JUDGMENT, o 3.

Testimonial
REMEDIES Whether its object, documentary or testimonial, what is required?
Surrender of convicted Within 15 days from Surrender and file o They have to pass the test of admissibility (Rule 128, Sec. 3)
accused, after initially promulgation of motion to avail of post-
failing to appear in judgment judgment remedies Direct: proves fact in dispute without Circumstantial: proof of facts, when
promulgation of (because these will not need for inference or presumption taken collectively, existence of
judgment avail anymore) particular fact may be inferred as a
Availing of post- Within 15 days from necessary or probable consequence.
judgment remedies of notice, after proving Primary: best evidence; affords Secondary: inferior to primary
above-stated person justifiable reasons for greatest certainty of fact evidence and shows on its face that
non-appearance better evidence exists.
Positive: witness affirms that a fact Negative: witness states that he did
Appeal from judgment *follow usual periods in did or did not occur. Positive trumps not see or know the occurrence of a
appeal negative, when witnesses equally fact; only admissible to contradict
Submission of Within 30 days of credible positive evidence.
appellants brief receipt of notice from
clerk of transmittal of Corroborative: Different kind and Cumulative: Same kind and
evidence character proving the same point character as that already given,
Submission of proving same point
appellees brief Prima facie: that which suffices to Conclusive: incontrovertible
prove a fact, until contradicted by
other evidence

PART III: EVIDENCE When is evidence admissible?

o When it is relevant and competent
When is it relevant?
General provisions o 1. When it is material
When is it material?
When did the Rules on Evidence take effect?
Has direct relation to the fact in issue
o July 1, 1989
o 2. When it has probative value
What is evidence?
When does it have probative value?
o Evidence is the means, sanctioned by the Rules, of
Can induce belief as to its existence or non-
ascertaining in a judicial proceeding the truth respecting a
existence
matter of fact.
When is it competent?
Not all concepts of evidence will require presentation of evidence.
o Not excluded by law
What are these exceptions?
o What are not competent give examples:
o 1. Judicial notice
Those excluded by the Best Evidence Rule
o 2. Judicial admissions
Those seized without valid warrant and without a valid
When youre required to present evidence, there are three kinds:
exception
o 1. Object
Those violating the Parol Evidence Rule (contents in
o 2. Documentary
the written document are presumed to be the

116
 repository of all the matters agreed upon by the
parties)
Differentiate direct from circumstantial evidence.
o Direct: prove a matter without need for inference or
presumption
o Circumstantial: facts, from which the existence of another fact
may be inferred as a necessary or probable consequence
o When is testimonial evidence direct evidence?
When the witness was able to perceive the matter
being testified upon
o Can circumstantial evidence be the basis for conviction?
Yes. As long as there is more than one circumstance
and each is proven.
o Can circumstantial evidence be basis for identification?
Yes.
What are the characteristics of admissibility?
o 1. Multiple admissibility evidence may be admissible for
multiple purposes
o 2. Limited admissibility it may be admissible for one purpose
but not another, or against one party, but not another
o 3. Conditional admissibility if relevancy of a fact is dependent
on evidence not yet submitted, the court may accept the
evidence conditioned on:
A. statement of supposed connecting facts
B. promise to give it in evidence
o 4. Curative admissibility where inadmissible evidence is
offered and not objected to, if the latter party is presenting
similarly inadmissible evidence to counteract the first
inadmissible evidence, then it is likewise admissible
What is the difference in relevance of direct and circumstantial
evidence?
o 1. Direct evidence is always relevant
o 2. Circumstantial evidence may or may not be relevant
The more steps there are in the chain of inference,
the less probative value it has
What is positive evidence?
o Evidence that proves something happened.
o Ex. I saw him stab person X or I did not see him stab person
X
117
What is negative evidence?
o Evidence where the witness was there, but he did not perceive
anything.
o Ex. I was there in the scene, but I did not notice anything
happen.
What is primary evidence?
o Best available evidence to establish the fact in issue
o What is an example of primary evidence?
Best Evidence Rule. The secondary evidence here is
photocopy, recital of the contents, or testimony as to
its contents.
What is weightier, physical evidence or testimonial evidence?
o Physical evidence.
Note: exceptions to the hearsay rule are not absolute. They can be
contested or impugned.
o How do you destroy the exception?
Destroy the requisites.
Ex. was it audible? was he aware that he was going
to die?
Is there primary evidence in object evidence?
o Yes. If you want to present a car, present the actual thing
itself.
o What is the secondary evidence?
A car of the same model, same type, etc. which will
aid the court in understanding the object involved.
Is there primary evidence in testimonial evidence?
o Yes. A person who had personal knowledge.
o What is the secondary evidence?
Hearsay.
N.B. but note that the codal does not expressly tag
hearsay as secondary evidence although it is. When
asked in the bar what secondary evidence is, give the
answer for documentary evidence to be sure.
What is prima facie evidence?
o That which suffices to prove a fact, until contradicted by other
evidence
o What is the difference between prima facie evidence and
disputable presumption?
 1. Prima facie evidence arises from a fact that would In rape, the accused can point to the character of the
sufficiently create a reasonable belief that an act supposed victim to prove that there is probability that
alleged has arisen the intercourse was consensual.
2. Disputable presumption arises from Rule 131 N.B. You can only use character evidence if there is a
o N.B. they are the same in such that these can be controverted character trait involved in the offense charged.
What is a conclusive presumption? What is factum probandum and factum probans?
o It cannot be controverted o Factum probandum is what must be proved
o But can you attack a fact that leads to a conclusive o Factum probans is what is used to prove it
presumption?
Yes. Judicial notice and judicial admissions
o Give an example of a conclusive presumption.
Tenant cannot deny the title of his landlord When is it mandatory?
Distinguish between preponderance of evidence and proof BRD: o 1. States existence, territorial extent, political history, forms
o Preponderance Court determines superior weight of of government, symbols of nationality
evidence; for civil cases o 2. Law of nations, admiralty, maritime courts of the world, and
o Proof BRD Moral certainty, conviction will arise from an their seals
unprejudiced mind; for criminal cases o 3. Political constitution and history of the Philippines, official
Are the rules of evidence uniformly applied in all our courts? acts of legislative, executive, judicial departments of
o Yes, in general. Philippines
o Trade disputes in DTI? o 4. Laws of nature, measure of time, geographical divisions
No. Why are these mandatory?
o NLRC exercising QJ functions? o Because they have already been established. They cannot be
No. You dont need best evidence available here disputed anymore. No need to introduce evidence anymore.
(can use photocopies, thats fine) Can the court take judicial notice of rentals?
o What does except if otherwise provided by law? o No. The court cannot take judicial notice of factual matters.
If otherwise provided, then the uniform application will Is the court bound to take judicial notice of municipal orders?
not extend to that. o MTC judge required, if ordinance came from municipality or
o Examples: city where they sit
1. Agrarian cases o RTC judge No. Except when a) required by statute; b)
2. Rule 130, sec. 26/27: compromise rules are not inferior court took judicial notice of an ordinance in the case
the same in civil and criminal cases being appealed before RTC
3. Character evidence: there is also difference in o What about memorandum circulars issued by
civil and criminal cases departments?
4. Two witness rule in treason No. The court is not expected to take notice of these
What about collateral facts? less important matters.
o General rule, not relevant o What about customs and foreign laws?
o EXCEPT, when the collateral matters establish probability or No, these must be proved in court
improbability of the fact in issue Are courts bound to take judicial notice of cases pending in the
o Give an example. same court or decided in that court?

