recollection of the declarant child is remote; and The circumstances surrounding the statement are such that there is no reason to suppose the declarant child misrepresented the involvement of the accused. (c) The child witness shall be considered unavailable under the following situations: Is deceased, suffers from physical infirmity, lack of memory, mental illness, or will be exposed to sever psychological injury; or Is absent from the hearing and the proponent of his statement has been unable to procure his attendance by process or other reasonable means. (d) When the child witness is unavailable, his hearsay testimony shall be admitted only if corroborated by other admissible evidence (Sec. 28).
Sexual abuse shield rule Inadmissible evidence: The following evidence is not admissible in any criminal proceeding involving alleged child sexual abuse: (a) Evidence offered to prove that the alleged victim engaged in other sexual behavior; and (b) Evidence offered to prove the sexual pre-disposition of the alleged victim.
Exception: Evidence of specific instances of sexual behavior by the alleged victim to prove that a person other than the accused was the source of semen, injury, or other physical evidence shall be admissible. A party intending to offer such evidence must: (a) File a written motion at least fifteen (5) days before trial, specifically describing the evidence and stating the purpose for which it is offered, unless the court, for good cause, requires a different time for filing or permits filing during trial; and (b) Serve the motion on all parties and the guardian ad litem at least three (3) days before the hearing of the motion.
Before admitting such evidence, the court must conduct a hearing in chambers and afford the child, his guardian ad litem, the parties, and their counsel a right to attend and be heard. The motion and the record of the hearing must be sealed and remain under seal and protected by a protected order set forth in section 31(b). The child shall not be required to testify at the hearing in chambers except with his consent (Sec. 30).
Protective Orders (a) Protective order -- Any videotape or audiotape of a child that is part of the court record shall be under a protective order that provides as follows: Tapes may be viewed only by parties, their their counsel, their expert witness, and the guardian ad litem. No tape, or any portion thereof, shall be divulged by any person mentioned in subsection (a) to any other person, except as necessary for the trial.
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No person shall be granted access to the tape, its transcription or any part thereof unless he signs a written affirmation that he has received and read a copy of the protective order; that he submits to the jurisdiction of the court with respect to the protective order; and that in case of violation thereof, he will be subject to the contempt power of the court. Each of the tape cassettes and transcripts thereof made available to the parties, their counsel, and respective agents shall bear a cautionary notice that the object or document and the contents thereof are subject to a protective order issued by the court. No tape shall be given, loaned, sold, or shown to any person except as ordered by the court. Within thirty (30) days from receipt, all copies of the tape and any transcripts thereof shall be returned to the clerk of court for safekeeping unless the period is extended by the court on motion of a party. This protective order shall remain in full force and effect until further order of the court (Sec. 31 [b]).
(a) Additional protective orders The court may, motu propio or on motion of any party, the child, his parents, legal guardian, or the guardian ad litem, issue additional orders to protect the privacy of the child (Sec. 31(c).
(2)
Rule in DNA Evidence (A.M. No. 06-11-5-SC)
Meaning of DNA “DNA” means deoxyribonucleic acid, which is the chain of molecules found in every nucleated cell of the body. The totality of an individual's DNA is unique for the individual, except identical twin. (Sec. 3 [b], A.M. No. 06-11-5-SC).
Who may issue a DNA testing order The appropriate court, at any time, either motu proprio or on application of any person who has a legal interest in the matter in litigation. (Sec. 4) The Rule on DNA Evidence does not preclude the conduct of DNA testing, without need of a prior court order, at the behest of any party, including law enforcement agencies, before a suit or proceeding is commenced.
Conditions of issuance (1) Due notice and hearing; and (2) a showing that: (a) A biological sample exists that is relevant to the case; (b) The biological sample: (i) was not previously subjected to the type of DNA testing now requested; or (ii) was previously subjected to DNA testing, but the results may require confirmation for good reasons; (c) The DNA testing uses a scientifically valid technique; (d) The DNA testing has the scientific potential to produce new information that is relevant to the proper resolution of the case; and (e) The existence of other factors, if any, which the court may consider as potentially affecting the accuracy or integrity of the DNA testing.
Contents of DNA testing order If the court finds that the requirements in Section 4 have been complied with, the court shall – (a) Order that biological samples be taken from any person or crime scene evidence; (b) Impose reasonable conditions on DNA testing designed to protect the integrity of the biological sample, the testing process and the reliability of the test results, and (c) Issue an order requiring all parties to the case or proceedings to witness the DNA testing to be conducted if there not enough samples for confirmatory testing of the other party (Section 5).
The court my order that the result of the DNA testing be simultaneously released to the parties. (Section 5). N.B.: An order granting the DNA testing shall be immediately executory and shall not be appealable. Any petition for certiorari initiated therefrom shall not, in any way, stay the implementation thereof, unless a higher court issues an injunctive order (Section 5). The grant of a DNA testing application shall not be construed as an automatic admission into evidence of any component of the DNA evidence that may be obtained as a result thereof.
Post-conviction DNA testing; remedy Court order is not required. This remedy is available to the prosecution or any person convicted by final and executory judgment provided that: (a) a biological sample exists; (b) such sample is relevant to the case; and (c) the testing would probably result in the reversal or modification of the judgment of conviction (Section 6)
Remedy if the results are favorable to the convict File a petition for a writ of habeas corpus in the court of origin. A similar petition may be filed either in the Court of Appeals or the Supreme Court, or with any member of said courts, which may conduct a hearing thereon or remand the petition to the court of origin and issue the appropriate orders. In case the court, after due hearing, finds the petition to be meritorious, it shall reverse or modify the judgment of conviction and order the release of the convict, unless continued detention is justified for a lawful cause. (Section 10).
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Factors considered in the assessment of probative value of DNA evidence: (a) The chain of custody (i.e., handling and collection biological samples; possibility of contamination of the samples) (b) The DNA testing methodology, including the procedure followed in analyzing the samples, the advantages and disadvantages of the procedure, and compliance with the scientifically valid standards in conducting the tests; (c) The forensic DNA laboratory, including accreditation by any reputable standards-setting institution and the qualification of the analyst who conducted the tests. (d) The reliability of the testing results
N.B.: If the laboratory is not accredited, the relevant experience of the laboratory in forensic casework and credibility must be properly established (Section 7[b]) The provisions of the Rules of Court concerning the appreciation of evidence shall apply suppletorily in assessing the probative value of DNA evidence (Section 7, par. 2).
In assessing the probative value of DNA evidence, therefore, courts should consider, among others things, the following data: how the samples were collected, how they were handled, the possibility of contamination of the samples, the procedure followed in analyzing the samples, whether the proper standards and procedures were followed in conducting the tests, and the qualification of the analyst who conducted the tests (People of the Philippines v. Vallejo, G.R. No. 144656, 9 May 2002).
In assessing the probative value of DNA evidence, courts should consider, inter alia, the following factors: how the samples were collected, how they were handled, the possibility of contamination of the samples, the procedure followed in analyzing the samples, whether the proper standards and procedures were followed in conducting the tests, and the qualification of the analyst who conducted the tests (People of the Philippines v. Yatar, G.R. No. 150224, 19 May 2004).
Evaluation of DNA Testing Results; Factors (a) The evaluation of the weight of matching DNA evidence or the relevance of mismatching DNA evidence; (b) The results of the DNA testing in the light of the totality of the other evidence presented in the case; and (c) DNA results that exclude the putative parent from paternity shall be conclusive proof of non-paternity (Section 9).
If the value of the Probability of Paternity < 99.9%, the results of the DNA testing = corroborative evidence. If the value of the Probability of Paternity > 99.9% or higher = there shall be a disputable presumption of paternity (Section 9[c]).
DNA Testing Orders in paternity and filiation suits In Lucas v. Lucas (G.R. No. 190710, 6 June 2011), the Supreme Court felt the need to supplement Section 4 of the Rule on DNA Evidence and ruled that since a DNA Testing Order could indeed be likened to a “search,” it is proper that during hearings on motions for DNA testing, the movant must present prima facie evidence or establish a reasonable possibility of paternity.
Evaluation of the Reliability of DNA Testing Methodology; Factors (a) The falsifiability of the principles or methods used, that is, whether the theory or technique can be and has been tested; (b) The subjection to peer review and publication of the principles or methods; (c) The general acceptance of the principles or methods by the relevant scientific community; (d) The existence and maintenance of standards and controls to ensure the correctness of data generated; (e) The existence of an appropriate reference population database; and (f) The general degree of confidence attributed to mathematical calculations used in comparing DNA profiles and the significance and limitation of statistical calculations used in comparing DNA profiles (Section 8)
(3) Rules on Electronic Evidence (A.M. No. 01-7-01-SC)
Scope -- The Rules on Electronic Evidence (“REE”) apply whenever an electronic document or electronic data message is offered or used in evidence (REE, Sec. 1).
Meaning of electronic document “Electronic document” refers to information or the representation of information, data, figures, symbols or other modes of written expression, described or however represented: (e) by which a right is established or an obligation extinguished, or (f) by which a fact may be proved and affirmed, which is received, recorded, transmitted, stored, processed, retrieved or produced electronically.
It includes digitally signed documents and any print-out or output, readable by sight or other means, which accurately reflects the electronic data message or electronic document. Under the REE, the term “electronic document” is interchangeably with “electronic data message.” (REE, Rule 2, Sec. 1[h]).
An electronic document shall be regarded as the equivalent of an original document under the Best Evidence Rule, as long as it is a printout or output readable by sight or other means, showing to reflect the data accurately. (Rule 4, Section 1, A.M. No. 01-7-01-SC)
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Thus, to be admissible in evidence as an electronic data message or to be considered as the functional equivalent of an original document under the Best Evidence Rule, the writing must foremost be an "electronic data message" or an "electronic document” (MCC Industrial Sales Corporation v. Ssangyong Corporation, G.R. No. 170633, 17 October 2007).
“Electronic data message” refers to information generated, sent, received or stored by electronic, optical or similar means. (REE, Rule 2, Sec. 1[g]).
Meaning of “electronic signature” “Electronic signature” refers to any distinctive mark, characteristic and/or sound in electronic form, representing the identity of a person and attached to or logically associated with the electronic data message or electronic document or any methodology or procedure employed or adopted by a person and executed or adopted by such person with the intention of authenticating, signing or approving an electronic data message or electronic document. An electronic signature includes digital signatures.. (REE, Rule 2, Sec. 1[j]).
Evidentiary weight of electronic documents Electronic evidence is considered as the functional equivalent of paper-based documents. Whenever a rule of evidence refers to the term writing, document, record, instrument, memorandum or any other form of writing, such term shall include an electronic document (REE, Rule 3, Sec. 1) The electronic document shall be regarded as the equivalent of an original document under the Best Evidence Rule if it is a printout or output readable by sight or other means, shown to reflect the data accurately (REE, Rule 4, Sec. 1). Factors for assessing evidentiary weight: (a) The reliability of the manner or method in which it was generated, stored or communicated, including but not limited to input and output procedures, controls, tests and checks for accuracy and reliability of the electronic data message or document, in the light of all the circumstances as well as any relevant agreement; (b) The reliability of the manner in which its originator was identified; (c) The integrity of the information and communication system in which it is recorded or stored, including but not limited to the hardware and computer programs or software used as well as programming errors; (d) The familiarity of the witness or the person who made the entry with the communication and information system; (e) The nature and quality of the information which went into the communication and information system upon which the electronic data message or electronic document was based; or (f) Other factors which the court may consider as affecting the accuracy or integrity of the electronic document or electronic data message. (REE, Rule 7, Sec. 1).
Integrity of an information and communication system In any dispute involving the integrity of the information and communication system in which an electronic document or electronic data message is recorded or stored, the court may consider, among others, the following factors: (a) Whether the information and communication system or other similar device was operated in a manner that did not affect the integrity of the electronic document, and there are no other reasonable grounds to doubt the integrity of the information and communication system; (b) Whether the electronic document was recorded or stored by a party to the proceedings with interest adverse to that of the party using it; or (c) Whether the electronic document was recorded or stored in the usual and ordinary course of business by a person who is not a party to the proceedings and who did not act under the control of the party using it. (REE, Rule 7, Sec. 2).
Method of Proof All matters relating to the admissibility and evidentiary weight of an electronic document may be established by an affidavit stating facts of direct personal knowledge of the affiant or based on authentic records (REE, Rule 9). The affidavit must affirmatively show the competence of the affiant to testify on the matters contained therein (REE, Rule 9, Sec. 1). The affiant shall be made to affirm the contents of the affidavit in open court and may be cross-examined as a matter of right by the adverse party (REE, Rule 9, Sec. 2).
Authentication of Electronic Documents Manner of authentication: Before any private electronic document offered as authentic is received in evidence, its authenticity must be proved by any of the following means: (a) by evidence that it had been digitally signed by the person purported to have signed the same; (b) by evidence that other appropriate security procedures or devices as may be authorized by the Supreme Court or by law for authentication of electronic documents were applied to the document; or (c) by other evidence showing its integrity and reliability to the satisfaction of the judge. (REE, Rule 5, Sec. 2).
Proof of electronically notarized document: a document electronically notarized in accordance with the rules promulgated by the Supreme Court shall be considered as a public document and proved as a notarial document under the Rules of Court. (REE, Rule 5, Sec. 2).
Authentication of Electronic Signatures An authenticated electronic signature under the REE is admissible in evidence as the functional equivalent of the signature of a person on a written document. (REE, Rule 6, Sec. 1).
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An electronic signature may be authenticated in any of the following manner: (a) By evidence that a method or process was utilized to establish a digital signature and verify the same; (b) By any other means provided by law; or (c) By any other means satisfactory to the judge as establishing the genuineness of the electronic signature. (REE, Rule 6, Sec. 2).
Business records as exception to the hearsay rule “Business records” include records of any business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit, or for legitimate or illegitimate purposes. (REE, Rule 2, Sec. 1[b]).
Inapplicability of the hearsay rule --- A memorandum, report, record or data compilation of acts, events, conditions, opinions, or diagnoses made by electronic, optical or other similar means at or near the time of or from transmission or supply of information by a person with knowledge thereof, and kept in the regular course or conduct of a business activity, and such was the regular practice to make the memorandum, report, record, or data compilation by electronic, optical or similar means, all of which are shown by the testimony of the custodian or other qualified witnesses, is excepted from the rule on hearsay evidence. (REE, Rule 8, Sec. 1).
However, the hearsay rule may be applied to business records as defined under the REE by presenting evidence of the untrustworthiness of: the source of information; the method or circumstances of the preparation, transmission or storage thereof. (REE, Rule 8, Sec. 2).
Audio, photographic, video and ephemeral evidence Audio, video and similar evidence shall be proven: (a) by the testimony of a person who was a party to the same or has personal knowledge thereof. (b) In the absence or unavailability of such witnesses, other competent evidence may be admitted. (c) If the foregoing communications are recorded or embodied in an electronic document, then the provisions of Rule 5 on authentication of electronic documents shall apply.
“Ephemeral electronic communication” refers to telephone conversations, text messages, chatroom sessions, streaming audio, streaming video, and other electronic forms of communication the evidence of which is not recorded or retained.(REE, Rule 2, Sec. 1[k]). Text messages are to be proved by the testimony of a person who was a party to the same or has personal knowledge of them. x x x As the recipient of those messages sent from and to the mobile phone in his possession, [PO3 Cambi] had personal knowledge of such messages and was competent to testify on them (People v. Noel Enojas, et al., G.R. No. 204894, 10 March 2014). The transcript of text messages is considered ephemeral electronic communications. Ephemeral electronic communications are now admissible evidence, subject to certain conditions. “Ephemeral electronic communication” refers to telephone conversations, text messages, chatroom sessions, streaming audio, streaming video, and other electronic forms of communication the evidence of which is not recorded or retained. It may be proven by the testimony of a person who was a party to the communications or has personal knowledge thereof. Under Section 1, Rule 11 of A.M. No. 01-7-01-SC, audio, photographic and video evidence of events, acts or transactions shall be admissible provided it shall be shown, presented or displayed to the court and shall be identified, explained or authenticated by the person who made the recording or by some other person competent to testify on the accuracy thereof. (Ella Bartolome v. Rosalie Maranan, A.M. No. P-11-2979, 18 November 2014).