118
 o No. The courts will not and cannot, even if it came from the
same court.
o What are the requisites for the exceptional circumstance
when a marked but unoffered piece of evidence
referencing a prior decided case fell under judicial notice
(note, if it were offered, no need to resort to judicial
notice)? (Basis: Tabuena v. CA)
1. Without objection by the other party
2. With knowledge of the other party
3. At the request or with consent of the parties
4. The case is clearly referred to
5. It is actually withdrawn from the archives
6. It is admitted as part of the record of the case
What is covered by discretionary judicial notice?
o 1. Matters of public knowledge
Example: Death of Corazon Aquino
o 2. Capable of unquestionable demonstration
What is this? If repeated in a regular manner, it will
establish that fact.
Examples:
Mathematical computation
Statistics
Effects of poison, etc.
Do surveys fall under this?
No, because methods change, samples
change, etc.
o 3. Ought to be known to judges due to their judicial function
Can a judge take judicial notice of proceedings
pending in other courts?
No.
Hes not bound to know all the cases filed.
What about pending cases in his own sala?
No.
Unless he takes the consent of the parties.
When can there be taking of judicial notice?
o 1. During trial on any matter and with hearing
o 2. After trial and before judgment same, but only on matters
decisive of a material issue in a case
119
o 3. After appeal same, but only on matters decisive of a
material issue in a case
Can every matter be subject of judicial notice?
o Yes, during the hearing.
o You are not limited to the enumerations provided in law.
o What is the need for a hearing?
Check propriety of taking judicial notice
There was an insurance recovery claim, dated September 2009. It
was not alleged in the claim that the loss happened on the day
Ondoy struck Manila. Can the other party request the court to take
judicial notice (or can the court motu propio take judicial notice) of
this fact?
o Yes.
Differentiate between legislative facts and adjudicative facts:
o Legislative facts: general facts of political, social, or economic
nature
o Adjudicative facts: those applicable to the facts in the present
case
Judicial admissions:
o Statement made as to a fact in issue made in a pleading or in
utterances in a trial
o Do you need proof as to judicial admissions?
No.
When is there a judicial admission?
o Made in the same pending proceedings
o What if made in prior proceedings?
These already become extrajudicial admissions,
which are by nature disputable
What are covered?
o 1. Statements in pleadings (ex. complaint or answer)
o 2. Statements made during testimonial presentation
o 3. Depositions or other documents
o 4. Pre-trial
o 5. Documents submitted in court
o Can they be withdrawn?
Yes.
When?
1. There was no intent to make such an admission
2. Or there was palpable mistake
 What is the nature of admissions made in amended pleadings? they did to it; B) and that during the time they had it in their
o They are mere extra-judicial admissions. Thus, they have to possession, no other person had access to that thing.
be offered in evidence first. o The purpose is to show that evidence was not tampered with.
Does non-production of object evidence render testimonial
Rule 130 evidence re: the object inadmissible?
o No. This just goes into weight.
N.B. The rules on admissibility are applicable to object, documentary, Are experiments admissible?
and testimonial evidence alike. o Yes.
o When is it not?
Object evidence
1. Too complicated to afford any fair inference,
2. Cannot be performed in manner to fairly illustrate
What is object evidence?
the fact
o Those addressed to the senses of the court
3. More likely to confuse than shed light.
o An object is presented so that the court can perceive it.
What is a paraffin test?
What is the difference between object and testimonial evidence?
o Test for gunshot residue
o Object addressed to courts senses and courts can actually
o Are the results conclusive?
observe it
No. Its not 100% reliable.
What if it is immobilized ex. real property or
personal properties attached? Is a lie detector test 100% reliable?
o No. You can cheat it.
Ocular inspection
o Testimonial recounting, second hand What is demonstrative evidence?
o Evidence that adds to or explains.
Differentiate real and demonstrative evidence:
o Maps, charts, graphs, etc.
o Real tangible object that played an actual role in the issue in
o Is it the same as demonstration?
trial
No. Demonstration is when you ask for a re-
o Demonstrative evidence in the form of a representation of an
enactment or display of how an act was done or re:
object
facts.
When is object evidence admissible?
o 1. Object is relevant Documentary evidence
o 2. Object is authenticated
What is authentication? What is documentary evidence?
That it actually is what you claim it to be o Writings on any material containing, letters, words, numbers,
Does authentication apply to demonstrative figures, symbols, or other modes of written expression AND it
evidence? is offered as proof of its contents
No. Because it does not purport to be the o If Blitz had a tattoo saying I love Jojo is this
actual thing. documentary evidence?
What is chain of custody? Yes.
o Before an object can be received in evidence, one must: A) o If Blitz wrote on a shirt, saying Good luck! is this
present all the persons who handled the object and show what documentary evidence?
Yes.

120
 o Why are these documentary evidence?
It can be in any material, as long as it is a writing or
inscription.
What about text mesage?
Yes.
It is ephemeral evidence
o When is a piece of writing NOT considered documentary
evidence?
When you not focused on establishing its contents
For instance, you are establishing its existence or its
condition, and not its contents
What is required for photographic evidence?
o It must be relevant and verified
o Who must verify it?
Some qualified witness
In general, must be the photographer, who
establishes the production thereof and the
circumstances under which it was produced
But other witnesses can also establish its exactness
and accuracy (for instance, someone who was there
too)
o What must be proved?
That it is an accurate representation of what
happened.
As to production and circumstances under which they
were produced.
Prove who operated the camera, the ability of the
camera to capture the scene, etc.
o Prove all of this first before going into the contents of the
photograph.
What about videos?
o Similarly, lay down the basis, before presenting the contents
What is the Best Evidence Rule?
o When the subject of inquiry is the contents of a document, no
evidence is admissible other than the original document itself
o What if all you want to establish is the existence of a
document, do you need to present the original?
No. Because its not the contents of the document
that are in issue. You can present a copy.
121
N.B. However in practice, try to always present the
original.
o What is the original?
1. The one the contents of which are the subject of
inquiry
Is the copy made an original just because
the contents thereof are the subject of
inquiry?
o No. You still have to go to the
original.
Do you need to authenticate an original
document even if it appears to be an
original?
o Yes, even if it appears to be an
original.
2. Document is in two or more copies executed at or
about the same time with identical contents
Usual examples:
o Carbon copies
o Computers that shoot straight
through to the Xerox machine, and
then sign all
o Or printing 5 copies of the same
document, and then sign all
What if I print and sign one, then make
my secretary produce four copies?
o The four copies are not originals
I executed a document by 8 counterparts
(ex. bills in set), signed four here in
Manila on Feb. 28 and shipped four to HK,
which were signed on Mar. 1. Are they all
original, even if executed in different
dates?
o Yes, they can be regarded as
originals.
o N.B. You have to stipulate in the
contract (execution by
counterparts) that even if not
 executed on or about the same
time, they are all originals.
3. Entry is repeated in the regular course of business,
one copied from another at or near the time of the
transaction
N.B. this refers to entry not execution, but
you do not sign the books
o Does execution in number 2 include formalities like
notarization and affixing signature?
It depends on what form is required from the contract.
What are the exceptions to the Best Evidence Rule?
o 1. The original has been lost, destroyed, or cannot be
produced in court
Not through the fault or bad faith of the offeror
Must there be exercise of diligence?
Yes, the offeror must attempt to procure the
original
In cases of loss or destruction, can you present
secondary evidence?
Yes. You need to lay the basis first.
What do you need to do?
o 1. Prove that the document exists
and it was duly executed
o 2. Prove cause of unavailability
The actual presentation of secondary
evidence will only come after laying the
basis.
What are the types of secondary evidence that
you can present?
1. Copy of the document
2. Recital of its contents in an authentic
document
o Ex. Secretarys certificate, in case
of loss of the minutes
o Ex. There is a mother contract, and
there is a Memorandum of
Agreement containing the basic
terms
o Ex. A demand letter
122
o Must it be a verbatim copy or is
paraphrasing fine?
Verbatim copy
3. Testimony of a witness
Must it be in this order?
Yes. Follow this order.
o 2. Original is in the adverse partys custody or control
What are the requisites?
1. Document exists
2. There is reasonable notice to produce it
given to the other party
3. There is failure to produce
Does this lead to presentation of secondary
evidence?
Yes
o 3. Original constitutes voluminous documents
Requisites?
1. Prove voluminous nature of the
documents, which cannot be examined in
court without great loss of time
2. Provide access to the other party to the
original documents
What must be proved by these documents?
The fact sought to be established must be
the general result of the whole
What if the voluminous documents are financial
documents for the past 20 years, and the fact
sought to proved is the profit/gain for this period?
You can present a summary because you
are proving the general result of a whole.
What do you need to present?
You just need to present a summary of the
documents
When do you need to present the original?
When the contents thereof are the subject of
the inquiry no matter how voluminous they
are.
 o 4. Original which is in the custody of a public officer or
recorded in a public office
Can you present the original?
No, because its in the custody of that officer
or office.
What do you present?
A certified true copy given by the public
officer in custody thereof.
Give an example.
NSO Birth Certificate.
Just the Xerox copy of buy-bust money is presented in court.
Admissible?
o Yes, because you are just proving the money exists, and not
the contents of the money.
o Test: What is being proved?
That the money exists.
Not the content of the money as a document.
If you want to prove payment, can you just present the witness
who was there at the time payment was made, and not the receipt?
o Yes. The BER does not apply because what is being proved is
the fact of payment, even when there is a receipt.
o Test: What is being proved?
That there was payment.
Not the content of the specific receipt.
How does the BER apply to Electronic evidence?
o An electronic document is regarded as the equivalent of the
original under the BER if:
1. It is a printout or output readable by sight or other
means
2. It is shown to reflect the data accurately
What is the rule on electronic documents?
o In general, they are the functional equivalent of original
documents
When is a photocopy inadmissible under the Rules on Electronic
Evidence?
o 1. There is genuine dispute as to the authenticity of the original
o 2. Unfair or inequitable under the circumstances to admit it
123
When a document is altered or amended by the parties, what is the
original?
o The amended or altered document
X was ejected from his seat in ABC airline. Protesting, he told the
purser about the incident. The purser recorded in his notebook that X
was ejected from his seat. Does BER prohibit testimony re: the
pursers act because the notebook was not presented?
o No. The fact at issue is the ouster, not the contents of the
notebook.
X was being investigated for alleged perjury in a senatorial investigation
for malversation charges. The chief counsel in the investigation testified
as Xs statements in the investigation. X objected, claiming the
transcript is the best evidence and the chief counsels investigation is
barred by BER. Correct?
o No. The issue here is not the contents of the transcript but
what X said in the investigation. The issue is not re: contents
of a document.
X claimed that a movie infringed on his copyright over original designs
for a vehicle. X was unable to present his original designs, and instead
presented a reconstruction made after the film was released. Barred
by BER?
o Yes. The fact at issue is the content of the drawings, so the
original must have been presented. X could not properly prove
in this case, moreover, that the original drawings were lost
without his fault.
What is the Parole Evidence Rule?
o When the contents of a document are reduced to writing, it is
considered as containing all the terms agreed upon as
between the parties and their successors in interest.
o No other evidence of such terms can be presented.
What are the exceptions?
o 1. Intrinsic ambiguity, mistake, or imperfection in the written
agreement
Must it be ambiguous on its face?
No. The ambiguity must be intrinsic.
Give an example.
In a will, the testator said I give half my
property to my son Buboy. When the will
 was being probated, it turns out there were
two sons with the nickname Buboy.
What mistake is contemplated?
Mistake of fact, and the mistake was mutual
What are the requisites?
o 1. Mistake is of fact
o 2. Mistake is mutual
o 3. Mistake must be alleged and
proved by clear and convincing
evidence
What do you do with the contract?
o Reform.
o When do you not reform?
When there was no
meeting of the minds.
Example, X thought it was
the property in Batangas,
Y thought it was the
property in Cavite.
Give an example.
o Contract of sale of property. X
thought it was Batangas, Y thought
it was Batangas. But it was actually
in Cavite.
Give an example of imperfection in the written
agreement?
The provision says that the offended party
must pay damages, when it fact, the offender
must pay.
Another: X and Y entered into a contract of
sale of property, over a Batangas property.
But the technical specifications provided
were those of the Cavite property.
o 2. The failure of the written agreement to express the true
intent and agreement of the parties
Give an example.
X approached Y, asking for money for tuition
fee of his son. X said he intended to
mortgage his property. Y asked him to sign
124
a document, but that contract provided for an
absolute sale
o 3. Validity of the written agreement is at issue
Can a contract void on its face be made valid by
presentation of extraneous evidence?
No. This provision does not contemplate
contracts that are by nature void, to make
them legal.
What situations are covered under this?
1. No contract ever existed
2. Minds of the parties never met on the
terms of the contract
3. No consideration upon which an
agreement was formed
o 4. Existence of other terms agreed to by the parties/their
successors-in-interest after execution of the written agreement
Give an example.
There is an original contract and it was
amended from a 20-year agreement to a 10-
year agreement
What is the rule?
1. The separate oral agreement must be A)
collateral and B) it must relate to a subject
distinct from that to which the contract
applies
2. Or if there is a new contract
What if the document expressly states that all the
rights and obligations of the parties are written
therein?
Even when there are collateral agreements,
they cannot be presented
What is required?
o The party questioning it must put it in issue in his pleadings
What if a party fails to object, invoking the PER?
o It will be deemed a waiver.
If the party presenting parol evidence is not a party to the contract,
will the PER apply?
o No. The PER only binds the parties to the contract.
 What if there is a suspensive condition in the contract?
o When the operation of a contract is made to depend on the
occurrence of the event as a condition precedent, it may be
proved by parol evidence.
o This is not varying the terms of the agreement, because there
is legally no contract in existence.
To what kind of documentary evidence does PER apply?
o Written agreement. A receipt is not a written agreement.
Rules on Electronic Evidence
To what cases does REE apply?
o 1. Civil actions and proceedings
o 2. Quasi-judicial and administrative cases
o N.B. NOT criminal
What is the functional equivalence rule?
o When a rule of evidence refers to a document, it shall be
deemed to include electronic evidence
When is it admissible?
o If it complies with rules of admissibility in the ROC and
authenticated through methods in the REE
When is an electronic document the equivalent of an original under
the Best Evidence Rule?
o 1. If it is a printout or output readable by sight or other means
AND
o 2. It is shown to reflect the data accurately
When are copies treated as equivalents of originals?
o 1. Document is in 2 or more copies executed at or about the
same time with identical contents OR
o 2. Counterpart produced from same impression or matrix as
the original, or through mechanical/electronic re-recording, or
chemical reproduction
o When are the copies not admissible to the same extent as
an original?
1. There is genuine question as to authenticity of the
original OR
2. It is unjust or inequitable to admit a copy in lieu of
the original
125
What are the means by which an electronic document
authenticated?
o 1. Evidence that it had been digitally signed by the person
purported to have signed it
o 2. Evidence that other appropriate security procedures or
devices as may be authorized by the SC/law were applied to
the document
o 3. Other evidence showing integrity/reliability to the judges
satisfaction
What is the equivalent of a notarized document under the ROC?
o Documents that are electronically notarized
What is an electronic signature?
o Distinctive mark, characteristic, or sound in electronic form
representing the identity of a person and attached to an
electronic document with intent of authenticating, signing, or
approving it
N.B. electronic signatures include digital signatures
o How is an electronic signature authenticated?
1. Evidence that a method or process was utilized to
establish a digital signature and verify the same
2. Other means provided by law
3. Other means satisfactory to the judge
o What are the disputable presumptions relating to the
electronic signature?
1. It is that of the person to whom it correlates
2.it was affixed by that person with intent to
authenticate or approve the electronic document, or
indicate consent
3. Methods or processes utilized to affix or verify the
electronic signature operated without error or fault
What is a digital signature?
o Electronic signature consisting of a transformation of an
electronic document using asymmetric or public cryptosystem
such that a person having the initial untransformed electronic
document and the signers public key can determine:
1. whether the transformation was created using the
private key (corresponding to the public key) and
2. whether the electronic document has been altered
 o What are the disputable presumptions re: a digital o 1. Those whose mental condition, at the time of presentation,
signature? is such that they cannot intelligently make known their
1. Information in the certificate is correct perception to others
2. Digital signature was created during operation X perceived. Then X became insane. Then X had
period of a certificate a lucid interval during presentation of witness.
3. Message associated with a digital signature has not Can X testify?
been altered from the time it was signed Yes. The requirement is during his/her
4. Certificate had been issued by the certification presentation.
authority What is the presumption?
What is the additional exception to the hearsay rule added by the That a witness is of sound mind.
REE? What is the exception?
o Business records are an exception to the hearsay rule. o He was publicly known as insane or
o These are data made by electronic, optical, or similar means at committed in a mental institution.
or near the time of transmission of information, kept in regular When must objections to competency of
course of business, and it was regular practice to get such witnesses be made?
data. 1. If incapacity is known before trial, before
o Who testifies as to these circumstances? he takes the witness stand
By the custodian of the information or other qualified 2. If it becomes apparent during trial, as
witness soon as incompetency becomes apparent
o How is the presumption overcome? o 2. Children whose mental maturity makes them incapable of
Evidence of untrustworthiness of the source of perceiving the facts and relating them truthfully
information or the method for preparation, What is the presumption?
transmission, or storage of data Every child is presumed qualified to be a
See discussion on audio, photographic, video, and ephemeral evidence witness.
Under the Child Witness Rule (CWR), who
Testimonial evidence determines the competency of the child to testify?
The judge, who conducts a competency
Who can become witnesses?
examination ONLY when there is
o Those who can perceive, and in perceiving, can make their
challenge of a childs competency
perceptions known to others
Parties can only submit questions, but the
o Two steps:
judge has discretion
1. Perceiving
When is there a competency examination?
2. Making known this perception to others
Upon motion of a party or there is substantial
How can you make your perception known to another?
doubt regarding the childs ability as witness
o You must be able to communicate it
o Can a deaf-mute testify? A blind person? Who are present in the competency
examination?
Yes, as long as they can communicate.
o Judge and court personnel,
Who are disqualified?
counsels, guardian ad litem,