Text messages have been classified as ephemeral electronic communication under Section 1(k), Rule 2 of the Rules on Electronic Evidence, and shall be proven by the testimony of a person who was a party to the same or has personal knowledge thereof (Vidallon-Magtolis v. Salud, A.M. No. CA-05-20-P, 9 September 2005).
(4) Judicial Affidavit Rule (A.M. No. 12-8-8-SC)
Scope- The Judicial Affidavit Rule shall apply to all actions, proceedings and incidents requiring the reception of evidence before: (a) The Metropolitan Courts, Municipal Trial Courts in Cities, the Municipal Trial Courts, the Municipal Circuit Trial Courts, and the Shari’a Circuit Courts; (b) The Regional Trial Courts and the Shari’a District Courts; (c) The Sandiganbayan, the Court of Tax Appeals, the Court of Appeals, and the Shari’a Appellate Courts; (d) The investigating officers and bodies authorized by the Supreme Court to receive evidence, including the IntegratedBar of the Philippines (IBP); and (e) The special courts and quasi-judicial bodies, whose rules of procedure are subject to the disapproval of the Supreme Court, insofar as their existing rules of procedure contravene the provisions of this Rule Note: The Judicial Affidavit Rule shall not apply to small claims cases under A.M. No. 08-8-7-SC.
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Submission of Judicial Affidavits and Exhibits- The parties shall file with the court and serve on the adverse party, personally or by licensed courier service, not later than five (5) days before pre-trial or preliminary conference or the scheduled hearing with respect to motions and incidents, the following: (a) The judicial affidavits of their witnesses, which shall take the place of such witnesses' direct testimonies; and (b) The parties' documentary or object evidence, if any, which shall be attached to the judicial affidavits (Sec. 2, Judicial Affidavit Rule).
Contents of Judicial Affidavits (Sec 4, Judicial Affidavit Rule) (a) Prepared in the language known to the witness (The Judicial Affidavit shall be accompanied by a translation in English or Filipino if not prepared in a language other than English or Filipino); (b) Name, age, residence or business address, and occupation of the witness; (c) Name and address of the lawyer who conducts or supervises the examination of the witness and the place where the examination is being held; (d) A statement that the witness is answering the questions asked of him, fully conscious that he does so under oath, and that he may face criminal liability for false testimony or perjury; (e) Questions asked of the witness and his corresponding answers, consecutively numbered that: (1) Show the circumstances under which the witness acquired the facts upon which he testifies; (2) Facts relevant to the issues; (3) Identify the attached documentary and object evidence (4) Establish the authenticity of the documentary and object evidence in accordance with the Rules of Court. (f) Signature of the witness over his printed name; (g) Jurat with signature of the notary public who administers the oath or an officer who is authorized by law to administer the same. (h) Sworn Attestation of the lawyer who conducted or supervised the examination of the witness, to the effect that: a. He faithfully recorded or caused to be recorded the questions he asked and the corresponding answers of the witness(es); and b. Neither the lawyer nor other person then present or assisting him coached the witness regarding the latter’s answer.
Effect of False Attestation- a false attestation shall subject the erring lawyer to disciplinary action, including disbarment.
Examination of the witness on his Judicial Affidavit- The adverse party shall have the right to cross-examine the witness on his judicial affidavit and on the exhibits attached to the same. The party who presents the witness may also examine him as on re-direct.
Section 5 of the Judicial Affidavit Rule expressly excludes from its application adverse parties and hostile witnesses. For the presentation of these types of witnesses, the provisions on the Rules of Court under the Revised Rules of Evidence and all correlative rules including the modes of disposition and discovery rules shall apply (Ng Meng Tam v. China Banking Corporation, G.R. No. 214054, 5 August 2015).
Application of Judicial Affidavit Rule to Criminal Actions (Sec. 9, Judicial Affidavit Rule): The Judicial Affidavit Rule shall apply to all criminal actions: (a) Where the maximum of the imposable penalty does not exceed six years; (b) Where the accused agrees to the use of judicial affidavits, irrespective of the penalty involved; or (c) With respect to the civil aspect of the actions, whatever the penalties involved are (Sec. 9).
The prosecution shall submit the judicial affidavits of its witnesses not later than five days (5) before the pre-trial, serving copies if the same upon the accused (Sec. 9). If the accused desires to be heard on his defense after receipt of the judicial affidavits of the prosecution, he shall have the option to submit his judicial affidavit as well as those of his witnesses within ten (10) days from receipt of such affidavits. These affidavits shall serve as direct testimonies of the accused and his witnesses when they appear before the court to testify (Sec. 9).
Effect of non-compliance with the Judicial Affidavit Rule (Sec 8, Judicial Affidavit Rule): o Failure to submit the required Judicial Affidavits: Deemed to have waived their submission The Court, may, however, allow only once the late submission of the same provided: (a) the delay is for a valid reason, (b) the delay would not unduly prejudice the opposing party, and (c) the defaulting party pays a fine of not less than Php1,000 but not more than P5,000, at the discretion of the Court. o o
o
Failure of the witness to appear at the Scheduled Hearing: The witness’ judicial affidavit shall not be considered. Failure of the counsel to appear without valid cause despite notice: The counsel is deemed to have waived his client’s right to confront by cross-examination the witnesses there present. Failure of the Judicial Affidavits to conform to the content and attestation requirements: The Judicial Affidavit shall not be admitted as evidence.
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The Court, may, however, allow only once the subsequent submission of the compliant replacement affidavits before the hearing or trial provided: (a) the delay is for a valid reason, (b) the delay would not unduly prejudice the opposing party, and (c) the defaulting party pays a fine of not less than Php1,000 but not more than P5,000, at the discretion of the Court.
(5)Guidelines to be observed by the Trial Court Judges and Clerks of Court in the conduct of Pre-Trial and use of DepositionDiscovery Measures (A.M. No. 03-1-09-SC)
Purposes: o To abbreviate court proceedings; o To ensure prompt disposition of cases and decongest court dockets; and o To further implement the pre-trial guidelines laid down in Administrative Circular No. 3-99 dated 15 January 1999.
One-Day Examination of Witness Rule- A witness has to be fully examined in one (1) day only. This rule shall be strictly adhered to, subject to the courts’ discretion during trial on whether or not to extend the direct and/or cross-examination for justifiable reasons. o On the last hearing day allotted for each party, he is require to make his formal offer of evidence after the presentation of his las witness and the opposing party is required to immediately interpose his objection thereto.
Most Important Witness Rule- Determine the most important witnesses to be heard and limit the number of witnesses. The facts to be proven by each witness and the approximate number of hours per witness shall be fixed.
(6) Pilot Rules for Preliminary Conference and Trial on the Issues (A.M. No. 12-8-8-SC)
Scope- These Pilot Rules for Preliminary Conference and Trial on the Issues shall apply to all civil actions in certain first and second level courts that have not yet undergone pre-trial.
Rule 22. Preliminary Conference o o o
o
Appearance of parties- It shall be the duty of the parties and their counsels to appear at the preliminary conference (Section 22.6). When non-appearance may be excused – (1) for a valid cause shown or (2) if the party is represented by another person fully authorized to act on his behalf respecting all the matters subject of the conference (Section 22.6). Failure of parties or counsels to appear- The court shall, within thirty (30) days from the date of the scheduled preliminary conference, render a decision adjudicating the other party’s claim after the court’s ex parte examination of such party’s witness or witnesses based on their judicial affidavits (Decision as in default) (Section 22.7). Remedy against Decision as in Default- Motion with the Court, with prior notice to the adverse party that his or her failure to comply with what was required of him or her has been due to: (1) extrinsic fraud or (2) unavoidable accident. If the ground is not meritorious, the court may still grant the motion, set aside the decision of default, and reschedule the preliminary conference, upon admission of error or neglect by the party or his counsel and after payment of fine.
Rule 24. Trial of Issues o Alternate Trial (Section 24.1)- One where the parties take turns in presenting their witnesses respecting the first factual issues or related issues stated in the order of trial. Note: The party who bears the burden of proving the affirmative of the issue under consideration shall be the first to present a witness. o Face-to-face Trial (Section 24.2)- One wherein witnesses from the contending sides appear together before the court, sit face-to-face around a table in a non-adversarial environment, and answer questions from the court as well as the parties’ counsel respecting the factual issue under consideration. o Options for trying the issues- The Court shall have the option to try the issues embodied in the Terms of Reference, either by alternate or face-to-face trial. In case the Court opts to try the issues by face-to-face trial, the court may conduct either simple or regular face-to-face trial. o Common Rules governing both alternate and face-to-face trials : Each factual issue shall be tried strictly in the sequence provided in the Order of Trial although two or more closely related issues may be simultaneously tried; A party may move on proper ground to disqualify a witness before he or she is examined and strike out his or her judicial affidavit or exclude any of the answers found in it on the ground of inadmissibility. A party may likewise move to exclude any of the exhibits attached to the judicial affidavit on the ground of inadmissibility. The court and counsels shall examine the witnesses and determine the truthfulness of the judicial affidavits that constitute their direct testimonies in the case. A witness may testify on one or more issues.
11 o
o
When face-to-face examination of witness shall not apply (Section 24.10): The face-to-face examination of witnesses shall not apply when one of the witnesses to the factual issue under consideration is either (a) a child covered by the Rule on Examination of a Child Witness, or (b) a person who is mentally, psychologically, or physically challenged or has a similar condition that puts such witness at a disadvantage in a face-to-face confrontation. Trials shall be intransferable (Section 24.14). As a general rule, because of the numerous persons involved in, and the complex preparations required for the conduct of trial, the dates set for trials shall be intransferable, except on the ground of a fortuitous event or serious illness of a counsel or witness. No motion for postponement or resetting shall be granted on the ground of serious illness of a counsel or witness unless the party concerned presents a medical certificate issued by a physician stating that the illness is of such gravity as to prevent the counsel or witness from attending the scheduled court hearing. The court may order the physician to appear before the court or order another physician to verify the truth If the certification turns out to be false, the certifying physician shall be held in contempt of court and punished accordingly.
RULES 128-132, RULES OF COURT A.
Preliminary Considerations
Rule 128. General Provisions Sec. 1. Evidence defined
Evidence is the means of ascertaining in a judicial proceeding, the truth respecting a matter of fact. Proof is the effect of evidence. It is the probative effect of evidence and is the conviction or persuasion of the mind resulting from a consideration of the latter; while evidence is the cause necessary to establish proof. It is also the mode and manner of proving competent facts. Questions of fact exist when the doubt or difference arises as to the truth or falsehood of alleged facts. Questions of law exist when the doubt or difference arises as to what the law is on a certain set of facts.
Sec. 2. Scope Rules of evidence shall be the same in all courts and in all trials and hearings, except as otherwise provided by law or the Rules of Court. Evidentiary rules under the Rules of Court are specifically applicable only in judicial proceedings. In quasi-judicial proceedings, the same apply by analogy, or in a suppletory character, and whenever practicable and convenient (Rule 1, Sec. 4). Sec. 3. Admissibility of evidence Requisites for admissibility of evidence: (a) Relevance Evidence is admissible when it is relevant to the issue. Relevance is determined by rules of logic and human experience. Relevance depends on the factum probandum, or the ultimate fact sought to be proved. Factum probans is the evidentiary fact or the fact by which the factum probandum is to be established. Factum probandum is the ultimate fact sought to be established. (b) Competence The evidence must not be excluded by law or by the Rules of Court. All facts having rational probative value are admissible unless some specific rule forbids their admission. Evidence on collateral matters shall not be allowed, except when it tends in any reasonable degree to establish the probability or improbability of the fact in issue. Competent evidence refers to evidence which is not excluded by law in a particular case. Credibility – refers to worthiness of belief, that quality which renders a witness worthy of belief (Black’s Law Dictionary, 5th ed., 330). Whether or not a witness or evidence is credible is an issue addressed to the judgment of the trial court (People v. Castro, G.R. No. 172874, 17 December 2008). Sec. 4. Relevancy; collateral matters Evidence must have such a relation to the fact in issue as to induce belief in its existence or non-existence. Evidence on collateral matters shall not be allowed, except when it tends in any reasonable degree to establish the probability or improbability of the fact in issue. B.
Admissibility
Rule 130. Rules of Admissibility
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Multiple admissibility - when evidence is relevant and competent for two or more purposes, such evidence should be admitted for any and all the purposes for which it is offered provided it satisfies all the requirements of law for its admissibility. (Regalado, Remedial Law Compendium [Vol. II], pp. 694-695).
Conditional admissibility - where the evidence at the time it is offered appears to be immaterial or irrelevant unless it is connected with the other facts to be subsequently proved, such evidence may be received on the condition that the other facts will be proved thereafter, otherwise the evidence will be stricken out.
Curative admissibility - when a party offers an inadmissible fact which is received because there is no objection by the other party. The other party does not acquire the right to introduce in reply to the same kind of evidence, except whenever it is needed for removing an unfair prejudice which might otherwise have ensued from the original evidence.
Direct evidence - refers to evidence that directly proves a fact without need to make inference from another fact.
Circumstantial evidence - refers to proof of the fact or facts from which, taken either singly or collectively, the existence of a particular fact in dispute may be inferred as a necessary or probable consequence.
Positive evidence - when a witness affirms that a fact did or did not occur. This is entitled to greater weight since witness relates matters within his personal knowledge.
Negative evidence - a witness states that an event did not occur or that the facts alleged to exist did not actually exist.
A.
Object (Real) Evidence Sec. 1. Object as evidence
Objects as evidence are those addressed to the senses of the court. Object evidence includes any article or object which may be known or perceived by the use of any of the senses – sight (visual), hearing (auditory), touch (tactile), taste (gustatory), or smell (olfactory). Documents may be considered object evidence if the same are presented for the following purposes: (a) to prove their existence or condition or the nature of the handwritings thereon; and (b) to determine the age of the paper used or the blemishes or alterations thereon. Requisites for admissibility: When an object is relevant to the fact in issue, it may be exhibited to, examined or viewed by the court. Court may refuse introduction of object evidence and rely on testimonial evidence alone if: (a) Exhibition of such object is contrary to public policy, morals or decency; But if viewing is necessary in the interest of justice, the evidence may still be exhibited but the court may exclude the public from such view. Viewing may not be refused if the indecent or immoral object constitutes the very basis for the criminal or civil action. (b) To require that it be viewed in court or in an ocular inspection would result in delays, inconvenience and expenses out of proportion to the evidentiary value of such object; (c) Such object evidence would be confusing or misleading; and (d) Testimonial or documentary evidence already presented clearly portrays the object in question as to render viewing unnecessary.
Demonstrative evidence - is evidence in the form of a representation of an object. This is, as opposed to, real evidence, testimony, or other forms of evidence used at trial. Demonstrative evidence is useful in assisting a finder of fact (fact-finder) in establishing context among the facts presented in a case.
Autoptic preference - in legal parlance, simply means a tribunal's self-perception, or autopsy, of the thing itself. (Balingit v. COMELEC, G.R. No. 170300, 9 February 2007). It is referred to as the evidential datum which decision-makers will perceive using their five senses (Anderson, Schum, and Twining, Analysis of Evidence, 2nd Ed.).
Chain of Custody Rule – a method of authenticating evidence which 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. This would include testimony about every link in the chain, from the moment the item was picked up to the time it is offered in evidence, in such a way that every person who touched the exhibit would describe how and from whom it was received, where it was and what happened to it while in the witness' possession, the condition in which it was received and the condition in which it was delivered to the next link in the chain. These witnesses would then describe the precautions taken to ensure that there had been no change in the condition of the item and no opportunity for someone not in the chain to have possession of the same (People of the Philippines v. Dalawis, G.R. No. 179128, 9 November 2015; People v. Punzalan, G.R. No. 199087, 11 November 2015).