126
 support persons for child, defendant
(unless court deems it determinable
even without the defendant present)
Is competency dictated by the age of the child?
No. Mental maturity dictates, even prior to
the Child Witness Rule.
Who is a child witness under the CWR?
Accused
Victim
Witness
To what type of cases does it apply to?
Criminal and non-criminal proceedings
What is a comfort object/person?
One that puts the child at ease, like a doll or
a pillow
Can you ask leading questions to a child?
YES.
What is the special requirement?
o Give notice to the other party
o And the judge must approve it first
Can you use live-link TV?
Yes, so the child will not be able to see the
accused.
Ex. The child is in another room from the
judge/accused, etc.
When can there be a videotaped deposition of the
child?
1. Upon application of prosecutor, counsel,
or guardian ad litem
2. If the court finds that the child will not be
able to testify in open court at trial
When is it admissible in lieu of live
testimony?
o 1. As said, if the child for justifiable
reason cannot testify in open court
o 2. Usual exceptions in Rule 23
Who is a facilitator?
127
Appointed by the court to ask the questions
to the child as to not pressure/harass the
child
How are the documents in these proceedings
treated?
Considered confidential, not open to the
public
What is the sexual abuse shield rule?
The following evidence are inadmissible in
child sexual abuse cases:
o 1. Evidence offered to prove that
the alleged victim engaged in other
sexual behavior
o 2. Evidence offered to prove the
sexual predisposition of the alleged
victim
What is the exception?
o Other sexual conduct of the child to
prove that another person, and not
the accused, was the source of the
semen, injury, or other physical
evidence
o N.B. before offering this kind of
evidence, there must be a written
motion at least 15 days before trial.
This motion is served on all parties
and the guardian ad litem at least 3
days before hearing. N.N.B. this is
different from the usual 10/3 rule.
What is a protective order?
One that states that any videotape or
audiotape of a child part of the court record
may only be viewed by the parties, counsel,
expert witness, or guardian ad litem.
No such party may view it without written
affirmation that he has read the P.O. and
that in case of violation, he is subject to
contempt.
 Within 30 days from receipt, it must be
returned to the clerk of court, unless
extended.
What are the other protective orders?
1. Publication of childs identity is
contemptuous
2. Child can refuse to testify on personal
identifying information that can endanger his
physical safety or his familys
o Except if the court requires it
3. Destruction of videotapes and audiotapes
after 5 years from entry of judgment
4. All records of a youthful offender charged,
after the charges are dropped, are
considered confidential information
o 3. DQ by marriage (sec. 22)
What is prohibited here? What does it cover?
Any testimony, for or against the spouse,
during marriage
The other spouse must be a party
What matters are covered?
All matters
Even confidential matters?
o Yes.
o After dissolution of the marriage, it
can fall under sec. 24 (privileged
communication)
What are exempted?
1. Civil case between the parties
o Does this extend to ascendants
and descendants?
No.
2. Criminal case of one spouse against the
other
o Does this extend to ascendants
and descendants?
Yes.
128
3. When the marriage is beyond repair, and
there is no more marital harmony to preserve
Does it survive even after termination of the
marriage?
No. The DQ only lasts during marriage.
Are these DQs waivable?
Yes, by the affected spouse
What if both spouses are co-defendants to the
case?
As an exception, prosecution can call one
spouse as a hostile witness but his/her
testimony will only bind him or herself, and
not the other spouse who was not called.
When does this rule not apply?
o When there is charge of collusive
fraud between the parties because
inevitably, evidence against the
hostile witness-spouse will be used
against the other spouse
o 4. Dead mans statute
What is the DMS?
Party/assignors of parties/beneficiaries
cannot testify as to matters of fact occurring
before the death or insanity of the other party
What must be the nature of the action?
Claim against the estate of the deceased
person or a person of unsound mind
What about documentary evidence that will prove
the claim?
Not covered by DMS. This prohibition only
extends to oral testimony.
What is the rationale for this?
To avoid self-interested perjury
If death has sealed the lips of one party, then
it must also seal the lips of the other
Does DMS apply if the heirs are sued?
If in their representative capacity, then it
applies
 If in their personal capacity, it does not
If a corporation is a party suing against the estate
of the deceased, can the officers testify as to
matters of fact occurring before the death of the
person?
Yes, because they are mere employees of
the party, and not parties or assignors, or
beneficiaries
What if the representative of the deceased was
the one who brought suit?
DMS does not apply because this case is a
suit by the estate and not against it
Are negative facts barred by DMS?
No, because negative facts are those not
occurring before the death of the decedent
Can DMS be waived?
Yes.
o 5. Privileged communication:
See below
A. Marital privilege
o What are the requisites for marital privilege?
1. Spouses legally married
2. Communication is confidential and was made
during marriage
o What is the duration of the privilege?
During or even after the marriage
So it applies even after death or divorce
o What about dying declarations?
They are not covered, because they were
communicated with intent to be disclosed
o If a third party chanced upon the conversation, is it
covered by the privilege?
Classic rule: no, the privilege is lost
Modern rule: if the parties took proper precautions but
a third person still eavesdropped, the privilege is NOT
lost
When else is the privilege NOT lost?
1. The spouse him or herself colluded with
the third party
129
2. The spouse deliberately let the information
leak out
o If a child of sufficient age was present during
communication, is the communication privileged between
H and W?
No. The child is a strange to the marriage.
o Distinguish from marital disqualification:
DQ: covers adverse testimony; Privilege covers
privileged communication
DQ: only during marriage; Privilege during or after
marriage
DQ: one of the spouses is a party to the case;
Privilege even if neither spouse is a party
DQ: enjoyed by the affected spouse; Privilege either
spouse has it
B. Attorney-client
o What does it cover?
Any advice or communication in the course of or in
view to professional employment
o Differentiate in the course of and in view to?
In the course of already retained
In view to preparatory
o What is covered?
Communication by lawyer to client, and client to
lawyer
It does not suppress underlying facts to the
communication
o X asked advice from Atty. Y, asking what the requirements
are to form a corporation. Is this covered by the privilege?
No.
o X said that he had problems with his corporation, giving
particular details, names of incorporators, reasons,
details, and what are the requirements. Is this covered?
Yes, even if the lawyer are not eventually retained.
o Does it recognize agency and what does it imply?
Yes. The privilege extends to secretary, clerk, or
stenographer. That the information falls into their
hands does not affect the privileged nature of the
information.
o Does attorney-client extend to third parties? o What is the work product doctrine?
Yes, it can extend to the secretary, stenographer, or One party cannot inquire into the memoranda and
clerk. files of the opposing client unless there is necessity or
BUT not other third parties, where the privilege is lost justification.
upon having the information fall into their hands. C. Doctor-patient
o Can it be waived? o What are the requisites?
Yes. 1. Claimed in a civil case
o Note: if the relationship of the lawyer with the person is a 2. Person is authorized to practice medicine
business relationship, you cannot invoke the privilege. 3. Person acquired the info in his professional
o X communicates confidential information to Y, believing capacity
the latter to be a licensed lawyer when he in fact is not. It 4. Info is necessary for him to act in that capacity
is covered by the privilege? 5. Disclosure of the information would tend to blacken
Yes, as long as the belief is reasonable the clients reputation
o Does the privilege cover pre-existing documents not o Can you invoke this privilege in a criminal case?
prepared by the client turned over to the lawyer? No, even if it would blacken your reputation. The
No, because they already were not privileged in the privilege only covers civil cases.
hands of the client. Turning them over to the lawyer o Who is covered?
does not clothe these documents with privilege. Person must be a doctor of medicine, surgeon, or
What if the documents are prepared by the client obstetrician
and then turned over to the lawyer? What if he is an optometrist?
Covered by the privilege. No, because he/she is not a doctor of
o The client showed to the lawyer the place where he buried medicine
one of his victims. The lawyer checked the body and saw What if he is an ophthalmologist?
it, but did not touch it or report it to the authorities. The Covered
lawyer refused to disclose where the body is. Is this What about neurologist?
covered? Covered
Yes. Covered. What about psychologist?
o X disclosed to his lawyer that he plans to commit a crime. No, he must pursue further studies to be a
Is this covered by the privilege? doctor
No. The privilege does not cover communication as What about psychiatrist?
to a future crime. It only attaches to past crime. Covered
o Does the privilege cover identity of the client? Who is an obstetrician?
No, its not privileged communication. For pregnancy
What are the exceptions? Alternative medicine practitioners and
1. Disclosure of identity would be tantamount iridologists?
to implicating the client No.
2. Disclosure exposes him to civil liability o What is the key?
3. Identity of the client is the last remaining You must be a doctor of medicine.
link in the chain of testimony

130
 o The husband wanted to present the findings of the doctor o Who is the subject of the privilege?
on his spouse. Is the information covered by the The public office, as regards State secrets
privilege? o Is this waivable?
No. The husband is not authorized to practice Yes. It should be done by the court, after application.
medicine. E. Executive privilege
o Can the privilege be waived? o See Neri case.
Yes. o Is this waivable?
o What if the doctor is merely presenting hypothetical facts Yes, by the president.
and is acting as an expert witness, is this covered? F. Other privileges
No. o 1. Secrecy of bank deposits
D. Priest-Penitent o 2. Non-disclosure of trade secrets
o Requisites? o 3. Non-disclosure of who you voted for
1. Confession made to minister or priest in his o 4. Newsmans privilege
professional character, and in the course of discipline As to sources
enjoined by the practice of denomination o 5. Informers privilege
2. Confession is of penitentiary character As to identity
o A protestant religion does not require confession through You dont need to bring to the stand an informer
a priest. If a protestant approaches her pastor and asks G. Parental and Filial privilege
for a confession and discloses information in the course o What is this?
thereof, can the pastor invoke the privilege? Nobody may be compelled to testify against a direct
No. It should be enjoined by the religious institution to ascendant or descendant
which he/she belongs. o Is this waivable?
Just like a Catholic confessing to a nun not covered Yes.
by the privilege. o In a criminal case, no descendant may be compelled to testify
o What if a group requires a public confession before a against parents and grandparents, except:
crowd? When the testimony is indispensable in a crime
Not covered by the privilege. against the descendant or by one parent against the
o If confession was to simply ask for guidance from a other
minister, is it covered?
No. Admissions and confessions
o Should the penitent be a member of that religious
institution to which the priest belongs to? What is section 26?
No. The priest will not ask anyway. o The act, declaration, or confession of a relevant fact of a party
E. State Secrets may be given in evidence against him
o What are the requisites? o What does this cover?
1. Communication to public officer Extra-judicial admissions, because judicial admissions
2. Made to him in official confidence are already covered by the prior rule (what need not
3. When the court finds public interest would suffer by be proved)
disclosure Differentiate an admission from a declaration against interest:

131
Admission Declaration against interest Ex. Special power of attorney, articles of partnership,
Primary evidence receivable even Secondary evidence only when the etc.
if defendant is a witness declarant is unavailable as a witness o Vehicular collision other driver works for company, said
Competent only when declarant is a Competent in any action to which it Im sorry. I was in a hurry, delivering goods for the
party to the action, or someone is relevant (although the declarant is
company. You decide to file a case against the company.
identified in legal interest with him not a party to the action)
Is the admission admissible?
Need not have been considered The declarant knew, when it was
against his interest when made made to be against his interest Yes, the driver was an agent of the company: a)
declaration, b) during existence of agency, c) within
What is the rule on self-serving admissions? scope of authority, d) relationship is proven by other
o In general, they are inadmissible. This extends even to agents evidence
and diaries of the party. Admissions of a co-conspirator requisites?
o Exceptions? o 1. Act/declaration relates to the furtherance of the conspiracy
1. Part of res gestae This is common design
2. In the form of a complaint or exclamations of pain o 2. During the conspiracy itself
and suffering o 3. The conspiracy is established by independent evidence
3. Part of the confession offered by prosecution o X is one of the conspirators and he takes the witness
4. When the credibility of the party has been assailed stand. Do these requisites have to apply?
5. When offered by the opponent No. Remember, this rule only applies to extra-judicial
6. Waiver confessions. If there is a judicial admission where the
What is the general rule on a third party (res alios inter actas co-conspirator takes the stand, he can make such
rule)? declarations that bind the co-conspirators.
o As a general rule, the acts, declaration, or omission of a third o X and Y were planning to rob a bank. W said, X tried to
party cannot be used against you, except when it falls under recruit me to join in the robbery by telling me that Y is in
the exceptions (res alios inter actas) the plan and theyll make a million pesos. Admissible
What are exceptions? against both X and Y?
o 1. Agent or co-partner Yes. 1) Statement is made by X, a co-conspirator; 2)
o 2. Co-conspirator it was made during the course of the conspiracy, 3) it
o 3. Privies was in furtherance of the conspiracy
o 4. Co-owner, joint debtor, joint interest o X and Y already robbed the bank. One year later, W
What are the requisites for admission of co-partner or agent? testified: Y told me that he and X were the ones who
o N.B. these are more or less the same requisites in a robbed the bank last year. Admissible against both X
conspiracy and Y?
o 1. The admission should have been made during the existence Only against Y, but not X.
of the relationship o D was charged with importation of marijuana and
o 2. Done within the scope of the authority conspiracy to import marijuana. F told W (an undercover
Ex. if agent, it must be covered by the agency agent) that he just finished marijuana imports with D and
o 3. Common interest he didnt like the way D ran things, and that he would
o 4. The relationship is established by other evidence other than rather do business with W. Admissible?
the admission