The rule on chain of custody under the Section 21, R.A. No. 9165 and its implementing rules expressly demands the identification of the persons who handle the confiscated items for the purpose of duly monitoring the authorized movements of the illegal drugs and/or drug paraphernalia from the time they are seized from the accused until the time
13 they are presented in court. Moreover, as a method of authenticating evidence, the chain of custody rule requires that the admission of an exhibit be preceded by evidence sufficient to support a finding that the matter in question is what the proponent claims it to be. It would include testimony about every link in the chain, from the moment the item was picked up to the time it is offered in evidence, in such a way that every person who touched the exhibit would describe how and from whom it was received, where it was and what happened to it while in the witness’ possession, the condition in which it was received and the condition in which it was delivered to the next link in the chain. These witnesses would then describe the precautions taken to ensure that there had been no change in the condition of the item and no opportunity for someone not in the chain to have possession of the same. Crucial in proving the chain of custody is the marking of the seized drugs or other related items immediately after they are seized from the accused. In this case, however, the records are bereft of any evidence, which would clearly show that the said plastic sachets were indeed marked in the presence of the accused. Nor was there any evidence as to the identity of the individual who brought the seized plastic sachets from the police station to the PNP (Carlito Valencia v. People, G.R. No. 198804, 22 January 2014).
It would include testimony about every link in the chain, from the moment the item was picked up to the time it is offered into evidence, in such a way that every person who touched the exhibit would describe how and from whom it was received, where it was and what happened to it while in the witnesses' possession, the condition in which it was received and the condition in which it was delivered to the next link in the chain.
In warrantless seizures such as a buy-bust operation the physical inventory and photograph shall be conducted at the nearest police station or office of the apprehending officer/team, whichever is practicable, consistent with the "chain of custody" rule (People v. Joselito Beran, G.R. No. 203028, 15 January 2014).
Although ideally the prosecution should offer a perfect chain of custody in the handling of evidence, "substantial compliance with the legal requirements on the handling of the seized item" is sufficient. This Court has consistently ruled that even if the arresting officers failed to strictly comply with the requirements under Section 21 of R.A. No. 9165, such procedural lapse is not fatal and will not render the items seized inadmissible in evidence. What is of utmost importance is the preservation of the integrity and evidentiary value of the seized items, as the same would be utilized in the determination of the guilt or innocence of the accused. In other words, to be admissible in evidence, the prosecution must be able to present through records or testimony, the whereabouts of the dangerous drugs from the time these were seized from the accused by the arresting officers; turned-over to the investigating officer; forwarded to the laboratory for determination of their composition; and up to the time these are offered in evidence. For as long as the chain of custody remains unbroken, as in this case, even though the procedural requirements provided for in Sec. 21 of R.A. No. 9165 was not faithfully observed, the guilt of the accused will not be affected (People v. Ortega, G.R. No. 207392, 2 July 2014).
Although the Court has recognized that minor deviations from the procedures under R.A. No. 9165 would not automatically exonerate an accused, we have also declared that when there is gross disregard of the procedural safeguards prescribed in the substantive law (R.A. No. 9165), serious uncertainty is generated about the identity of the seized items that the prosecution presented in evidence. This doubt cannot be remedied by simply invoking the presumption of regularity in the performance of official duties, for a gross, systematic, or deliberate disregard of the procedural safeguards effectively produces an irregularity in the performance of official duties (People v. Edaño, G.R. No. 188133, 7 July 2014).
The failure of the prosecution to show that the police officers conducted the required physical inventory in the place where the subject shabu was seized does not automatically render accused’s arrest illegal or the items seized from him inadmissible. A proviso was added in the implementing rules that "non-compliance with these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items." Pertinently, it is the preservation of the integrity and evidentiary value of the seized items which must be proven to establish the corpus delicti. The prosecution was able to preserve the integrity and evidentiary value of the said illegal drugs. The concurrence of all elements of the illegal sale of shabu was proven by the prosecution. The chain of custody does not appear to have been broken. The recovery and handling of the seized drugs were satisfactorily established. As correctly found by the appellate court, "no ‘break’ whatsoever in the chain of custody of the prohibited drugs occurred. The testimonial, documentary, and object evidence presented by the prosecution established every link in the custody of the prohibited drugs. This leads to no other conclusion than that the specimen examined by the forensic chemist, which tested positive for shabu, and which were presented as evidence during the trial, were the ones taken from accused-appellant during the buy-bust operation." (People v. Fang, G.R. No. 199874, 23 July 2014).
A buy bust operation is not invalidated by mere non-coordination with the PDEA (People v. Lafaran, G.R. No. 208015, 14 October 2015).
To ensure that the integrity and the evidentiary value of the seized drug are preserved, the chain of custody rule requires the prosecution to be able to account for each link in the chain of custody of the dangerous drug, from the moment it was seized from the accused up to the time it was presented in court. Testimony must be presented on every link in the chain of custody, from the moment the dangerous drug was seized up to the time it is offered in evidence (People of the Philippines v. Quim, G.R. No. 213919, 15 June 2016).
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R.A. No. 9165 and its implementing rules and regulations both state that non-compliance with the procedures thereby delineated and set would not necessarily invalidate the seizure and custody of the dangerous drugs provided there were justifiable grounds for the non-compliance, and provided that the integrity of the evidence of thecorpus delicti was preserved (People of the Philippines v. Enrique Miranda, G.R. No. 206880, 29 June 2016).
Essential links in the chain of custody of seized illegal drugs: (a) the seizure and marking, if practicable, of the illegal drug recovered from the accused by the apprehending officer; (b) the turnover of the illegal drug seized by the apprehending officer to the investigating officer; (c) the turnover by the investigating officer of the illegal drug to the forensic chemist for laboratory examination; and (d) the turnover and submission of the marked illegal drug seized from the forensic chemist to the court. (People v. Fermin and Madayag, Jr., G.R. No. 179344, 3 August 2011).
As provided by the implementing rules and jurisprudence, strict compliance of the requisites under Section 21 of Republic Act No. 9165 can be disregarded as long as the evidentiary value and integrity of the illegal drug are properly preserved; and its preservation can be well established if the chain of custody of illegal drug was unbroken. (People v. Fermin and Madayag, Jr., G.R. No. 179344, 3 August 2011).
Testimony on perfect chain not required -- The Supreme Court held that, “undeniably, a testimony about a perfect chain is not always the standard as it is almost always impossible to obtain an unbroken chain...what is of utmost importance is the preservation of the integrity and the evidentiary value of the seized items.” An astute perusal of Section 21 of the IRR of RA 9165 readily reveals that the custodial chain rule is not to be rigorously applied, provided "the integrity and evidentiary value of the seized items are properly preserved by the apprehending officer/team." Thus, the supposed procedural infirmities alleged by Quiamanlon with regard to the custody, photographing, inventory, and marking of the seized items do not, in any manner, affect the prosecution of the instant case and do not render her arrest illegal or the items seized from her inadmissible (People v. Quiamanlon, G.R. No. 191198, 26 January 2011).
Presentation of confidential informant not indispensable -- The non-presentation of the confidential informant is not fatal to the prosecution’s case. The presentation of an informant is not a requisite in the prosecution of drug cases. The failure to present the informant does not vitiate the prosecution’s cause as his testimony is not indispensable to a successful prosecution for drug-pushing since it would be merely corroborative of, and cumulative with, that of the poseur-buyer who was presented in court and testified on the facts and circumstances of the sale and delivery of the prohibited drug. (People v. Andres, G.R. No. 193184, 7 February 2011).
Failure to immediately mark seized drugs -- The failure to immediately mark seized drugs will not automatically impair the integrity of chain of custody as long as the integrity and the evidentiary value of the seized items have been preserved, as these would be utilized in the determination of the guilt or innocence of the accused. What is essential is that the police officers account for the crucial links in the chain of custody of seized illegal drugs. (People v. Morales, G.R. No. 188608, 9 February 2011).
Failure to take photographs and inventory the same is not fatal as long as the integrity and evidentiary value of seized illegal drugs were preserved. In People v. Presas (G.R. No. 182525, 2 March 2011), the Supreme Court noted that the failure of the prosecution to show that the police officers conducted the required physical inventory and photograph of the evidence confiscated pursuant to said guidelines, does not automatically render accused’s arrest illegal or the items seized from him inadmissible. Notably, the implementing rules of the IRR provide that "non-compliance with these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items." The same provision also states that it must still be shown that there exists justifiable grounds and proof that the integrity and evidentiary value of the evidence have been preserved.
Failure to sign the receipt- The fact that the Receipt/Inventory of Property Seized was not signed by Atty. Gaspe does not undermine the integrity and evidentiary value of the illegal drugs seized from accused-appellants. The failure to strictly comply with the prescribed procedures in the inventory of seized drugs does not render an arrest of the accused illegal or the items seized/confiscated from him inadmissible. What is of utmost importance is the preservation of the integrity and the evidentiary value of the seized items, as the same would be utilized in the determination of the guilt or innocence of the accused (People v. Punzalan, G.R. No. 199087, 11 November 2015).
Presumption of regularity, standing alone, cannot defeat the presumption of innocence -- The presumption that the police officers regularly performed their duty cannot, standing alone, defeat the presumption of innocence of the accused. Generally, law enforcers are presumed to have regularly performed their duty, but this is a mere procedural presumption which cannot overturn the constitutionally recognized presumption of innocence of the accused where lapses in the buy bust operation are shown. An effect of this lapse, as held in Lopez v. People, is to negate the presumption that official duties have been regularly performed by the police officers. Any taint of irregularity affects the whole performance and should make the presumption unavailable (People v. Martin, G.R. No. 193234, 19 October 2011).
Burden of proof and burden of evidence 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. (Rule 131, Sec. 1). Burden of evidence is the duty resting upon a party, by means of evidence, to create or meet a prima facie case.
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Burden of proof never shifts, while burden of evidence is transferred from one litigant to another depending on the progress of trial. Burden of Proof
Burden of Evidence
Civil cases – The burden is on the party who would be defeated if no evidence were given on either side. Criminal cases – The burden is always on the prosecution.
Both civil and criminal cases – The burden lies with the party who asserts an affirmative allegation.
The burden of proof does not shift as it remains throughout the trial with the party upon whom it is imposed.
The burden of evidence shifts from party to party depending on the exigencies of the case in the course of the trial.
The burden of proof is generally determined by the pleading filed by the party.
The burden of evidence is generally determined by the developments of the trial or by provisions of law.
Negative allegations a negative allegation does not have to be proven unless the same is an essential part of the cause of action or defense. However, in civil cases, even if a negative allegation is an essential part of the defense, such does not have to be proven if it is only for the purpose of denying the existence of a document which would properly be in the custody of the adverse party. If the criminal charge is predicated on a negative allegation or that a negative averment is an essential element of the crime - the prosecution has the burden of proving the charge. Where the negative of an issue does not permit of direct proof, or where the facts are more immediately within the knowledge of the accused, the onus probandi rests on him.
Equipoise or equiponderance doctrine Where the evidence on an issue of fact is in equipoise or there is doubt on which side the evidence preponderates, the party having the burden of proof fails upon that issue. (Rivera v. Court of Appeals, et al., G.R. No. 115625, January 23, 1998). Therefore, as neither party was able to make out a case, neither side could establish its cause of action and prevail with the evidence it had. They are thus no better off than before they proceeded to litigate, and, as a consequence thereof, the courts can only leave them as they are (Rivera, supra citing Municipality of Candijay, Bohol v. Court of Appeals, 251 SCRA 530). The equipoise rule finds application if the inculpatory facts and circumstances are capable of two or more explanations, one of which is consistent with the innocence of the accused and the other consistent with his guilt, for then the evidence does not fulfil the test of moral certainty, and does not suffice to produce a conviction. (Bernardino v. People, G.R. Nos. 170453 and 170518, 30 October 2006, 506 SCRA 237, 25).
B.
Documentary Evidence
Documents as evidence consist of writings or any material containing letters, words, numbers, figures, symbols or other modes of written expression offered as proof of their contents (Rule 130, Sec.2). A document is a deed, instrument or other duly authorized paper by which something is proved, evidenced or set forth. (U.S. v. Orera, 11 Phil 596) Documentary evidence is that which is furnished by written instruments, inscriptions and documents of all kinds. (32 CJS 475)
Requisites for admissibility: (a) the document must be relevant; (b) the evidence must be authenticated; (c) the document must be authenticated by a competent witness; and (d) the document must be formally offered in evidence.
Sec. 2. Documentary Evidence 1.
Best Evidence Rule
Best evidence rule, defined When the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document itself (Rule 130, Sec. 3).
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When applicable The rule is applicable when the subject of inquiry is the contents of a document (Rule 130, Sec. 3). The Best Evidence Rule applies only when the terms of a writing are in issue. When the evidence sought to be introduced concerns external facts, such as the existence, execution or delivery of the writing, without reference to its terms, the Best Evidence Rule cannot be invoked (Heirs of Prodon v. Heirs of Alvarez and Clave, G.R. No. 170604, 2 September 2013).
does NOT apply when: (a) to prove facts collateral to the issues, such as the nature, appearance or condition of physical objects or to evidence relating to a matter which does not come from the foundation of the cause of action or defense; or (b) when a party uses a document to prove the existence of an independent fact, as to which the writing is merely collateral or incidental (Lee v. People G.R. No. 159288, 19 October 1 2004).
Sec. 3. Original document must be produced; exceptions
Meaning of original The following are considered originals of a document: (a) The original of the document is one the contents of which are the subject of inquiry (Rule 130, Sec. 4); (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 (Rule 130, Sec. 4); (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 (Rule 130, Sec. 4); (d) An electronic document shall be regarded as the equivalent of an original document under the Best Evidence Rule if it is a printout or output readable by sight or other means, shown to reflect the data accurately. (Rules on Electronic Evidence, Sec. 1); (e) Copies as equivalent of the originals – When a document is in two or more copies executed at or about the same time with identical contents, or is a counterpart produced by the same impression as the original, or from the same matrix, or by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent techniques which accurately reproduces the original. (Rules on Electronic Evidence, Sec. 2)
Under the Rules on Electronic Evidence, copies or duplicates shall not be admissible to the same extent as the original if: a genuine question is raised as to the authenticity of the original; or in the circumstance it would be unjust or inequitable to admit the copy in lieu of the original. (Rules on Electronic Evidence, Sec. 2)
Sec. 4. Original of document 2.
Secondary Evidence
Sec. 5. When original document is unavailable Sec. 6. When original document is in adverse party’s custody or control Sec. 8. Party who calls for document not bound to offer it.
Requisites for introduction of secondary evidence Secondary evidence is allowed in the following instances:
(1) When original is unavailable (Rule 130, Sec. 5) – there must be proof by satisfactory evidence of: a.
b. c.
due execution of the original; how to prove due execution: i. testimony of person/s who executed document; ii. testimony of the person before whom its execution was acknowledged; or iii. any person who was present and saw it executed and delivered or who thereafter saw it and recognized the signatures, or one to whom the parties thereto had previously confessed the execution thereof loss, destruction or unavailability of all such originals; and Reasonable diligence and good faith in the search for or attempt to produce the original.
Secondary evidence which could be introduced after proving unavailability of the original (in the order stated): i. Copy of said document; ii. Recital of its contents in an authentic document; or iii. Recollection of witnesses.
Nevertheless, where the law specifically provides for the class and quantum of secondary evidence to establish the contents of a document, or bars secondary evidence of a lost document, such requirement is controlling.
(2) When original is in adverse party’s custody or control – requisites: a.
Document is in the custody or under the control of adverse party;
17 b. c.
He must have reasonable notice to produce it; If after such notice and after satisfactory proof of its existence, he fails to produce the document, secondary evidence may be presented as in the case of its loss.