132
 No, because it was not in furtherance of the alleged
conspiracy between F and D.
Admission of joint owner, joint debtor, or one with joint interest
requisites?
o 1. There is a joint interest
o 2. The act or declaration was made during existence of joint
interest
o 3. The act relates to the subject matter of joint interest
o N.B. common interest (ex. all are devisees in a will) is different
from joint interest
Admission of privies requisites?
o 1. Privity between the parties, where one derives title from the
other
o 2. Declaration made the when the privy held the property
o 3. It must have been made as to title over the property
o Give an example:
X sold land to Y. While X holds the title to the
property, he made statements as regards his title to
the land. When Y holds the land, the statements
made by X can be used against her.
o What about statements made by transferors after the
transfer?
In general, these are inadmissible against the
transferee.
What are the exceptions?
1. Made in the presence of the transferee
and the latter acquiesces or does not protest
2. Where there has been a prima facie case
of fraud established (e.g. fraud in the
transfer)
3. Where the evidence establishes a
continuing conspiracy to defraud the
conspiracy exists between vendor and
vendee
Do admissions of these third parties extend to court cases? Ex. Y
testified against X on the witness stand that it was X who was in
conspiracy with him.
o No, these rules do not extend to cases already in court,
because there is an opportunity to cross examine.
133
Is an offer of compromise admissible in evidence?
o In civil cases, an offer of compromise is not an implied
admission of liability it cannot be admitted as evidence
o In criminal cases, it is treated as an implied admission of
liability
o What is the exception for criminal cases?
1. When the law allows for compromise
2. Quasi-offenses
i.e. criminal negligence
o What about a plea of guilty later withdrawn or an
unaccepted plea of guilty to a lesser offense?
It is not admissible in evidence against the accused.
o What about tax violations with penal sanctions?
Yes, these can be compromised.
o Is extending offer for medical assistance to the victim an
implied admission?
No.
When is an offer to help admissible to establish
liability?
When the offer to help is accompanied by an
admission of liability.
o Can offer of compromise by relatives bind the person?
Only if the person had knowledge of it and did not
prevent his or her relatives.
o The JDR rule in criminal cases allows compromise where
(the court here in mediation offers compromise)?
Libel
Theft
Estafa
BP 22
Criminal negligence
o What is covered by the compromise?
Only the civil liability
But in practice, once you compromise the civil liability,
usually the prosecution is no longer interested
o Compare with admissions of liability:
An offer to settle when there is no controversy at the
time is not an offer of compromise but an admission
of liability
 Admission by silence
o What are the requisites?
1. Statement made in the partys presence or within
his/her observation
2. Fact would have naturally called for a reaction if not
true
3. To deny is proper under the circumstances
Ex. there were armed 5 men who were
speaking ill about X his silence may simply
mean that he is being prudent
4. Matter is within the partys knowledge
o X was making statements in the radio against Y, a public
official. If Y does not react to the radio caller, is this an
admission by silence?
No. See requisite #1 below.
Same with written letters.
o Does this apply to those under custodial investigation?
No. Admission by silence does not apply in this case
because it would violate the persons constitutional
rights.
Previous conduct as evidence and character as evidence
What is the general rule as to prior conduct?
o Generally not admissible.
o What are the exceptions?
To establish intent, knowledge, identity, plan, system,
scheme, habit, custom, or usage, and the like.
Mr. X and his group robbed BPI in Makati. X and his group were
also suspected of robbing BPI in Intramuros. He was caught, and
a case was filed against him. If there is a separate criminal case
involving the robbery in BPI Intramuros, can the facts surrounding
the Makati BPI robbery be appreciated?
o No, not to establish a different robbery. But you can use it to
establish any of the exceptions outlined above.
o Ex. The manner in which the robbery was conducted is the
same, showing a system.
Examples:
134
o INTENT ex. X charged for larceny of ring by substituting a
fake one for a real one: may admit the fact that the same
substitution occurred in two other stores where X was
examining as purchaser to negate honest mistake. // X
charged with larceny of purse: may admit the fact that she
asked a customer is this your purse? to show good intent.
o GUILTY KNOWLEDGE ex. X denied knowing the
combination of a safe which has been opened and whose
contents were stolen: may admit fact that X was seen
surreptitiously opening the safe before to show knowledge. // X
charged with uttering counterfeit money: may admit fact that X
tried to pay the same notes to three other persons to show
knowledge.
o IDENTITY Robbery case where 7 robbers had stripes on
their faces, making identification difficult. But one had
pockmarks on his face and a scar on his left eyelid. The fact
that the same marks were found on an individual robbing
another house that night can be used to establish identity.
o PLAN, DESIGN, OR SCHEME Ex. D on trial for killing C.
May admit evidence that A and B were similarly killed by D,
and an insurance policy named as beneficiary all four of them
in that order (A, B, C, D) so that D killing C would fit the grand
design of receiving insurance proceeds.
o HABIT OR CUSTOM If course of conduct in a prior dealing is
established as to render its continuance to the point in time in
the question, then admit evidence to show that he acted in
accordance with the habit.
Ms. Y married Mr. A. She obtained insurance. A died. She married
B. She obtained insurance. B died. She married C. She obtained
insurance. C almost died due to poisoning. Are the previous
deaths admissible?
o Yes, but only to establish intent.
What is the rule on unaccepted offer?
o An offer in writing to pay a sum of money or deliver a written
instrument/personal property, if rejected without valid cause, is
equivalent to actual production and tender
Character evidence:
o What is the general rule as to character evidence?
It is not admissible.
 o Why is character evidence generally inadmissible?
1. A person does not always act the same way
2. To prevent prejudice, and
3. To prevent multiplicity of issues
o N.B. Make sure you distinguish civil and criminal cases
o When is it applicable?
Only when there is a character trait in the offense
charged
Ex. for murder/homicide violence
Ex. for estafa dishonesty
Ex. for rape sexual perversity of accused
o For victim, chastity
o What offenses have no character traits?
Those covered by special laws;
Ex. BP 22
Ex. illegal possession of firearms
How to prove character evidence:
o 1. Personal opinion inadmissible
o 2. General community reputation admissible
o 3. Previous conduct inadmissible [generally]
Exceptions to general rule that character evidence is inadmissible:
o Criminal case:
1. Character of the accused:
Accused may prove GMC which is pertinent
to the moral trait involved in the offense
charged
Prosecution may only prove BMC of accused
which is pertinent to the moral trait involved
in the offense charged in rebuttal
2. Character of offended party
GMC or BMC of the offended party may be
proved if it tends to establish in any
reasonable degree the probability or
improbability of the offense charged
o Civil case:
Evidence of MC of a party in a civil case is admissible
only when pertinent to the issue of character involved
in the case
135
So can there be character evidence when
there is no issue of character in the case?
o No.
o 3. For witnesses (regardless):
Evidence of GMC of a witness is not admissible until
such character has been impeached.
Hearsay rule and exceptions
What is the hearsay rule?
o A witness may only testify as to matters within his personal
knowledge
What is independent relevant statement?
o When the statement is the fact of issue, or when the statement
is circumstantial evidence of the facts in issue.
o During Erap impeachment, his former Secretary Espiritu
was placed on the stand and was asked about matters he
conversed about with Estrada. He started talking, and
there was an objection that is was hearsay. Is it hearsay?
No, its not hearsay. The conversation actually
happened and he can testify as to the conversation
and what happened.
But as to the truthfulness of these statements, they
have to be established separately.
What are the exceptions?
o 1. Dying declaration
o 2. Declaration against interest
o 3. Act or declaration about pedigree
o 4. Family reputation or tradition regarding pedigree
o 5. Common reputation
o 6. Part of res gestae
o 7. Entries in the course of business
o 8. Entries in official records
o 9. Commercial lists, and the like
o 10. Learned treatises
o 11. Prior testimony
Declarations Reputation Entries
Dying declaration As to pedigree Course of business
Declaration against Common reputation Official record o Extends to declaration against pecuniary interest, proprietary
interest interest, criminal acts, etc.
Declaration about Commercial lists o Why is this reliable?
pedigree Because by human nature, nobody will make a
Res gestae Learned treatises
prejudicial statement against himself
Prior testimony
3. Act or declaration about pedigree
o What must be in issue?
[Declarations] The pedigree of a person, even if not directly as
long as it is relevant
1. Dying declaration o Requisites?
o Requisites 1. The declarant is dead/unavailable
1. The dying person is under the consciousness of his 2. Declarant related by birth or marriage to the person
impending death whose pedigree is in question
2. Declaration relates to the facts/circumstances 3. The relationship between the declarant and the
pertaining to the death person whose pedigree is in question is shown by
3. He should eventually die independent evidence
4. The recipient of the information should be 4. Declaration was made prior to the controversy
competent to testify So there is no motive to falsify
o Does this extend to civil cases? o Must the witness be related to the declarant?
Yes. No. He need not be.
As long as it pertains to the circumstances regarding But the relationship should be between the declarant
his death. and the person whose pedigree is in question
o There is a dying person on the floor and he calls X. He 4. Res gestae
told X to tell his wife to handle his bank account, tell his o What are the kinds of res gestae?
children to manage the properties, etc. Is this the proper A. Spontaneous statements
subject of a dying declaration? B. Verbal acts
No. It does not cover circumstances re: his death. o Requisites of spontaneous statements?
o What if he doesnt die? 1. Startling occurrence
It becomes part of res gestae 2. Spontaneous statements
o What if the dying declarant made an ante-mortem 3. Relating to the circumstances of the occurrence
statement, in writing, be presented in evidence? o What is to be testified on?
Yes, because this exception covers memoranda. His spontaneous statement
2. Declaration against interest o Why is this reliable?
o Requisites? No time to fabricate
1. The person is dead/unavailable After 24 hours, is it still a startling occurrence?
2. Made statement against his interest Depends on how startled the person still is.
3. Would not have made that statement had it not If he was able to go out malling already, etc.,
been true then there was time to fabricate.
o What are verbal acts?