Where the nature of the action is in itself a notice, as where it is for the recovery or annulment of documents wrongfully obtained or withheld by the other party, no notice to produce said documents is required. (Warner, Barnes & Co., Ltd. v. Buenaflor, 36 OG 3290) A party who calls for the production of a document and inspects the same is not obliged to offer it as evidence (Rule 130, Sec. 8).
(3) 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. (Rule 130, Sec. 3[c]). – requisites: a. the voluminous character of the records must be established; and b. such records must be made accessible to the adverse party so that their correctness may be tested on cross-examination
(4) When the original is a public record
When the original of document is in the custody of public officer or is recorded in a public office, its contents may be proved by a certified copy issued by the public officer in custody thereof.
3.
Parol Evidence Rule
Sec. 7. Evidence admissible when original document is a public record Sec. 9. Evidence of written agreements
The written agreement is already considered to contain all the things agreed upon. Being a final agreement any extraneous evidence or parol evidence is inadmissible for any of the following purposes: (a) to modify, (b) to explain; or (c) to add to the terms of the written agreement.
Parol Evidence refers to any evidence aliunde, whether oral or written, which is intended or tends to vary or contradict a complete and enforceable agreement embodied in a document.
Requisites for the application of Parol Evidence Rule a. There is a valid contract; b. The terms of agreement reduced to writing; c. There is an issue as to the terms of agreement; d. The dispute is between parties and their successors in interest (Rule 130, Sec. 9).
When parol evidence can be introduced: A party may present evidence to modify, explain or add to the terms of written agreement if he puts in issue in his pleading: An intrinsic ambiguity, mistake or imperfection in the written agreement; The failure of the written agreement to express the true intent and agreement of the parties thereto; The validity of the written agreement; or The existence of other terms agreed to by the parties or their successors in interest after the execution of the written agreement. (Rule 130, Sec. 9)
In sum, two (2) things must be established for parol evidence to be admitted: first, that the existence of any of the four (4) exceptions has been put in issue in a party’s pleading or has not been objected to by the adverse party; and second, that the parol evidence sought to be presented serves to form the basis of the conclusion proposed by the presenting party (Spouses Paras v. Kimwa Construction and Development, G.R. No. 171601, 8 April 2015).
The Parol Evidence Rule does not apply, and may not properly be invoked by either party to the litigation against the other, where at least one party to the suit is not a party or privy of a party to the written instrument in question and does not base a claim or assert a right originating in the instrument of the relation established thereby. Thus, if one of the parties is a complete stranger to the contract, he is not bound by the rule. (See Rule 130, Sec. 9, par. 1)
Parol evidence cannot be introduced to alter or modify the express terms of the “Kasunduan.” It is settled that the agreement or contract between the parties is the formal expression of the parties’ rights, duties, and obligations and is the best evidence of the parties’ intention. Thus, when the terms of an agreement have been reduced into 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 (Carganillo v. People, G.R. No. 182424, 22 September 2014).
Parol evidence is based upon the consideration that when the parties have reduced their agreement on a particular matter into writing, all their previous and contemporaneous agreements on the matter are merged therein. (De Guzman v. Calma, 100 Phil 1008).
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Parol Evidence Rule v. Best Evidence Rule
Parol Evidence Rule
Best Evidence Rule
Original document is available in court.
Original writing is not available and/or there is a dispute as to whether said writing is the original.
The rule prohibits the varying of the terms of a written agreement.
The rule prohibits the introduction of substitutionary evidence in lieu of the original document.
With the exception of wills, this rule applies only to documents which are contractual in nature (“written agreements”).
The rule applies to all kinds of writings.
This rule can be invoked only when the controversy is between the parties to the written agreement, their privies, or any party directly affected thereby, e.g. cestui que trust.
This rule can be invoked by any party to an action regardless of whether or not such party has participated in the writing involved.
Sec. 10. Sec. 11. Sec. 12. Sec. 13. Sec. 14. Sec. 15. Sec. 16. Sec. 17. Sec. 18. Sec. 19.
4. Interpretation of documents Interpretation of a writing according to its legal meaning Instrument construed so as to give effect to all provisions Interpretations according to intention; general and particular provisions Interpretation according to circumstances Peculiar signification of terms Written words control printed Experts and interpreters to be used in explaining certain writings Of two constructions, which preferred Construction in favor of natural right Interpretation according to usage C. Testimonial Evidence 1. Qualification of witnesses
Sec. 20. Witnesses; their qualifications
All persons who can perceive, and perceiving, can make their known perception to others, may be witnesses (Rule 130, Sec. 20). Religious or political belief, interest in the outcome of the case, or conviction of a crime unless otherwise provided by law, shall not be ground for disqualification (Rule 130, Sec. 20).
Competency vs. credibility of a witness A competent witness is one who is not excluded by law or the Rules of Court from being a witness. Competency is determined by the prevailing exclusionary rules of evidence. A credible witness is one who being competent to give evidence, is worthy of belief (Black’s Law Dictionary). It is well-settled that the determination of the credibility of the witnesses is correctly assigned to the trial court, which is in the best position to observe the demeanor and bodily movements of all the witnesses (People v. Banzuela, G.R. No. 202060, 11 December 2013). Sec. 21. Disqualification by reason of mental incapacity or immaturity
The following persons cannot be witnesses: (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 (Rule 130, Sec. 21)
Minority, alone, is not a sufficient ground for disqualification. Leeway should be given to witnesses who are minors, especially when they are relating past incidents of abuse (People v. Dominguez, G.R. No. 191065, 13 June 2011). Thus, a child may still be a witness as long as the following are shown: (a) capacity of observation; (b) capacity of recollection; and (c) capacity of communication (People v. Mendoza, G.R. No. 113791, 22 February 1996, 254 SCRA 18).
Mental retardation per se does not affect credibility (People v. Rosales, G.R. No. 197537, 24 July 2013).
Mental unsoundness of the witness at the time of the event testified to affects only his or her credibility. As long as the witness can convey ideas by words or signs and gives sufficiently intelligent answers to the questions propounded, she is a competent witness even if she is a mental retardate (People v. Maceda, G.R. No. 138805, 28 February 2001, 353 SCRA 228). Sec. 22. Disqualification by reason of marriage
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General Rule: During their marriage, spouses may not testify for or against the other without the consent of the affected spouse. (Rule 130, Sec. 22).
Exceptions: 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. (Rule 130, Sec. 22).
Requisites for spousal immunity (a) Valid marriage; and (b) Other spouse is a party to the action.
Waiver of spousal immunity The objection to the competency of the spouse must be made when he or she is first offered as a witness. Failure to make a timely objection is tantamount to waiver of spousal immunity (People v. Pansensoy, G.R. No. 140634. 12 September 2002).
Spousal immunity in cases where a spouse is jointly charged with other accused: The testimony of a wife of an accused, when timely objected to, is inadmissible against the latter. However, the same may be admitted as against other persons jointly charged in said case. (People v. Quidato, Jr. G.R. No. 140634, 12 September 2002).
Estranged spouses The disqualification does not apply in case of estranged spouses. Where 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 upon such harmony and tranquility fails. In such a case, identity of interests disappears and the consequent danger of perjury based on that identity is non-existent. Likewise, in such a situation, the security and confidences of private life, which the law aims at protecting, will be nothing but ideals, which through their absence, merely leave a void in the unhappy home (Alvarez v. Ramirez, G.R. No. 143439, 14 October 2005).
Sec. 23. Disqualification by reason of death or insanity of adverse party Dead man’s statute or survivor’s disqualification rule, where applicable cases against an executor or administrator or other representative of a deceased person upon a claim or demand against the estate of a deceased person; or against a person of unsound mind, upon a claim or demand against the estate of such person of unsound mind (Rule 130, Sec. 23).
When not applicable Ordinary witnesses, who are not the plaintiff, assignor of plaintiff, or person in whose behalf the case is prosecuted. (Bajenting v. Bañez, G.R. No. 166190, 20 September 2006). Officers and/or stockholders of a corporation are not disqualified from testifying, for or against a corporation which is a party to an action upon a claim or demand against the estate of a deceased person, as to any matter of fact occurring before the death of such deceased person. (Lichauco v. Atlantic Gulf, G.R. No. L-2016, 23 August 1949). When there is an imputation of fraud against the deceased which had been established beyond all doubt, the plaintiff is not barred from testifying to such fraud. The Dead Man’s Statute is not designed to shield wrongdoers and to render a plaintiff incompetent to testify to fraudulent transactions of the deceased (Ong Chua v. Carr, 53 Phil. 975; Go Chi Gun v. Co Cho, 96 Phil. 622). When the plaintiff is the executor, administrator or legal representative of the deceased, or the person of unsound mind, the defendant or defendants are free to testify against the plaintiff (Tongco v. Vianzon, 50 Phil. 698). When the survivor's testimony refers to a negative fact. (Mendezona v. Vda. de Goitia, 54 Phil. 557). When the survivor's testimony is favorable to the deceased (Icard v. Marasigan, 71 Phil. 419). Testimony on transactions with agent of deceased or incompetent party (Goni, et al., v. Court of Appeals, et al., 144 SCRA 231).
How waived By not objecting to plaintiff's testimony on prohibited matters (Marella v. Reyes, 12 Phil. 1). By cross-examining the plaintiff on prohibited matters. (Tongco v. Vianzon, 50 Phil. 698). By calling witnesses to testify on prohibited matters. (Arroyo v. Azur, 76 Phil. 493). When the plaintiff's deposition is taken by the representative of the estate or when counsel for the representative crossexamined the plaintiff as to matters occurring during the deceased's lifetime (Goni, et al., v. Court of Appeals, et al., 144 SCRA 231).
Dead man’s statute vs. marital disqualification rule Dead Man’s Statute
Marital Disqualification Rule
20 Not completely disqualified but is only prohibited from testifying on the matters therein specified.
Complete and absolute disqualification.
Applies only to a civil case or special proceeding over the estate of the deceased or insane person.
Applies to a civil or criminal case, subject to the two exceptions provided.
Sec. 24. Disqualification by reason of privileged communication (a) Husband and wife (Marital Privilege Rule) 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.
Applicability: Scope of protection extends during or after the marriage. (Rule 130, Sec. 24 [a]). Since the confidential nature of the communication is the basis of the privilege, the same cannot be invoked where it was not intended to be kept in confidence by the spouse who received the same, as in the case of a dying declaration of the husband to his wife as to who was his assailant.
Waiver of protection: (a) Failure to object to presentation; or (b) Through any conduct that may be construed as implied consent (Lacurom v. Jacoba, A.C. No. 5921, 10 March 2006).
Spousal immunity rule vs. marital privilege rule Spousal Immunity Rule
Marital Privilege Rule
Can be invoked only if one of the spouses is a party to the action.
Can be claimed whether or not the spouse is a party to the action.
Applies only if marriage is existing at the time the testimony is offered.
Can be claimed even after the marriage had been dissolved.
Constitutes a total prohibition against any testimony for or against the spouse of the witness.
Applies only to confidential communications between the spouses.
(b) Attorney-client privilege rule
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.
Requisites: (i) Relationship of lawyer and client; (ii) Privilege is invoked with respect to a confidential communication between them in the course of, or with the view of professional employment; (iii) Client has not given his consent to the disclosure of the communication. (Rule 130, Sec. 24[b]; Disini v. Sandiganbayan, G.R. No. 180564, 22 June 2010).
Persons covered: (i) The attorney; (ii) The 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 (Rule 130, Sec. 24[b]).
Waiver of protection The client may waive the protection of the Attorney-Client Privilege Rule. If the client waives the privilege, even his attorney cannot invoke it.
The Regala Doctrine General Rule: A lawyer may NOT invoke the privilege and refuse to divulge the name or identity of his client.
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Exceptions: (1) When a strong probability exists that revealing the name would implicate that person in the very same activity for which he sought the lawyer’s advice; (2) When disclosure would open the client to liability; (3) When the name would furnish the only link that would form the chain of testimony necessary to convict (Regala v. Sandiganbayan, G.R. No. 105938, 20 September 1996).
(c) 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 capacity, and which would blacken the reputation of the patient.
Requisites: (i) The physician is authorized to practice medicine, surgery or obstetrics; (ii) The information was acquired or the advice or treatment was given by him in his professional capacity for the purpose of treating and curing the patient (iii) The information, advice or treatment, if revealed, would blacken the reputation of the patient; (iv) The privilege is invoked in a civil case whether the patient is a party thereto or not (Rule 130, Sec. 24 [c]).
Meaning of “professional capacity” The physician may be considered to be acting in his professional capacity when he attends to the patient for curative, preventive, or palliative treatment. Thus, only disclosures which would have been made to the physician to enable him to "safely and efficaciously to treat his patient" are covered by the privilege. (Lim v. Court of Appeals, G.R. No. 91114, 25 September 1992).
Waiver of protection This privilege belongs to the patient, so that it is only he that can claim or waive it. It is waivable expressly or impliedly (See Penn. Mutual Life Ins. Co. v. Wiler, 100 Ind. 92). Example: Under Rule 28, the court may order a party to submit to a physical or mental examination, so long as the mental or physical condition is in dispute. The party examined may request a report of the examination. By doing so, he waives any privilege he may have in that action regarding the testimony of every other person who has examined him in respect of the same examination (Rule 28, Sec. 4). Information elicited during consultation with a physician in the presence of third parties removes such information from the mantle of the privilege (Lim v. Court of Appeals, G.R. No. 91114, 25 September 1992). What is protected is the tenor of the consultation. The number of times a patient consulted with his doctor is not privileged. (Lim v. Court of Appeals, supra).
(d) Minister/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. (e) State Secrets Rule 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. Public interest is paramount. The rule that a public officer cannot be examined as to communications made to him in official confidence does not apply when there is nothing to show that the public interest would suffer by the disclosure in question (Banco Filipino v. Monetary Board, 142 SCRA 523). (f)
Parental and Filial Privilege Rule No person may be compelled to testify against his parents, other direct ascendants, children or other direct descendants (Rule 130, Sec. 25). No descendant shall be compelled, in a criminal case, to testify against his parents and grandparents, except when such testimony is indispensable in a crime against the descendant or by one parent against the other (Family Code, Article 215).
(g) Newsman’s Privilege The publisher, editor or duly accredited reporter of any newspaper, magazine or periodical of general circulation cannot be compelled to reveal the source of any news report or information appearing in said publication which was related in confidence to him, unless the court or a House or committee of Congress finds that such revelation is demanded by the security of the State (See R.A. No. 53, as amended by R.A. No. 1477, the “Shield Law”). (h) Privilege under the Labor Code All information and statements made at conciliation proceedings shall be treated as privileged communications and shall not be used as evidence in the NLRC, and conciliators and similar officials shall not testify in any court or body regarding any matter taken up at the conciliation proceedings conducted by them (Labor Code, Art. 233). (i)
Privileged Information under the RA 10361 of the Kasambahay Law
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(j)
Prohibition Against Privileged Information. – All communication and information pertaining to the employer or members of the household shall be treated as privileged and confidential, and shall not be publicly disclosed by the domestic worker during and after employment. Such privileged information shall be inadmissible in evidence except when the suit involves the employer or any member of the household in a crime against persons, property, personal liberty and security, and chastity. (Kasambahay Law, Sec. 10)
Privilege under Alternative Dispute Resolution (ADR) laws
Mediation Information obtained through mediation shall be privileged and confidential (R.A. No. 9285, Sec. 9[a]). A party, a mediator, or a nonparty participant may refuse to disclose and may prevent any other person from disclosing a mediation communication (R.A. No. 9285, Sec. 9[b]). Confidential information obtained during mediation shall not be subject to discovery and shall be inadmissible in any adversarial proceeding, whether judicial or quasi-judicial. However, evidence or information that is otherwise admissible or subject to discovery does not become inadmissible or protected from discovery solely by reason of its use in a mediation (R.A. No. 9285, Sec. 9[b]). In such an adversarial proceeding, the following persons involved or previously involved in a mediation may not be compelled to disclose confidential information obtained during mediation: (1) the parties to the dispute; (2) the mediator; (3) the counsel for the parties; (4) the nonparty participants; (5) any persons hired or engaged in connection with the mediation as secretary, stenographer, clerk or assistant; and (6) any other person who obtains or possesses confidential information by reason of his/her profession (R.A. No. 9285, Sec. 9[c]).
Arbitration The arbitration proceedings, including the records, evidence and the arbitral award, shall be considered confidential and shall not be published except (1) with the consent of the parties, or (2) for the limited purpose of disclosing to the court of relevant documents in cases where resort to the court is allowed herein. Provided, however, that the court in which the action or the appeal is pending may issue a protective order to prevent or prohibit disclosure of documents or information containing secret processes, developments, research and other information where it is shown that the applicant shall be materially prejudiced by an authorized disclosure thereof (R.A. No. 9285, Sec. 23).
2. Testimonial privilege Sec. 25. Parental and filial privilege 3. Admissions and confessions (a) Res inter alios acta rule The maxim res inter alios acta alteri nocere non debet literally means “things done between strangers ought not to injure those who are not parties to them” (Black’s Law Dictionary, 5th ed., 1178).
Though some claim that partnerships and joint ventures are totally different animals, there are very few rules that differentiate one from the other; thus, joint ventures are deemed "akin" or similar to a partnership. In fact, in joint venture agreements, rules and legal incidents governing partnerships are applied. Obviously, as the intricate web of "ventures" entered into by and among petitioners and MBMI was executed to circumvent the legal prohibition against corporations entering into partnerships, then the relationship created should be deemed as "partnerships," and the laws on partnership should be applied. Thus, a joint venture agreement between and among corporations may be seen as similar to partnerships since the elements of partnership are present. Considering that the relationships found between petitioners and MBMI are considered to be partnerships, then the CA is justified in applying Sec. 29, Rule 130 of the Rules by stating that "by entering into a joint venture, MBMI have a joint interest" with Narra, Tesoro and McArthur (Narra Nickel Mining and Development Corp. v. Redmont Consolidated Mines Corp., G.R. No. 195580, 21 April 2014).
The res inter alios acta rule has two branches, to wit: i. The rule that the rights of a party cannot be prejudiced by an act, declaration, or omission of another, except as hereinafter provided (Rule 130, Sec. 128); and ii. The rule that the 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 similar thing at another time (Rule 132, Sec. 34).
(b) Admission by a party
Admission and confession, distinguished Admission
Confession
23 It is a statement of fact which does not involve an acknowledgement of guilt or liability.
It involves an acknowledgement of guilt or liability.
It may be express or tacit.
It must be express.
It may be made by third persons and, in certain cases, are admissible against a party.
It can be made only by the party himself and, in certain cases, are admissible against his coaccused.
Sec. 26. Admissions of a party
An admission is an act, declaration or omission of a party as to a relevant fact which may be given in evidence against him (Rule 130, Sec. 2).
The res inter alios acta rule under Section 28, Rule 130 of the Rules on Evidence, which states that the rights of a party cannot be prejudiced by an act, declaration, or omission of another, unless the admission is by a conspirator under the parameters of Section 30 of the same Rule. The foregoing rule constitutes a technical rule on evidence which should not be rigidly applied in the course of preliminary investigation proceedings (Reyes v. Ombudsman, G.R. Nos. 212593-94, 15 March 2016).
Sec. 27. Offer of compromise not admissible Sec. 28. Admission by third party
General rule: The rights of a party CANNOT be prejudiced by an act, declaration, or omission of another (Rule 130, Sec. 28). *This is also known as the first branch of the Res Inter Alios Acta Rule (from “res inter alios acta alteri nocere non debet”).
Exceptions: (a.k.a. “vicarious admissions”) (a) Admissions by partner (Rule 130, Sec. 29); (b) Admissions by agent or one who has a joint-interest with the party (Rule 130, Sec. 29); (c) Admission of co-conspirator (Rule 130, Sec. 30); (d) Admission of privy of the party (Rule 130, Sec. 30). Sec. 29. Admission by co-partner or agent
The act or declaration of a partner or agent of the party may be given in evidence against such party under the following requirements: (e) That the partnership, agency or joint interest is established by evidence other than the act or declaration; (f) That the act/declaration must have been within the scope of the partnership, etc; (g) Such act/declaration must have been made during the existence of the partnership, etc (Rule 130, Sec. 29).
Sec. 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: (h) The conspiracy is shown by evidence aliunde; (i) The admission was made during the existence of the conspiracy; and (j) The admission relates to the conspiracy itself. (Rule 130, Sec. 30; Tamargo v. Antiporda, G.R. No. 177727, 19 January 2010).
This rule applies only to extra-judicial acts or declaration of a co-conspirator, but NOT to testimony given on the stand at the trial, where the defendant has the opportunity to cross-examine the declarant. And while the testimony of accomplices or confederates in crime is always subject to grave suspicion, "coming as it does from a polluted source," and should be received with great caution and doubtingly examined, it is nevertheless admissible and competent (People v. Serrano, G.R. No. L-7973, 27 April 1959). Sec. 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.
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Requisites: (a) There must be a relation of privity between the party and the declarant; (b) The admission was made by the declarant, as predecessor in interest, while holding title to the property; and (c) The admission is in relation to said property (Rule 130, Sec. 31).
Privity in estate may have arisen by: (1) succession; (2) by acts mortis causa; or (3) by acts inter vivos. Sec. 32. Admission by silence
Requisites -- Any act or declaration made in the presence and within the 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, may be given in evidence against him, under the following requisites: (a) He must have heard or observed the act or declaration of the other person; (b) He must have had the opportunity to deny it; (c) He must have understood the statement. (d) He must have an interest to object as he would naturally have done if the statement was not true; (e) The facts are within his knowledge; and (f) he fact admitted or the inference to be drawn from his silence is material to the issue. (Rule 130, Sec. 32; People v. Ciobal, G.R. No. 86220, 20 April 1990; People v. Ranario, 49 Phil. 220)
When not applicable Accused’s refusal to be a witness during trial (Art. III, Sec. 17, 1987 Constitution). Silence during official investigation (Art. III, Sec. 12, 1987 Constitution; U. S. v. De la Cruz, 12 Phil., 87). Where the party had a justifiable reason to remain silent [e.g. acting on advice of counsel]. (People v. Fong, G.R. No. L-7615, 14 March 1956).
When applicable to statements made in writing The rule on admission by silence applies to adverse statements in writing if the party was carrying on a mutual correspondence with the declarant. However, if there was no such mutual correspondence, the rule is relaxed on the theory that while the party would have immediately reacted by a denial if the statements were orally made in his presence, such prompt response can generally not be expected if the party still has to resort to a written reply (Villanueva v. Balaguer, G.R. No. 180197, 23 June 2009).
Voluntary re-enactment Voluntary participation in the re-enactment of the crime conducted by police is considered tacit admission of complicity. In such cases, the accused actually committed positive acts without protest or denial when he was free to refuse. Had he not actually participated in the commission of the offense for which he is charged, he would have protested being made to take part in the reenactment thereof (People v. Fong, G.R. No. L-7615, 14 March 1956). Sec. 33. Confession
The declaration of an accused acknowledging his guilt of the offense charged, or of any offense necessarily included therein, may be given in evidence against him (Rule 130, Sec. 33).
Judicial confession - one made before a court in which the case is pending and in the course of legal proceedings therein; can sustain conviction by itself. requisites: (a) It must be a categorical acknowledgement of guilt; (b) It must be made by an accused in a criminal case; and (c) It is without any exculpatory statement or explanation.
Extrajudicial confession -- one made in any other place or occasion and cannot sustain a conviction unless corroborated by evidence of the corpus delicti. (Rule 133, Sec. 3). Requisites: (a) It must be voluntary; (b) It must be made with the assistance of a competent and independent counsel; (c) It must be express; and (d) It must be in writing (People v. Domantay, G.R. No. 130612, 11 May 1999).
Corpus delicti means the substance of the crime; it is the fact that a crime has actually been committed (People v. De Leon, G.R. No. 180762, 4 March 2009). In arson, the corpus delicti is generally satisfied by proof of the bare occurrence of the fire, e.g., the charred remains of a house burned down and of its having been intentionally caused. In murder or homicide, the corpus delicti is the fact of death (People v. Garcia, 99 Phil. 381), which may be proved even circumstantially (People v. Sasota, 91 Phil. 111; People v. Moro Ansang, 93 Phil. 44). In robbery or theft, the fact of loss (People v. Niem, 75 Phil. 668). In an affray, the fact that pistol shots were heard and a bystander was killed by one of the shots constitute evidence of corpus delicti, which is the violent death of a person, whether feloniously caused or not (People v. Nocum, 77 Phil. 1018)
Extrajudicial confession is not binding upon third parties
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An extrajudicial confession is binding only on the confessant, is not admissible against his or her co-accused, and is considered as hearsay against them. The reason for this rule is that on a principle of good faith and mutual convenience, a man’s own acts are binding upon himself, and are evidence against him. So are his conduct and declarations. Yet it would not only be rightly inconvenient, but also manifestly unjust, that a man should be bound by the acts of mere unauthorized stranger (Tamargo v. Awingan, G.R. No. 177727, 19 January 2010).
Extrajudicial confessions, when admissible against co-accused While the general rule is that an extra-judicial confession of an accused is binding only upon himself and is not admissible against his co-accused, it has been held that such a confession is admissible against a co-accused where the confession is used as circumstantial evidence to show the probability of participation by the co-conspirator (People v. Condemna, L-22426, 29 May 1968), and where the co-conspirator's confession is corroborated by other evidence (People v. Victor, G.R. No. 75154-55, 6 February 1990).
Extrajudicial confession not admissible when confessant was not assisted by counsel An extrajudicial confession executed without the assistance of independent and competent counsel is inadmissible in evidence. (People v. Velarde, G.R. No. 139333, 18 July 2002). A municipal mayor cannot be considered as a competent and independent counsel qualified to assist a person under custodial investigation (People v. Velarde, supra).
Extrajudicial confession vs. res gestae Where the verbal extrajudicial confession was made without counsel, but it was spontaneously made by the accused immediately after the assault, the same is admissible, not under the confession rule, but as part of the res gestae (People v. Tampus, G.R. No. L44690, 28 March 1980).
Statements during press-conference The constitutional procedures on custodial investigation do not apply to a spontaneous statement, not elicited through questioning by the authorities, but given in an ordinary manner whereby accused orally admitted having committed a crime. The rights under Sec. 12 are guaranteed to preclude the slightest use of coercion by the State as would lead the accused to admit something false, not to prevent him from freely and voluntarily telling the truth. (People v. Mantung, G.R. No. 130372, 20 July 1999). 4.
Previous conduct as evidence
Sec. 34. 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 similar thing at another time(Rule 130, Sec. 34). However, such evidence may be received to prove a specific intent or knowledge; identity, plan, system, scheme, habit, custom or usage, and the like (Rule 130, Sec. 34).
Sec. 35. Unaccepted offer 5.
Testimonial knowledge
Sec. 36. Testimony generally confined to personal knowledge; hearsay excluded
Hearsay evidence - any evidence, whether oral or documentary, whose probative value is based not on personal knowledge of the witness but on the knowledge of some other person not on the witness stand. If a party does not object, the hearsay evidence is admissible. Illustration: The repeated failure of the party to cross-examine the witness is an implied waiver of such right and the testimony of the said witness who died thereafter should not be excluded from the record (Savory Luncheonette v. Lakas ng Manggagawang Pilipino, G.R. No. L-38964, 31 January 31). But hearsay evidence not objected to is admissible, it has no probative value. Hearsay evidence whether objected to even if or not has no probative value (People v. Parungao, G.R. No. 125812, 28 November 1996). The real basis for the exclusion of hearsay evidence lies in the fact that hearsay testimony is not subject to the tests which can ordinarily be applied for the ascertainment of the truth of testimony, since the declarant is not present and available for crossexamination (Mollaneda v. Umacob, G.R. No. 140128, 6 June 2001). The reason for the exclusion of hearsay evidence is that the party against whom the hearsay testimony is presented is deprived of the right or opportunity to cross-examine the person to whom the statements are attributed. Moreover, the court is without opportunity to test the credibility of hearsay statements by observing the demeanor of the person who made them. In the instant case, the declarant, AAA herself, was sworn as a witness to the fact testified to by her mother. Accused-appellant's counsel even cross-examined AAA. Moreover, the trial court had the opportunity to observe AAA's manner of testifying. Hence, the testimony of AAA's mother on the incident related to her by her daughter cannot be disregarded as hearsay evidence. (People v. Padit, G.R. No. 202978, 1 February 2016) Probable cause can be established with hearsay evidence, as long as there is substantial basis for crediting the hearsay. Hearsay evidence is admissible in determining probable cause in a preliminary investigation because such investigation is merely preliminary, and does not finally adjudicate rights and obligations of parties. However, in administrative cases, where rights and obligations are finally adjudicated, what is required is "substantial evidence" which cannot rest entirely or even partially on hearsay evidence. Substantial basis is not the same as substantial evidence because substantial evidence excludes hearsay evidence while substantial basis can include hearsay evidence. (Estrada v. Ombudsman, G.R. Nos. 212140-41, 21 January 2015).
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Two concepts of hearsay evidence: (a) Second hand information (not derived from personal knowledge of witness); and (b) Testimony by a witness derived from his personal knowledge but the adverse party is not given opportunity to crossexamine.
Principle of independently relevant statements The doctrine on independently relevant statements holds that conversations communicated to a witness by a third person may be admitted as proof that, regardless of their truth or falsity, they were actually made. Evidence as to the making of such statements is not secondary but primary, for in itself it (a) constitutes a fact in issue or (b) is circumstantially relevant to the existence of such fact (Republic v. Heirs of Alejega, G.R. No. 146030, 3 December 2002). 6.
Exceptions to the hearsay rule
Sec. 37. Dying Declaration
Dying declaration is an ante mortem statement or statement in articulo mortis. Requisites: (a) That death is imminent and the declarant is conscious of that fact; (b) That the declaration refers to the cause and the surrounding circumstances of such death; (c) That the declaration relates to facts which the victim is competent to testify to; (d) That the declaration is offered in a case wherein the declarant’s death is the subject of the inquiry (People v. Serenas, G.R. No. 188124, 29 June 2010).
It is the belief of impending death and not the rapid succession of death that renders the dying declaration admissible (People v. Bautista, G.R. No. 111149, 5 September 1997).
From the records, no questions relative to the second requisite was propounded to Januario. It does not appear that the declarant was under the consciousness of his impending death when he made the statements. The rule is that, in order to make a dying declaration admissible, a fixed belief in inevitable and imminent death must be entered by the declarant. It is the belief in impending death and not the rapid succession of death in point of fact that renders a dying declaration admissible. The test is whether the declarant has abandoned all hopes of survival and looked on death as certainly impending. Thus, the utterances made by Januario could not be considered as a dying declaration (People of the Philippines v. Gatarin, G.R. No. 198022, 7 April 2014).
Victim need not state that he has lost all hope of recovery -- It is sufficient that circumstances are such as to inevitably lead to the conclusion that at the time the declaration was made, the declarant would not expect to survive the injury from which he actually died. The degree and seriousness of the wounds and the fact that death supervened thereafter constitute substantial evidence of the victim's consciousness of his impending death (People v. Tanaman, et al., G.R. No. 71768, 28 July 1987).
Mere gesture of a dying woman inconclusive -- The gesture of a dying woman in pointing to a direction, when asked for the identity of her assailant, is too vague to be given such probative value in determining the culpability of the accused (People v. Ola, G.R. No. L-47147, 3 July 1987). Sec. 38. Declaration against interest
Requisites: (a) The declaration is made by: (i) A person deceased; or (ii) A person who is unable to testify (i.e. in foreign country or with physical/mental impairments) (b) The declaration is against the interest of the declarant: (c) 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. ((Rule 130, Sec. 38; Fuentes v. Court of Appeals, G.R. No. 111692, 9 February 1996).