136
 Statements made contemporaneous to an equivocal 1. There is controversy re: pedigree of any member of
act and characterizing it the family
Give an example of an equivocal act. 2. Reputation or tradition existed prior to the
X handed a wad of cash to Y. This can controversy
mean anything. 3. Witness testifying must be a member of the family
Give an example of a contemporaneous act of that person, by consanguinity or affinity
characterizing the equivocal act. Or proved by family bibles, rings, etc.
I am lending this to you. o What is reputation?
NOTE: If Y testified, its not hearsay because it was How other people perceive one to be.
told to him personally. If a third person who o Can reputation be wrong?
overheard it testified, this is when the exception Yes.
applies. This is different from character who one really is
5. Prior testimony/deposition of a witness o Who will testify?
o Requisites? A member of the family by marriage or consanguinity.
1. Witness is dead/unable to testify This is unlike declaration about pedigree.
2. Identity of parties o What else?
3. Identity of issues Family bibles, charts, rings, engravings, etc.
4. Opportunity to cross-examine in the prior case 2. Common reputation
o A. Public knowledge of more than 30 years
Dying Against int Pedigree Res Gestae Prior testi This has a partner provision in documentary evidence
Dead/unav Dead/unav Dead/unav Even if alive Dead/unav (ancient documents)
Facts re: Statement About Relating to Same issues Give an example of public knowledge of more
death against pedigree of startling testified on than 30 years.
interest person in Q occurrence
Knows hes Wouldnt Made prior During or Prior case There is a marker in the barangay disclosing
dying have said it if to near such between information on the founding of the barangay.
not true controversy startling same parties Sometimes it can border on history, which
occurrence will then become subject to judicial notice
Relationship Identity of o B. Reputation about marriage
by blood or parties How do you develop a reputation re: marriage?
marriage
When people perceive them to be married.
Independent
evidence of Ex. living in one house, with children, etc.
relationship Even if this is not true.
o C. Reputation as to moral character

[Reputation] [Entries]

1. Family reputation or tradition regarding pedigree 1. Entries made in the regular course of business
o Requisites? o Requisites?
1. The person is dead/unavailable

137
 2. Made the entry in a position to know the facts, in
professional capacity
3. Entries made at or near the time of transaction
4. Done in the regular course of business
o Who is ideally the person testifying?
The one who actually made the entries. This
exception only applies if he/she is dead or unable to
testify.
o Who will then testify on his/her behalf if this occurs?
Person who is also in a position to know the facts
2. Entries in official records
o Requisites?
1. Made by public officer or person enjoined by law to
make entry
2. Made in performance of duty
3. Had sufficient knowledge of the facts, personally or
through official information
o Does the official have to be dead/unavailable?
No.
o How do you use this provision?
Secure a certified true copy, then you identify it and
present it in court
When do you present the original only?
If there is issue as to its genuineness
o Reason behind this provision?
As to not waste the time of the public official
3. Commercial lists
o Requisites?
1. Contained in published compilation
2. Generally relied upon by these persons
3. Statements are matters of interest to these persons
engaged in the occupation
o Why can you use this listing?
It is used by the members of the profession and it is
relied upon
o How do you use this?
Just present the commercial list, no need to present
the writer
o Give examples
138
SCRA (which is not an official publication, but used
and relied upon)
Buy and Sell paper NO. Because it is used, but
not reliable.
Stock Market listings
4. Learned treatises
o Covers history, science, law, and the arts ONLY
o So it wont cover billiards, or whatever
o How do you present?
1. Court takes judicial notice that the writer is an
expert recognized in his profession
2. Bring in an expert witness to testify that the writer is
an expert in his profession
Opinion rule
What is the opinion rule?
o It means that only an expert can give an opinion. An ordinary
witness cannot normally give an opinion.
What can an expert testify on?
o Skill, knowledge, expertise, or training
Is an academic degree required?
o No. Just the special skill, knowledge, expertise, or training.
Unless, of course, the knowledge or skill requires an academic
degree.
There are two kinds of experts:
o 1. Expert with personal knowledge of the facts
Ex. medico-legal officer who examined a dead body
o 2. Expert with no personal knowledge, only hypothetical facts
Can an ordinary witness give an opinion?
o General rule: no.
o Exceptions:
1. Handwriting of which he has sufficient familiarity
2. Identity of which he has adequate knowledge
Not required to know the name,
relationships, etc. Just as long as you can
sufficiently identify the person.
3. Mental sanity of person with whom you are
acquainted with
 4. Impressions on emotion, behavior, condition, 2. Performing his official function
appearance o 3. When a court renders a decision:
It acted within its jurisdiction
Burden of proof and presumptions It passed upon all questions
o 4. On filiation
Distinguish burden of proof from burden of evidence? When a child is born within 300 hundred days of
o Burden of proof sticks with the party from the beginning until termination of the first marriage AND before 180 days
the end. after the solemnization of the second marriage it is
Ex. Breach of contract for damages burden starts considered to be conceived from the first marriage
with the plaintiff and ends with the plaintiff When a child is born within 300 hundred days of
o Burden of evidence shifts termination of the first marriage AND after 180 days
What is the difference between conclusive and disputable after solemnization of the second marriage it is
presumptions? considered to be conceived from the second marriage
o Conclusive presumptions cannot be rebutted What if the child is born after 300 days after
What are the conclusive presumptions? dissolution of the marriage?
o 1. Estoppel in pais There is no presumption
This is regular estoppel Whoever alleges legitimacy or illegitimacy
Requisites: must prove it
1. Representation o 5. Absence
2. Lack of knowledge in the other party What does absence for 7 years establish?
3. Reliance Death, for all purposes EXCEPT succession
Similar estoppel: When does succession open?
Estoppel by silence o After 10 years
Estoppel as to question of jurisdiction What if the person is over 75-years old?
o 2. Estoppel by deed After 5 years is enough to establish death
What does deed mean? What are the exceptional circumstances that
It means a written document establish death in a shorter period?
This has a very limited application: only covers a 1. Vessel or aircraft goes missing and he
landlord-tenant relationship was not heard of for 4 years
Upon signing the deed, it is a recognition of the 2. Person took part in armed hostilities and
landlords title. You can only challenge it after. missing for 4 years
What are common examples of disputable presumptions? 3. Person under danger of death in other
o 1. Presumption of innocence circumstances and is missing for 4 years
When does this arise? What is the rule for marriage?
1. Only when charged of an offense Can contract subsequent marriage after
2. And one is an accused in that case absence for 4 years
o 2. Presumption of regularity What if the spouse disappeared under
When does this arise? exceptional circumstances?
1. There is a public officer