The theory under which declarations against interest are received in evidence notwithstanding they are hearsay is that the necessity of the occasion renders the reception of such evidence advisable and, further that the reliability of such declaration asserts facts which are against his own pecuniary or moral interest (Parel v. Prudencio, G.R. No. 146556, 19 April 2006).
Admissions v. declaration against interest Admissions It is made by a party to a litigation or by one in privity with or identified in legal interest with such party (Unchuan v. Lozada, G.R. No. 172671, 16 April 2009, 585 SCRA 421, 435).
Declaration Against Interest It is made by a person who is neither a party nor in privity with a party to the suit (Lazaro v. Agustin, G.R. No. 152364, 15 April 2010).
27 It is admissible whether or not the declarant is available as a witness. (Unchuan v. Lozada, supra)
It is admissible only when the declarant is unavailable as a witness. (Lazaro v. Agustin, supra).
It is not necessarily against the interest of the admitter.
The declaration must necessarily be against declarant’s interest.
Sec. 39. Act or declaration about pedigree
Requisites: (a) Witness testifying as to reputation or tradition must be a member, by consanguinity or affinity, of the same family as the subject; (b) Such tradition or reputation must have existed in that family ante litem motam. (Rule 130, Sec. 40; People v. Soriano, G.R. No. 154278, 27 December 2002). Sec. 40. Family reputation or tradition regarding pedigree
Requisites: (a) Witness testifying as to reputation or tradition must be a member, by consanguinity or affinity, of the same family as the subject; (b) Such tradition or reputation must have existed in that family ante litem motam. (Rule 130, Sec. 40; People v. Soriano, G.R. No. 154278, 27 December 2002).
Sec. 41. Common reputation Common reputation refers to general reputation; definite opinion of the community in which the fact to be proved is known or exists. Requisites: (a) The subject of subject of inquiry must be facts of public or general interest more than 30 years old, respecting marriage or moral character; (b) The evidence must refer to facts ante litem motam; (c) The facts may be established by: Testimonial evidence of competent witness; Monuments and inscription in public places; or Documents containing statements of reputation.
Sec. 42. Part of the res gestae Res gestae is a Latin phrase which literally means "things done.“ (Capila v. People, G.R. No. 146161, 17 July 2006). Two types: (a) Spontaneous statements; and The rule in res gestae applies when the declarant himself did not testify and the testimony of the witness who heard the declarant complies with the following requisites: (i) the principal act, the res gestae, is a startling occurrence; (ii) the statements were made before the declarant had time to contrive or devise; and (iii) the statements concerned the occurrence in question and its immediately attending circumstances (prior or subsequent) (Rule 130, Sec. 42; Maturillas v. People, G.R. No. 163217, 18 April 2006).
A sudden attack on a group peacefully eating lunch on a school campus is a startling occurrence. Considering that the statements of the bystanders were made immediately after the startling occurrence, they are, in fact, admissible as evidence given in res gestae (People v. Feliciano, G.R. No. 196735, 5 May 2014)
(b) Contemporaneous statements or verbal acts. (Rule 130, Sec. 42) Requisites: (a) The principal act to be characterized must be equivocal; (b) The equivocal act must be relevant to the issue; (c) The verbal act must be contemporaneous with the equivocal act; (d) The verbal act must give legal significance to the equivocal act (Talidano v. Falcom Maritime & Allied Service, Inc. G.R. No. 172031, 14 July 2008).
The res gestae exception to the hearsay rule provides that the declarations must have been "voluntarily and spontaneously made so nearly contemporaneous as to be in the presence of the transaction which they illustrate and explain, and were made under such circumstances as necessarily to exclude the idea of design or deliberation”(People v. Estibal, G.R. No. 208749, 26 November 2014).
Sec. 43. Entries in the course of business
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Requisites: (a) The person who made the entry must be dead or unable to testify; (b) The entries were made at or near the time of the transaction to which they refer; (c) The entrant was in a position to know the facts stated in the entries; (d) The entries were made in his professional capacity or in the performance of a duty, whether legal, contractual, moral or religious; (e) The entries were made in the ordinary or regular course of business or duty (Rule 130, Sec. 43; Jose, Jr. v Michaelmar Phils., Inc., et al., G.R. No. 169606, 27 November 2009).
Entries in the course of business are accorded unusual reliability because their regularity and continuity are calculated to discipline record keepers in the habit of precision. If the entries are financial, the records are routinely balanced and audited. In actual experience, the whole of the business world function in reliance of such kind of records (LBP v. Monet’s Export and Manufacturing Corp., G.R. No. 184971, 19 April 2010). Sec. 44. Entries in official records
Requisites: (a) Entries were made by: (i) a public officer in the performance of his duties; or (ii) by a person in the performance of a duty specially enjoined by law; (b) The entrant had personal knowledge of the facts stated by him or such facts were acquired by him from reports made by persons under a legal duty to submit the same; and (c) Such entries were duly entered in a regular manner in the official records (Alvarez v. PICOP Resources, G.R. No. 162243, 3 December 2009).
Entrant need not be presented -- The presentation of the records themselves would, therefore, have been admissible as an exception to the hearsay rule even if the public officer/s who prepared them was/were not presented in court, provided the above requisites could be adequately proven (Alvarez v. PICOP Resources, supra; Africa v. Caltex, 123 Phil. 272).
Police records of vehicular accidents -- The presentation of the police report itself is admissible as an exception to the hearsay rule even if the police investigator who prepared it was not presented in court, as long as the requisites under Rule 130, Sec. 44 could be adequately proved (Malayan Insurance Co., Inc. v. Alberto, G.R. No. 194320, 1 February 2012). Sec. 45. Commercial lists and the like
A document is a commercial list if: (a) it is a statement of matters of interest to persons engaged in an occupation; (b) such statement is contained in a list, register, periodical or other published compilation; (c) said compilation is published for the use of persons engaged in that occupation, and (d) it is generally used and relied upon by persons in the same occupation (Rule 130, Sec. 45; PNOC Shipping v. Court of Appeals, G.R. No. 107518, 8 October 1998). Sec. 46. Learned treatises
Requisites: (a) The court takes judicial judicial notice of published treatise, periodical or pamphlet on a subject of history, law, science or art; or (b) 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 an expert in the subject (Rule 130, Sec. 46).
Sec. 47. Testimony or deposition at a former proceeding Requisites: (a) Witness is dead or unable to testify; (b) His testimony or deposition was given in a former case or proceeding, judicial or administrative, between the same parties or those representing the same interests; (c) The former case involved the same subject as that in the present case, although on different causes of action; (d) The issue testified to by the witness in the former trial is the same issue involved in the present case; and (e) The adverse party had an opportunity to cross-examine the witness in the former case.
Meaning of “unable to testify” -- The phrase "unable to testify" refers to a physical inability to appear at the witness stand and to give a testimony. Hence notwithstanding the deletion of the phrase "out of the Philippines," which previously appeared in Section 47, Rule 130 of the Rules of Court, absence from jurisdiction may still constitute inability to testify under the same rule (Republic v. Sandiganbayan, G.R. No. 152375, 16 December 2011).
Meaning of “same parties” -- To render the testimony of a witness admissible at a later trial or action, the parties to the first proceeding must be the same as the parties to the later proceeding. Physical identity, however, is not required; substantial identity or identity of interests suffices, as where the subsequent proceeding is between persons who represent the parties to
29 the prior proceeding by privity in law, in blood, or in estate. The term "privity" denotes mutual or successive relationships to the same rights of property (Republic v. Sandiganbayan, supra).
7.
Opinion rule
Sec. 48. General rule
The opinion of a witness is NOT admissible (Rule 130, Sec. 48). Exceptions: (a) Opinion of expert witness; (b) Opinion of ordinary witness.
Sec. 49. Opinion of expert witness
The opinion of a witness on a matter requiring special knowledge, skill, experience or training which he is shown to possess, may be received in evidence. (Rule 130, Sec. 48).
Courts are not bound by expert’s testimony Section 49, Rule 130 of the Revised Rules of Court states that the opinion of a witness on a matter requiring special knowledge, skill, experience or training, which he is shown to possess, may be received in evidence. The use of the word "may" signifies that the use of opinion of an expert witness is permissive and not mandatory on the part of the courts. Allowing the testimony does not mean, too, that courts are bound by the testimony of the expert witness. The testimony of an expert witness must be construed to have been presented not to sway the court in favor of any of the parties, but to assist the court in the determination of the issue before it, and is for the court to adopt or not to adopt depending on its appreciation of the attendant facts and the applicable law (Tabao v. People, G.R. No. 187246, 20 July 2011).
Sec. 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; (c) the mental sanity of a person with whom he is sufficiently acquainted; and (d) his impressions of the emotion, behavior, condition or appearance of a person (Rule 130, Sec. 48).
Criteria in Qualifying as an Expert Witness- In our jurisdiction, the criterion remains to be the expert witness' special knowledge experience and practical training that qualify him/her to explain highly technical medical matters to the Court (Casumpang, et al. v. Cortejo, G.R. No. 171127, 11 March 2015).
Probative value of a handwriting expert witness’ testimony- The opinion of handwriting experts are not necessarily binding upon the court, the expert’s function being to place before the court data upon which the court can form its own opinion. This principle holds true especially when the question involved is mere handwriting similarity or dissimilarity, which can be determined by a visual comparison of specimens of the questioned signatures with those of the currently existing ones. A finding of forgery does not depend entirely on the testimonies of handwriting experts, because the judge must conduct an independent examination of the questioned signature in order to arrive at a reasonable conclusion as to its authenticity (Garbo v. Spouses Garabato, G.R. No. 200013, 14 January 2015).
Expert witness not necessary if the res ipsa loquitur doctrine is applicable- Where the application of the principle of res ipsa loquitur is warranted, an expert testimony may be dispensed with in medical negligence cases. Resort to the doctrine of res ipsa loquitur as an exception to the requirement of an expert testimony in medical negligence cases may be availed of if the following essential requisites are satisfied: (1) the accident was of a kind that does not ordinarily occur unless someone is negligent; (2) the instrumentality or agency that caused the injury was under the exclusive control of the person charged; and (3) the injury suffered must not have been due to any voluntary action or contribution of the person injured (Rosit v. Davao Doctors Hospital, et al., G.R. No. 210445, 7 December 2015).
Hot Tub Hearing. “A method used for giving concurrent expert evidence in civil cases. In a “hot tub” hearing, the judge can hear the experts discussing the same issue at the same time to explain each of their points in a discussion with a professional colleague. The objective is to achieve greater efficiency and expedition, by reduced emphasis on cross examination and increased emhphasis on professional dialogue, and swift identification of the critical areas of disagreement between the experts.” (International Service for the Acquisition of Agri-BioTech Applications, Inc., v. Greenpeace Southeast Asia- Philippines, et al., G.R. No. 209271, 8 December 2015) 8.
Character evidence
Sec. 51. Character evidence not generally admissible; exceptions
General rule: Character evidence is not admissible (Rule 130, Sec. 51). Exceptions:
30 (a) Criminal cases Accused – may prove his good moral character pertinent to the moral trait in the offense charged. Prosecution – may present character evidence pertaining to accused’s bad moral character pertinent to the moral trait involved in the offense charged only in rebuttal. Offended party – 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. (b) Civil cases Evidence of the moral character of a party in a civil case is admissible only when pertinent to the issue of character involved in the case. Evidence of the good character of a witness is not admissible until such character has been impeached (Rule 130, Sec. 51).
Rape shield rule -- In prosecutions for rape, evidence of complainant's past sexual conduct, opinion thereof or of his/her reputation shall not be admitted unless, and only to the extent that the court finds, that such evidence is material and relevant to the case (R.A. No. 8505, Sec. 6).
Other Exclusionary Rules 1. The Bill of Rights “The Constitution guarantees the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures. Any evidence obtained in violation of said right shall be inadmissible for any purpose in any proceeding. Indeed, while the power to search and seize may at times be necessary to the public welfare, still it must be exercised and the law implemented without contravening the constitutional rights of the citizens, for the enforcement of no statute is of sufficient importance to justify indifference to the basic principles of government.“(Valdez v. People, G.R. No. 170180, 23 November 2007) 2. Bank Secrecy Law Section 2 of RA 1405 or the Bank Secrecy law institutionalized the policy of encouraging deposits to banks by characterizing as absolutely confidential in general all deposits of whatever nature with banks and other financial institutions in the country. ( It declares: Section 2. All deposits of whatever nature with banks or banking institutions in the Philippines including investments in bonds issued by the Government of the Philippines, its political subdivisions and its instrumentalities, are hereby considered as of an absolutely confidential nature and may not be examined, inquired or looked into by any person, government official, bureau or office, except upon written permission of the depositor, or in cases of impeachment, or upon order of a competent court in cases of bribery or dereliction of duty of public officials, or in cases where the money deposited or invested is the subject matter of the litigation. (BSB Group, Inc. v. Go, GR No. 168644, 16 February 2010) 3. Anti-Wiretapping Act R.A. No. 4200 or the Anti- Wiretapping Act states: Section 1. It shall be unlawful for any person, not being authorized by all the parties to any private communication or spoken word, to tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a dictaphone or dictagraph or dictaphone or walkie-talkie or tape recorder, or however otherwise described: It shall also be unlawful for any person, be he a participant or not in the act or acts penalized in the next preceding sentence, to knowingly possess any tape record, wire record, disc record, or any other such record, or copies thereof, of any communication or spoken word secured either before or after the effective date of this Act in the manner prohibited by this law; or to replay the same for any other person or persons; or to communicate the contents thereof, either verbally or in writing, or to furnish transcriptions thereof, whether complete or partial, to any other person: Provided, That the use of such record or any copies thereof as evidence in any civil, criminal investigation or trial of offenses mentioned in section 3 hereof, shall not be covered by this prohibition. Section 4. Any communication or spoken word, or the existence, contents, substance, purport, effect, or meaning of the same or any part thereof, or any information therein contained obtained or secured by any person in violation of the preceding sections of this Act shall not be admissible in evidence in any judicial, quasi-judicial, legislative or administrative hearing or investigation.
4. The National Internal Revenue Code
31 Section 201 of RA 8424 or the National Internal Revenue Code states: Effect of Failure to Stamp Taxable Document. - An instrument, document or paper which is required by law to be stamped and which has been signed, issued, accepted or transferred without being duly stamped, shall not be recorded, nor shall it or any copy thereof or any record of transfer of the same be admitted or used in evidence in any court until the requisite stamp or stamps are affixed thereto and cancelled.
C.
Burden of Proof and What Need Not be Proved
Rule 131. Burden of Proof and Presumptions
Presumption is an inference of an existence or non-existence of a fact which courts are permitted to draw from the proof of other facts.
Presumption compared with judicial notice and admissions: Presumption - proponent still has to introduce evidence of the basis of the presumption. Judicial notice and judicial admission - as a rule, proponent does not have to introduce evidence.
Classification of presumptions
1. 2.
Presumption of Law
Presumption of Fact
Praesumptiones Juris
Praesumptiones hominis
A deduction which the law expressly directs to be made from particular facts.
A deduction which reason draws from facts proved without an express direction from the law to that effect.
Based on rules, laws, and jurisprudence.
Discretionary.
Types: 1. Conclusive (juris et de jure) 2. Disputable (juris tantum or prima facie)
Sec. 1. Burden of proof
Sec. 2. Conclusive presumptions Conclusive presumptions are not permitted to be overcome by any proof to the contrary. 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 (Rule 131, Sec. 2 [a]). 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. (Rule 131, Sec. 2 [b]). Sec. 3. Disputable presumptions
Disputable presumptions are those which the law permits to be overcome or contradicted.
Willful suppression of evidence under par. (e) Requisites: (a) The evidence is material. (b) Party had the opportunity to produce the same. (c) Said evidence is available only to said party.
Presumption does not apply: (a) If the evidence is at the disposal of both parties. (People v. Ducay, 225 SCRA 1). (b) The suppression was not wilful. (c) The suppressed evidence is merely corroborative or cumulative. (d) The suppression is an exercise of a privilege (People v. Navaja, 220 SCRA 624).
Presumption of authorship of a recent lawful act (par.1) The rationale for this presumption is similar to the rationale for the presumption of authorship of falsification, which states that in the absence of satisfactory explanation, one found in possession of and who used a forged document is the forger of said document. If a person had in his possession a falsified document and he made use of it, taking advantage of it and profiting thereby, the clear presumption is that he is the material author of the falsification. (Lastrilla v. Granada, G.R. No. 160257, 31 January 2006).
32 Sec. 4. No presumption of legitimacy or illegitimacy Rule 129. What Need Not Be Proved Sec. 1. Judicial notice, when mandatory
The following need not be proved: (a) Facts which a court shall or may take judicial notice of (Rule 129, Secs. 1 and 2); (b) Judicial admissions (Rule 129, Sec. 4); (c) Conclusive presumptions; (d) Disputable presumptions not disputed; (e) Res Ipsa Loquitur (Latin for "the thing or the transaction speaks for itself.“)
Court is compelled to take judicial notice; takes place at the court's own initiative. The court shall take mandatory judicial notice of the following (Rule 129, Sec. 1): Existence and territorial extent of states; Their political history; Forms of government; Symbols of nationality; Law of nations; Admiralty and maritime courts of the world and their seals; Political constitution and history of the Philippines. Official acts of the legislative, executive, and judicial departments of the Philippines; Laws of nature; Measure of time; Geographical divisions.
Example of Mandatory Judicial Notice:
“Section 1, Rule 129 of the Rules of Court mandates that a court shall take judicial notice, without the introduction of evidence, of the official acts of the legislative, executive, and judicial departments of the Philippines. Thus, as both Congress and this Court have repeatedly and consistently validated and recognized UP's indefeasible title over its landholdings, the RTC and the Court of Appeals clearly erred when it faulted the Republic and UP for presenting certified true copies of its titles signed by its records custodian instead of either the duplicate originals or the certified true copies issued by the Register- of Deeds of Quezon City. Indeed, the RTC and the CA should have taken judicial notice of UP's title over its landholdings, without need of any other evidence.” (Republic v. Rosario, GR No. 186635, 27 January, 2016) Sec. 2. Judicial notice, when discretionary
Court may take judicial notice of matters which are of public knowledge, or are capable of unquestionable demonstration, or ought to be known to judges because of their judicial functions. at the court's initiative, or on request of a party; requires a hearing and presentation of evidence.
Judicial notice is discretionary in the following: Matters of public knowledge; Matters capable of unquestionable demonstration; Matters which ought to be known to judges because of their judicial functions.
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. Examples of matters of public knowledge: Giving of tips, especially in a first rate hotel, is an accepted practice which the Court can take judicial notice of (PAL v. CA, 257 SCRA 33, 1997). The current practice among major establishments to accept payment by means of credit cards in lieu of cash (Mandarin Villa v. CA, 257 SCRA 538). Scientific findings that drug abuse can damage the mental faculties of the use. (Bughaw, Jr. v. Treasure Isle Industrial Corporation, G.R. No. 169606, November 27, 2009). Sec. 4. Judicial admissions
Judicial admission is an admission, verbal or written, made by a party in the course of the proceedings in the same case, does not require proof. (Rule 129, Sec. 4).
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The admission may be contradicted only by showing that it was made through palpable mistake or that no such admission was made. (Rule 129, Sec. 4).
Judicial admissions may be made in: Pleadings filed by the parties; or During the course of the trial, either by verbal or written manifestations or stipulations.
A judicial admission must be made in the same case in which it is offered. If made in another case or in another court, it must be proven as in any other fact, but entitled greater weight. This is admissible unless: Made only for purposes of the first case; Withdrawn with the permission of the court; and Court deems it proper to relieve the party.
Implied admissions of allegations of usury and in actionable documents if not specifically denied under oath (Rule 8, Secs. 8 and 11).
Admissions during pre-trial in civil and criminal cases. (N.B.: In criminal cases the admission must be reduced in writing and signed by accused and counsel [Rule 118, Sec. 4]).
Admissions in superseded pleadings may be received in evidence against the pleader. (Rule 10, Sec. 8). These are treated as extrajudicial admissions which must be proven as fact.
Implied admissions in the modes of discovery (Depositions; Interrogatories – Rule 23; Failure to specifically deny under oath within 15 days a Request for Admission in a pending case – Rule 26).
Plea of guilt in criminal case (N.B.: A withdrawn plea of guilt is inadmissible, unlike in civil cases where a withdrawn judicial admission is considered an extrajudicial admission).
Admissions by counsel are generally conclusive upon a client absent any gross negligence which deprives counsel of due process of law or there is outright deprivation of property or liberty (Cuenco v. Talisay Tourist Sports Complex, G.R. No. 174154, 17 October 2008).
Effect of judicial admissions A matter admitted need no longer be proved; The matter admitted cannot be contradicted because they are conclusive upon the party making it.
How judicial admissions may be contradicted: Upon a showing that the admission was made through palpable mistake; and When it is shown that no such admission was made.
Foreign laws -- Foreign laws may be taken judicial notice in the following instances: When the foreign law refers to the law of nations. (Rule 129, Sec. 1). When the court takes judicial notice of a published treatise, periodical or pamphlet on a subject of law as a learned treatise. (Rule 130, Sec. 46). When the foreign statute is accepted by the Philippine government (Republic v. Guanzon, 61 SCRA 360). When a foreign judgment containing foreign law is recognized for enforcement. (Rule 39, Sec. 48). If the foreign law refers to common law doctrines and rules from which many of our laws were derived. (Alzua v. Johnson, 21 Phil. 308).
Doctrine of processual presumption - Under this doctrine, the foreign law is considered the same as the law of the forum. It arises if the foreign law, though properly applicable is either not alleged or if alleged is not duly proved before a competent court.
To prove foreign law, the party invoking it must present a copy thereof and comply with Rules 132, Sections 24 and 25 of the Rules of Court.
Law of Nations Under the 1987 Constitution, the Philippines adopts the generally accepted principles of international law as part of the law of the land (1987 Constitution, Article II, Section 2). Being part of the law of the land, they are therefore technically in the nature of local laws and thus subject to mandatory judicial notice.
Municipal ordinances Generally, courts are required to take judicial notice of laws. However, courts are not mandated to take judicial notice of municipal ordinances unless the charter of the concerned city provides for such judicial notice. (City of Manila v. Garcia, 1967). But inferior courts sitting in the respective municipalities or cities are mandated to take judicial notice thereof. The reason is that violations of the ordinances are usually vested to the inferior courts exclusively in the exercise of their original jurisdiction.
If an inferior court took judicial notice of a fact and there was an appeal, such court taking the appeal should likewise take judicial notice. (U.S. v. Blanco, 37 Phil. 126).
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Court Orders Courts are required to take judicial notice of the decisions of appellate courts but not of the decisions of coordinate courts. In fact, a court may not take judicial notice of the decision or the facts involved in another case tried by the same court itself unless the parties introduce the same in evidence or doing so is convenient. D. Presentation of Evidence Rule 132. Presentation of Evidence A.
Examination of Witnesses
Sec. 1. Examination to be done in open court Sec. 2. Proceedings to be recorded Sec. 3. Rights and obligations of a witness
Rights of a witness (a) To be protected from irrelevant, improper, or insulting questions, and from harsh or insulting demeanor; (b) Not to be detained longer than the interests of justice require; (c) Not to be examined except only as to matters pertinent to the issue; (d) Not to give an answer which will tend to subject him to a penalty for an offense unless otherwise provided by law; or (e) Not to give an answer which will tend to degrade his reputation, unless it be to the very fact at issue or to a fact from which the fact in issue would be presumed. But a witness must answer to the fact of his previous final conviction for an offense. (Rule 132, Sec. 3).
Obligations of a witness: (a) A witness must answer questions, although his answer may tend to establish a claim against him (Rule 132, Sec. 3, par. 1). (b) A witness must answer to the fact of his previous final conviction for an offense (Rule 132, Sec. 3, par. 5). (c) A witness must testify under oath or affirmation (Rule 132, Sec. 1). Sec. 4. Order in the examination of an individual witness Sec. 5. Direct examination
Direct examination is the examination-in-chief of a witness by the party. Scope: facts relevant to the issue.
Under the Judicial Affidavit Rule (A.M. No. 12-8-8-SC), the judicial affidavits of the parties’ witnesses shall take the place of such witnesses’ direct testimonies. As such, the parties’ documentary or object evidence, if any shall be attached to the judicial affidavits. Sec. 6. Cross-examination; its purpose and extent
Scope (a) Any matter stated in the direct examination; (b) or connected therewith (Rule 132, Sec. 5); (c) If unwilling/hostile/adverse party witness – cross is limited to matters stated during direct examination. (Rule 132, Sec. 12) Purpose (a) To test witness’ accuracy and truthfulness and freedom from interest or bias, or the reverse; and (b) To elicit all important facts bearing upon the issue. (Rule 132, Sec. 5). Nature (a) Fundamental right -- The right of a party to confront and cross-examine opposing witnesses in a judicial litigation, be it criminal or civil in nature, or in proceedings before administrative tribunals with quasi-judicial powers, is a fundamental right which is part of due process. (Savory Luncheonette v. Lakas ng Manggagawang Pilipino, et al., 1975, 62 SCRA 258) (b) Personal right -- The right to cross-examination is a personal right which may be expressly or impliedly waived. (Savory Luncheonette v. Lakas ng Manggagawang Pilipino, et al., 1975, supra).
Lack of cross-examination; effect When cross examination is not and cannot be done or completed due to causes attributable to the party who offered the witness, the uncompleted testimony is thereby rendered incomplete and should be stricken from the record. (Bachrach Motor Co., Inc., v. Court of Industrial Relations, 86 SCRA 27).
It is not proper to exclude a witness because he heard the cross-examination of a prior witness. Excluding future witnesses from the courtroom at the time another witness is testifying, or ordering that these witnesses be kept separate from one another, is primarily to prevent them from conversing with one another. The purpose is to ensure that the witnesses testify to the truth by preventing them from being influenced by the testimonies of the others. In other words, this measure is meant to prevent
35 connivance or collusion among witnesses. The efficacy of excluding or separating witnesses has long been recognized as a means of discouraging fabrication, inaccuracy, and collusion. However, without any motion from the opposing party or order from the court, there is nothing in the rules that prohibits a witness from hearing the testimonies of other witnesses (Design Sources International, Inc. v. Eristingcol, G.R. No. 193966, 19 February 2014).
Sec. 7. Re-direct examination; its purpose and extent Scope (a) Any matter covered during cross-examination; (b) Matters not covered during cross, upon the court’s discretion. (Rule 132, Sec. 6). Purpose (a) to explain; or (b) to supplement his answers given during the cross-
examination. (Rule 132, Sec. 6).
Sec. 8. Re-cross examination
Scope (a) Any matter covered during re-direct examination; (b) Other matters, upon the court’s discretion. (Rule 132, Sec. 7).
Purpose (a) To test witness’ accuracy and truthfulness and freedom from interest or bias, or the reverse; and (b) to elicit all important facts bearing upon the issue.
Sec. 9.
Recalling witness
After the examination of a witness by both sides has been concluded, the witness cannot be recalled without leave of the court. The court will grant or withhold leave in its discretion, as the interests of justice may require. (Rule 132, Sec. 9) A showing of some concrete, substantial grounds for recall, i.e. such as particularly identified material points were not covered, or particular vital documents were not presented to the witness or the cross-examination was conducted in so inept manner as to result in a virtual absence thereof (People v. Rivera, 200 SCRA 786).
Judge’s participation during examination of a witness A judge who presides at a trial is not a mere referee. He must actively participate therein by directing counsel to the facts in dispute, by asking clarifying questions, and by showing an interest in a fast and fair trial (Clarin v. Yatco, 56 O.G. 7042, Nov. 14, 1960). He can interrogate witnesses to elicit the truth, to obtain clarification, or to test their credibility (People v Moreno, 83 Phil. 286). However, this power must be exercised by the court sparingly and judiciously (People v. Ferrer, 44 O.G. 112). The judge cannot curtail counsel's right to interrogate witnesses. (People v. Bedia, 83 Phil. 909)
Recantation of a witness Courts look with disfavor upon retractions, because they can easily be obtained from witnesses through intimidation or for monetary considerations. Hence, a retraction does not necessarily negate an earlier declaration. They are generally unreliable and looked upon with considerable disfavor by the courts (People v. Bulagao, G.R. No. 184757, 5 October 2011). The rule is settled that in cases where previous testimony is retracted and a subsequent different, if not contrary, testimony is made by the same witness, the test to decide which testimony to believe is one of comparison coupled with the application of the general rules of evidence (People v. Bulagao, G.R. No. 184757, 5 October 2011)
Sec. 10. Leading and misleading questions
A leading question is a question which suggests to the witness the answer which the examining party desires (Rule 132, Sec. 10).
General rule: A leading question is not allowed.
Exceptions: (a) On cross-examination; (b) On preliminary matters; (c) When there is difficulty in getting direct and intelligible answers from a witness who is ignorant, or a child of tender years, or is of feeble mind, or a deaf-mute; (d) Of an unwilling or hostile witness; or (e) Of a witness who is an adverse party or an officer, director, or managing agent of a public or private corporation or of a partnership or association which is an adverse party. (Rule 132, Sec. 10).
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A misleading question is one which assumes as true a fact not yet testified to by the witness, or contrary to that which he has previously stated. General rule: A misleading question is not allowed. Exceptions: none. Sec. 11. Impeachment of adverse party’s witness
Methods of impeachment of adverse party’s witness: (a) Contradictory evidence; Contradictory evidence refers to other testimony of the same witness, or other evidence presented by him in the same case, but not the testimony of another witness (b) Evidence of prior inconsistent statements; Prior inconsistent Statements refer to statements, oral or documentary, made by the witness sought to be impeached on occasions other than the trial in which he is testifying (c) Evidence of bad character; (d) Evidence of bias, interest, prejudice or incompetence. Sec. 12. Party may not impeach his own witness
A party can impeach his own witness only by: (a) Evidence contradictory to his testimony; or (b) Evidence of prior inconsistent statements.
Exception: However, in the case of hostile witnesses, adverse party witnesses or involuntary witnesses, they can also be impeached by other modes of impeachment, aside from contradictory statements and prior inconsistent statements made by them. (Rule 132, Sec. 12).
Sec. 13. How witness impeached by evidence of inconsistent statements
Before a witness can be impeached by evidence that he has made at other times statements inconsistent with his present testimony: (a) the statements must be related to him, with the circumstances of the times and places and the persons present; (b) he must be asked whether he made such statements, and if so, allowed to explain them; and (c) if the statements be in writing, they must be shown to the witness before any question is put to him concerning them (Rule 132, Sec. 13).
Non-compliance with the foundational elements for this mode will be a ground for an objection based on “improper impeachment.” Over a timely objection, extrinsic evidence of a prior inconsistent statement without the required foundation is not admissible (Riano, p. 327). Sec. 14. Evidence of good character of witness
Evidence of the good character of a witness is not admissible until such character has been impeached (Rule 132, Sec. 14). This arises from the presumption that the witness is truthful and of good character, hence the necessity of initially showing such traits is unnecessary (Riano, p. 331). Sec. 15. Sec. 16. Sec. 17. Sec. 18.
Exclusion and separation of witnesses When witness may refer to memorandum When part of transaction, writing or record given in evidence, the remainder admissible Right to inspect writing shown to witness
Judicial Affidavit Rule Under the Judicial Affidavit Rule, judicial affidavits of witnesses shall take the place of their direct testimonies (Sec. 2). The adverse party shall have the right to cross-examine the witness on his judicial affidavit and on the exhibits attached to the same.