139
 o 2 years of absence is enough
Is declaration of presumptive death of the
spouse to contract subsequent marriage
a special proceeding?
o No.
o This is a summary procedure under
the Family Code
o 6. Survivorship for those who died due to calamity, wreck,
battle, or conflagration
Follow what rule?
Strength and age of the sexes
For what purpose can this be used?
ANY purpose except succession
Allowed for:
Insurance
Survivorship agreements
Conduct of proceedings in the courts
What is required before witnesses testify?
o Place the witness under oath or affirmation
o Oath imploring divine guidance
o Affirmation for those who dont believe in God
Whose duty is it to receive evidence?
o The judge
Can delegate to the clerk of court in certain instances
o How is it recorded?
1. By stenographer
2. By stenotype
3. By any other means of recording found suitable by
the court
What questions can you NOT ask to witnesses?
o 1. Immaterial, irrelevant, impertinent questions
o 2. Questions that expose him to criminal liability violates right
against self-incrimination
What if its only exposing him to civil liability?
You can ask the question
But not if it exposes him to criminal penalty
o 3. Degrading or humiliating questions
What is direct examination?
o Examination-in-chief of the prosecution presenting to the
witness facts relevant to the issue
o What is examination-in-chief?
One that establishes what the prosecution seeks to
prove
Evidence-in-chief is what your witness will testify on in
direct examination. So if you have eight witnesses,
you have eight evidences-in-chief
What is cross examination?
o 1. Test the accuracy and truthfulness of witness testimony
o 2. To elicit all information from the witness
o What matters can be raised, in general?
Matters touched upon on direct examination or
connected therewith and to elicit all important facts
bearing upon the issue
So this is more on accord with the English rule, rather
than the American rule. Thus, matters are not limited
to those raised on direct.
o When does cross examination become a mere privilege?
When the original cross-examination has ended and
the witness is simply recalled
What is redirect examination?
o Allow a witness to explain or supplement matters raised in
cross-examination
o May the courts allow questions on matters not raised on
cross?
Yes, in their sound discretion.
What is re-cross examination?
o To examine matters raised in re-direct
o May the courts still allow questions on matters not raised
on redirect?
Yes, again in their sound discretion
What is the rule on recalling witnesses?
o It cannot be done without leave of court, which exercises
discretion based on the interests of justice
What are leading questions?
o Questions which suggest to the witnesses the answer which
the examining party desires

140
 Are leading questions allowed? o May the other party still cross-examine the hostile
o As a rule, not allowed in direct examination. witness?
o When else can you ask leading questions? Yes.
1. Cross examination What are the two kinds of memorandum?
2. On preliminary matters o 1. Present recollection revived
Ex. Mr. X, you said a while ago you were an Memorandum written by him or under his direction:
employee of the petitioner corporation. Are A. When the fact occurred or immediately
you an employee? after
3. Witness is ignorant, child of tender years, feeble- B. Any other time when it was still fresh in
minded, or deaf-mute his memory
And there is some difficulty to get direct and o 2. Past recollection recorded
intelligible answers Witness has no recollection but states that the writing
4. Unwilling or hostile witness correctly reflected the transaction when made
N.B. There must be a court declaration to o When do these apply?
make a person a hostile witness In both cases he knew, he was in charge, or he
Who is a hostile witness? prepared it. Thats why he can testify. So even if
o 1. Adverse interest there is no independent recollection, he can testify.
o 2. Unjustified reluctance to testify o What is the purpose?
o 3. Misled the party into calling him To refresh his memory
5. Adverse witness adverse party or o What is the evidence?
officer/director/managing agent of juridical person If the witness has independent recollection, then the
who is an adverse party testimony is the evidence.
What are the two ways to impeach the witness? If he has no independent recollection, the
o 1. Prior inconsistent statement memorandum itself is the evidence. But it must be
o 2. Contradictory evidence taken with caution.
N.B. cannot impeach through contradictory evidence What is the rule of completeness?
on mere collateral matters o When a party gives as evidence part of an act, writing,
o 3. Reputation of the witness for honesty/truth/integrity of the declaration, conversation, or record, the other party may
witness is bad inquire into the whole of that evidence.
o 4. Producing court record for conviction for an offense o What if it is one letter in a chain of letters?
May a party impeach his own witness? Admitting one necessarily allows the other letters in
o As a rule, no. the chain to be admitted
o Except when the witness is unwilling, hostile, or the adverse o What if part is privileged?
party and the examining party has to have the court declare It is waived.
him as a hostile witness
o What is the only evidence that cannot be used in Authentication of documents
impeaching?
N.B. Whether public or private, the document must be authenticated.
Evidence of bad character (remember, this only
What are the kinds of public documents?
applies on rebuttal)

141
 o 1. Written official acts or records of sovereign authority o 1. Witness believes it to be the handwriting of such person
Whether Philippines or other country because:
o 2. Documents duly acknowledged before a notary public A. he saw the person write it or
except wills B. he has seen writing purporting to be his, upon
Not just notarized, but must be acknowledged which the witness has acted upon or was charged,
Except last wills and testaments thus acquiring knowledge of such
o 3. Private documents recorded in a public office o 2. Comparison by the witness or the court with:
Ex. affidavit of adverse claim in a R.O.D. A. other writing admitted or treated as genuine by the
What are private documents? party against whom the evidence is offered or
o All other documents not falling under the prior three B. proved to be genuine by the judge
What is the distinction? What private documents need not be authenticated?
o Public documents are admissible without further proof of due o 1. Ancient document
execution and genuineness; private writings must be proved as o 2. Admitted by the adverse party
to authenticity and due execution o 3. Immaterial
o Public documents bind even third persons as evidence; private o 4. Document need only be identified
documents only bind the parties as evidence What is an ancient document requisites?
How do you authenticate acts of sovereign authority? o 1. Document existing for at least 30 years
o Certified true copy or official publication o 2. Unblemished
o If it is from a foreign country? o 3. In the custody of one who must be with possession over it
Certification from foreign service officer What is alteration?
How do you authenticate a duly acknowledged document before a o When there is one, you have to account for it
Notary Public? 1. There is consent
o Certificate of acknowledgement of the document itself 2. There is knowledge
o If by chance, your copy is lost, where do you go? 3. Did not change the meaning
You could get a certified true copy from the RTC who 4. Properly or innocently made
commissioned him to notarize documents (he submits Can you impugn judicial records?
the books to the RTC) o Yes.
How do you authenticate private documents recorded in a public o How?
office? 1. Want of jurisdiction
o Can be proved by original record or a certified true copy 2. Collusion
o Can there be a certificate of no record? 3. Fraud
Yes.
How do you authenticate a private document? Offer of evidence
o 1. Genuineness of the handwriting by anyone who saw the
What is the rule on formal offer?
document executed or written
o 2. Evidence of genuineness of the signature/handwriting of the o Evidence must be offered, or else the court will not consider it
maker as evidence
How is genuineness of handwriting proved? When is it made?

142
 o After the documents as marked, and all the witnesses are
presented
Is offer of testimonial evidence the same?
o Its not, because its made before you present the witness
When is objection made?
o Evidence offered orally: made immediately after offer is made
o Evidence offered in writing: within 3 days after notice of offer,
unless court allows different period
o Question propounded in oral examination: as soon as ground
becomes reasonably apparent
o FOR ALL: must specify grounds for objection
What is a continuing objection?
o Objection of the same character after the grant or denial of the
same objection
o A one-time statement covering objections of the same
character
o Does it have to be ruled upon by the court?
No.
When does the court rule on the objection?
o Immediately after it was made. No need to state the reason for
overruling or sustaining it.
Except if the objection was on two grounds; court
must state which ground was sustained.
o What is the exception?
If the court needs reasonable time to decide. But the
ruling must still be given during trial to give the party
who posed the objection to meet the situation
o What if the evidence is erroneously rejected?
Can be ground for new trial.
UNLESS it would not have changed the decision.
What is the rule on striking out answers?
o It applies when the witness answered the question even before
the adverse party had the chance to object
And the objection is meritorious
o Upon motion, what answers can the court strike out?
1. Incompetent
2. Irrelevant
3. improprer
What is proffer of evidence?
143
o This is tender of excluded evidence
o So for instance an excluded witness can still be presented
through an affidavit showing her qualifications and the
substance of her testimony so it can be considered on
appeal
Weight and sufficiency of evidence
What is the equipoise rule for preponderance of evidence?
o When there is equipoise, the party with the burden of proof
fails
When the evidence of one side is stronger than the other, does it
mean there is already preponderance of evidence?
o No. One must still rely on the strength of ones case rather
than weakness of the other.
Is an extra-judicial confession sufficient ground to convict a
person BRD?
o No. It must be corroborated by evidence of corpus delicti.
o But plea of guilty in open court is sufficient.
What is needed for administrative cases in QJAs?
o Substantive evidence
o Where else does this standard apply?
Investigations in the workplace
QJAs that proceed like the NLRC
Circumstantial evidence
o Can it be a basis of conviction?
Yes
There should be more than one circumstance
And when taken together, they form proof beyond
reasonable doubt
o Can it be the basis of identification?
Yes
Can the judge stop the presentation of evidence?
o Yes, if the judge feels there is no more need for additional
evidence;