B. Authentication and Proof of Documents Authentication is the act or mode of giving authenticity to a statute, authority or other written instrument, or a copy thereof, so as to render it legally admissible in evidence (Herrera, Remedial Law Vol. VI, 1999 ed., p. 262). Sec. 19. Classes of documents
Public and private documents
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Public documents are: (c) The written official acts, or records of the official acts of the sovereign authority, official bodies and tribunals, and public officers, whether of the Philippines, or of a foreign country; (d) Documents acknowledged before a notary public except last wills and testaments; and (e) Public records, kept in the Philippines, of private documents required by law to the entered therein (Rule 132, Sec. 19, par. 2).
All other writings are private (Rule 132, Sec. 19, par. 3). o
Baptismal Certificate - While a baptismal certificate may be considered a public document, it can only serve as evidence of the administration of the sacrament on the date specified but not the veracity of the entries with respect to the child's paternity;" and that baptismal certificates were "per se inadmissible in evidence as proof of filiation," and thus "cannot be admitted indirectly as circumstantial evidence to prove [filiation]." (Alado v. Alcoran, G.R. No. 163362, 8 July 2015).
As a general rule, public documents need not be authenticated; private documents have to be authenticated to be admissible in evidence. (J. Benipayo, Evidence: Basic Principles and Selected Problems) “Notarization converts a private document into a public document thus making that document admissible in evidence without further proof of its authenticity. A notarial document is by law entitled to full faith and credit upon its face. Courts, administrative agencies and the pubic at large must be able to rely upon the acknowledgment executed by a notary public and appended to a private document.” (Fabay v. Resuena, AC No. 9723, 26, January 2016) Sec. 20. Proof of private document
Before any private document offered as authentic is received in evidence, its due execution and authenticity must be proved either: (a) By anyone who saw the document executed or written; or (b) By evidence of the genuineness of the signature or handwriting of the maker (Rule 132, Sec. 20, par. 1).
Any other private document need only be identified as that which it is claimed to be. (Rule 132, Sec. 20, par. 2). Sec. 21. When evidence of authenticity of private document not necessary
Evidence of authenticity is not required when: (a) Private document is more than thirty years old; (b) Produced from the custody in which it would naturally be found if genuine; and (c) Is unblemished by any alterations or circumstances of suspicion, no other evidence of its authenticity need be given (Rule 132, Sec. 21). Sec. 22. How genuineness of handwriting proved
The handwriting of a person may be proved by: (a) Testimony of: Witness who actually who actually saw the person writing the instrument (Rule 132, Sec. 20a). Witness familiar with such handwriting (Rule 132, Sec. 22) and who can give his opinion thereon, such opinion being exception to opinion rule (Rule 130, Sec 50b). Expert witness (Rule 130, Sec. 49). (b) Comparison by the court of the questioned handwriting and admitted genuine specimens thereof (Rule 132, Sec. 22).
No preference rule - The law makes no preference, much less distinction among and between the different means stated in the Rules of Court in proving the handwriting of a person. (Domingo v. Domingo, G.R. No. 150897, 11 April 2005)
Probative value of opinions of handwriting experts - Courts are not bound to give probative value or evidentiary value to the opinions of handwriting experts, as resort to handwriting experts is not mandatory. (Bautista v. Castro, G.R. No. 61260, 17 February 1992, 206 SCRA 305, 312) Sec. 23. Public documents as evidence
Public documents as evidence (a) Entries in public records made in the performance of a duty by a public officer are prima facie evidence of the facts therein stated. (Rule 132, Sec. 23). (b) All other public documents are evidence, even against a third person, of: (i) the fact which gave rise to their execution; and (ii) date of the document. (Rule 132, Sec. 23). Sec. 24. Proof of official record
The record of public documents (referred to in paragraph Rule 132, Sec. 19 [a]) may be evidenced by:
38 (a) An official publication thereof; or (b) By a copy attested by the officer having the legal custody of the record, or by his deputy. Sec. 25. What attestation of copy must state
Attestation requirements – primary: (a) Statement of correctness - The attestation must state, in substance, that the copy is a correct copy of the original, or a specific part thereof, as the case may be. (Rule 132, Sec. 25) (b) Official Seal - The attestation must be under the official seal of the attesting officer, if there be any, or if he be the clerk of a court having a seal, under the seal of such court. (Rule 132, Sec. 25)
Requisites for foreign public documents (a) Certificate of custody - If the record is not kept in the Philippines the copy must be accompanied by a certificate that such officer has the custody. The certificate may be made by a secretary of the embassy or legation, consul general, consul, vice consul, or consular agent or by any officer in the foreign service of the Philippines stationed in the foreign country in which the record is kept (Rule 132, Sec. 24). (b) Authentication – the certificate must be authenticated by the seal of the office of the issuer (Rule 132, Sec. 24).
Absent the attestation of the officer having the legal custody of the records and the certificate to that effect by a Philippine foreign service officer, a mere copy of the foreign document is NOT admissible as evidence to prove foreign law (Wildvalley Shipping Co. Ltd. v. CA, G.R. No. 119602, 6 October 2000).
Under Section 24 of Rule 132, the record of public documents of a sovereign authority or tribunal may be proved by: (1) an official publication thereof or (2) a copy attested by the officer having the legal custody thereof. Such official publication or copy must be accompanied, if the record is not kept in the Philippines, with a certificate that the attesting officer has the legal custody thereof. The certificate may be issued by any of the authorized Philippine embassy or consular officials stationed in the foreign country in which the record is kept, and authenticated by the seal of his office. The attestation must state, in substance, that the copy is a correct copy of the original, or a specific part thereof, as the case may be, and must be under the official seal of the attesting officer. Section 25 of the same Rule states that whenever a copy of a document or record is attested for the purpose of evidence, the attestation must state, in substance, that the copy is a correct copy of the original, or a specific part thereof, as the case may be. The attestation must be under the official seal of the attesting officer, if there be any, or if he be the clerk of a court having a seal, under the seal of such court (Noveras v. Noveras, G.R. No. 188289, 20 August 2014).
Sec. 26. Irremovability of public record Sec. 27. Public record of a private document
The fact that the documents were certified as true copies of the original by the PCGG does not enhance its admissibility. These documents have remained private even if it is in the custody of the PCGG. What became public are not the private documents (themselves) but the recording of it in the PCGG. For, "while public records kept in the Philippines, of private writings are also public documents...the public writing is not the writing itself but the public record thereof. Stated otherwise, if a private writing itself is inserted officially into a public record, its record, its recordation, or its incorporation into the public record becomes a public document, but that does not make the private writing itself a public document so as to make it admissible without authentication (Republic v. Sandiganbayan, Tantoco Jr., G.R. No. 18881, 21 April 2014)."
Proof of public records of private documents: (a) The original record; (Rule 132, Sec. 27) (b) Copy of the original record, attested by the legal custodian of the record, with an appropriate certificate that such officer has the custody. (Rule 132, Sec. 27) Sec. 28. Proof of lack of record
A written statement signed by an officer having the custody of an official record or by his deputy that after diligent search no record or entry of a specified tenor is found to exist in the records of his office, accompanied by a certificate as above provided, is admissible as evidence that the records of his office contain no such record or entry (Rule 132, Sec. 28).
Sec. 29. How judicial record impeached
Any judicial record may be impeached by evidence of: (a) want of jurisdiction in the court or judicial officer; (b) collusion between the parties; or (c) fraud in the party offering the record, in respect to the proceedings (Rule 132, Sec. 29.). Sec. 30. Proof of notarial documents
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Notarial documents may be presented in evidence without further proof, the certificate of acknowledgment being prima facie evidence of the execution of the instrument or document involved (Rule 132, Sec. 30). Sec. 31. Alterations in document, how to explain
A party may show that an alteration was: (a) made by another, without his concurrence; (b) was made with the consent of the parties affected by it or was otherwise properly or innocent made; or (c) that the alteration did not change the meaning or language of the instrument (Rule 132, Sec. 31). Sec. 32. Seal Sec. 33. Documentary evidence in an unofficial language C.
Offer and Objection
Sec. 34. Offer of evidence
The court shall consider no evidence which has not been formally offered. The purpose for which the evidence is offered must be specified (Rule 132, Sec. 34).
The court considers the evidence only when it is formally offered. The offer of evidence is necessary because it is the duty of the trial court to base its findings of fact and its judgment only and strictly on the evidence offered by the parties. A piece of document will remain a scrap of paper without probative value unless and until admitted by the court in evidence for the purpose or purposes for which it is offered. The formal offer of evidence allows the parties the chance to object to the presentation of an evidence which may not be admissible for the purpose it is being offered (Laborte and Philippine Tourism Authority v. Pagsanjan Tourism Consumers Cooperative, G.R. No. 183860, 15 January 2014). Requisites for evidence to be considered despite failure to formally offer it: (1) duly identified by the testimony duly recorded, ad (2) must have been incorporated in the records of the case (Laborte and Philippine Tourism Authority v. Pagsanjan Tourism Consumers Cooperative, G.R. No. 183860, 15 January 2014; Heirs of Serapio Mabborang v. Mabborang, G.R. No. 182805, 22 April 2015).
Sec. 35. When to make offer Testimonial evidence - must be offered at the time the witness is called to testify. Documentary and object evidence - must be offered after the presentation of a party's testimonial evidence. Such offer shall be done orally unless allowed by the court to be done in writing (Rule 132, Sec. 35).
Sec. 36. Objection Rule: grounds for objections must always be specified. (Rule 132, Sec. 36, par. 4). When to make objections: (a) Testimonial evidence - must be objected to immediately after the offer is made. (Rule 132, Sec. 36, par. 1). (b) Objection to a question during oral examination - must be made as soon as the grounds therefor shall become reasonably apparent (Rule 132, Sec. 36, par. 2). (c) Documentary evidence - shall be objected to within three (3) days after notice of the offer unless a different period is allowed by the court (Rule 132, Sec. 36, par. 3). Sec. 37. When repetition of objection unnecessary Repeating an objection is NOT necessary when it becomes reasonably apparent in the course of the examination of a witness that the questions being propounded are of the same class as those to which objection has been made, whether such objection was sustained or overruled. (Rule 132, Sec. 37). In such case, it is sufficient for the adverse party to record his continuing objection to such class of questions. Rule 132, Sec. 37).
Sec. 38. Ruling
When made: Immediately after the objection is made. Exception: Unless the court desires to take a reasonable time to inform itself on the question presented (Note: but the ruling shall always be made during the trial and at such time as will give the party against whom it is made an opportunity to meet the situation presented by the ruling).
Content of ruling: The reason for sustaining or overruling an objection need NOT be stated. (In contrast, objections made by lawyers must always specify the grounds therefor.) Exception: If objection is based on two or more grounds, a ruling sustaining the objection on one or some of them must specify the ground or grounds relied upon.
Erroneous rulings on admissibility of evidence are: (a) Considered errors in judgment, not of jurisdiction;
40 (b) Interlocutory in nature; (c) May not be the subject of a separate appeal or review on certiorari; (d) Must be assigned as errors and reviewed in the appeal properly taken from the decision rendered by the trial court on the merits of the case. (Triplex Enterprises, Inc. v. PNB-Republic Bank, et al. G.R.,No. 151007, 17 July 2006). Sec. 39. Striking out answer
Should a witness answer the question before the adverse party had the opportunity to voice fully its objection to the same, and such objection is found to be meritorious, the court shall sustain the objection and order the answer given to be stricken off the record (Rule 132, Sec. 39). On proper motion, the court may also order the striking out of answers which are incompetent, irrelevant, or otherwise improper (Rule 132, Sec. 39). Sec. 40. Tender of excluded evidence
E.
If documents or things offered in evidence are excluded by the court, the offeror may have the same attached to or made part of the record. If the evidence excluded is oral, the offeror may state for the record the name and other personal circumstances of the witness and the substance of the proposed testimony (Rule 132, Sec. 40).
Weight and Sufficiency of Evidence
Rule 133.
Weight and Sufficiency of Evidence
Sec. 1. Preponderance of evidence, how determined Preponderance of evidence is required in civil cases. In determining preponderance of evidence, the court may consider: All the facts and circumstances of the case; The witnesses’ manner of testifying; Their intelligence; Their means and opportunity of knowing the facts to which they testify; The probability or improbability of their testimony; Their interest or want of interest; Personal credibility so far as the same may legitimately appear upon the trial; Number of witnesses (note preponderance is not necessarily equivalent with the no. of witnesses). Sec. 2. Proof beyond reasonable doubt
Proof beyond reasonable doubt - is that degree of proof which produces conviction in an unprejudiced mind; required in criminal cases. Absolute certainty is not required, only moral certainty.
Sec. 3. Extrajudicial confession, not sufficient ground for conviction
An extrajudicial confession made by an accused, is not a sufficient ground for conviction UNLESS corroborated by evidence of corpus delicti. (Rule 133, Sec. 3). Sec. 4. Circumstantial evidence, when sufficient
Requisites for circumstantial evidence to be sufficient for conviction: (a) There is more than 1 circumstance; (b) The facts from which the inferences are derived are proven; and (c) The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. (Rule 133, Sec. 4).
Lest this statement be misunderstood, a finding of guilt is still possible despite the absence of direct evidence. Conviction based on circumstantial evidence may result if sufficient circumstances, proven and taken together, create an unbroken chain leading to the reasonable conclusion that the accused, to the exclusion of all others, was the author of the crime (Almojuela v. People of the Philippines, G.R. No. 183202, 2 June 2014). To uphold a conviction based on circumstantial evidence, it is essential that the circumstantial evidence presented must constitute an unbroken chain which leads one to a fair and reasonable conclusion pointing to the accused, to the exclusion of the others, as the guilty person. Stated differently, the test to determine whether or not the circumstantial evidence on record is sufficient to convict the accused is that the series of circumstances duly proven must be consistent with each other and that each and every circumstance must be consistent with the accused’s guilt and inconsistent with his innocence (Atienza v. People, G.R. No. 188694, 12 February 2014). The positive identification of the accused-appellant constitutes direct evidence, and not merely circumstantial evidence (People v. Bas, G.R. No. 195196, 13 July 2015).
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For the defense of alibi to prosper, the accused must not only prove by clear and convincing evidence that he was at another place at the time of the commission of the offense but that it was physically impossible for him to be at the scene of the crime. [Accused] himself admitted that he was just one kilometer away from the crime scene when the incident happened during the unholy hour of 1:00 a.m. of July 15, 2001 As such, [the accused] failed to prove physical impossibility of his being at the crime scene on the date and time in question. Just like denial, alibi is an inherently weak defense that cannot prevail over the positive identification by the witnesses of the petitioners as the perpetrators of the crime. In the present case, the accused was positively identified by the prosecution witnesses as one of the assailants. Moreover, alibi becomes less credible if offered by the accused himself and his immediate relatives as they are expected to make declarations in his favor, as in this case, where Emilio, his father and brother insisted that the former was somewhere else when the incident occurred. For these reasons, Emilio's defense of alibi will not hold. (Ibañez v. People, GR No. 190798, 27 January 2016)
Sec. 5. Substantial evidence
Substantial evidence is that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion. 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. Clear and convincing evidence -- Evidence is clear and convincing if it produces in the mind of the trier of fact a firm belief or conviction as to allegations sought to be established. It is intermediate, being more than preponderance, but not to the extent of such certainty as required beyond reasonable doubt in criminal cases (Black’s Law Dictionary, 5th ed., 227). Sec. 6. Power of the court to stop further evidence
The court may stop the introduction of further testimony upon any particular point when the evidence upon it is already so full that more witnesses to the same point cannot be reasonably expected to be additionally persuasive. But this power should be exercised with caution. (Rule 133, Sec. 6) Sec. 7. Evidence on motion
When a motion is based on facts not appearing of record the court may hear the matter on affidavits or depositions presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions. (Rule 133, Sec. 7). Examples of motions which require presentation of evidence: Motion for bail; Application for TRO/Injunction; or Motion to dismiss.
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