EVIDENCE

FREQUENTLY ASKED QUESTIONS (FAQS) - outline

• ADMISSIBILITY – 11 times
• HEARSAY – 11 times
• WITNESS – 6 times
• PRIVILEGED COMMUNICATION – 5 times
• JUDICIAL NOTICE – 3 times
• ADMISSIONS & CONFESSIONS – 3 times
• DNA EVIDENCE – 3 times
• ELECTRONIC EVIDENCE – 3 times
• OFFER OF EVIDENCE – 2 times

Admissibility
asked in 1997, 1998, 2002, 2003, 2004, 2005, 2006, 2009, 2010, 2012, and 2013

Requisites
1. Relevance
 Evidence is admissible when it is relevant to the issue (Rule 128, Sec. 3).
 Evidence must have such a relation to the fact in issue as to induce belief in its existence or non-
existence (Rule 128, Sec. 4).
 Relevance depends on the factum probandum, or the ultimate fact sought to be proved.
 Relevance is determined by rules of logic and human experience.

2. Competence
 The evidence must not be excluded by law or by the Rules of Court (Rule 128, Sec. 3).
 All facts having rational probative value are admissible unless some specific rule forbids their admission.
 Competence is an affair of logic and law.

Exclusionary Rules in the 1987 Constitution

 The right against unreasonable searches and seizures (Art. III, Sec. 2).
 The right to privacy of communication and correspondence Art. III, Sec. 3).
 The rights of a person under custodial investigation (Art. III, Sec. 12).
 The right against self-incrimination (Art. III, Sec. 17).

Exclusionary Rules in the 1987 Constitution

 Sec. 21, NIRC – documents required by law to be stamped
 R.A. No. 4200 – Anti-Wiretapping Act (secretly overhear/intercept communications)

Exclusionary Rules under the Rules of Court

 Best Evidence Rule
 Parole Evidence Rule
 Hearsay Rule

 Relevance of evidence and collateral matters (Rule 128, Sec. 4)

 Multiple Admissibility
 Conditional Admissibility
 Curative Admissibility
 Direct and Circumstantial Evidence
 Positive and Negative Evidence
 Competent and Credible Evidence

Object (Real) Evidence

 Those addressed to the senses of the court (Rule 130, Sec. 1)
 When an object is relevant to the fact in issue, it may be exhibited to, examined or viewed by the court
 Categories of object evidence
o Unique objects
o Objects made unique
o Non-unique objects
o Demonstrative evidence – representation of an object (photos, recordings, simulations)
 o Autoptic preference (Balingit v. COMELEC, G.R. No. 170300, 9 February 2007)

Chain of Custody In relation to the Comprehensive Dangerous Drugs Act of 2002

 Chain of Custody Rule (Sec. 21, R.A. 9165)
o Cases:
 People v. Romy Lim, G.R. No. 231989, September 4, 2018 (Court’s Mandatory Policy)
1. In the sworn statements/affidavits, the apprehending/seizing officers must state their compliance
with the requirements of Section 21 (1) of R.A. No. 9165, as amended, and its IRR.
2. In case of non-observance of the provision, the apprehending/seizing officers must state the
justification or explanation therefor as well as the steps they have taken in order to preserve the
integrity and evidentiary value of the seized/ confiscated items
3. If there is no justification or explanation expressly declared in the sworn statements or affidavits,
the investigating fiscal must not immediately file the case before the court. Instead, he or she must
refer the case for further preliminary investigation in order to determine the (non) existence of
probable cause
4. If the investigating fiscal filed the case despite such absence, the court may exercise its discretion to
either refuse to issue a commitment order (or warrant of arrest) or dismiss the case outright for lack
of probable cause in accordance with Section 5,40 Rule 112, Rules of Court.

 Strict compliance with Sec. 21 can be disregarded as long as the evidentiary value and integrity of the illegal
drug are properly preserved [People v. Fermin and Madayag Jr. G.R. No. 179344, 3 August 2011]
 Testimony on perfect chain not required [People v. Quiamanlon, G.R. No. 191198, 26 January 2011]
 Presentation of confidential informant not indispensable [People v. Andres, G.R. No. 193184, 7 February
2011]
 Poseur buyer has to be presented when none of the buy-bust team directly witnessed the transaction
[People v. Amin, G.R. No. 215942, 18 January 2017]
 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 [People v. Presas, G.R. No. 182525, 2 March 2011]
 Presumption of regularity, standing alone, cannot defeat the presumption of innocence [People v. Martin,
G.R. No. 193234, 19 October 2011, People v. Barte, G.R. No. 179749, 1 March 2017]

 Burden of Proof v. Burden of Evidence

 Negative allegations
 Equipoise or Equiponderance Doctrine

Documentary Evidence
 Definition [Rule 130, Sec.2]
 Requisites:
i. The document must be relevant;
ii. The evidence must be authenticated;
iii. The document must be authenticated by a competent witness; and
iv. The document must be formally offered in evidence

 Original document – applicable when the subject of inquiry is the contents of a document [Rule 130, Sec. 3]
 When Best Evidence Rule does not apply
o to proof of facts collateral to the issues
o when a party uses a document to prove the existence of an independent fact [Lee v. People G.R. No.
159288, 19 October 1 2004]
 Courts are not precluded to accept in evidence a mere photocopy of a document when no objection was raised
when it was formally offered [Spouses Tapayan v. Martinez, G.R. No. 207786, 30 January 2017]

Originals of a document (Rules on Evidence)

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)
Originals of a document (Rules on Electronic Evidence)
o If electronic document is a printout or output readable by sight or other means, shown to reflect the data
accurately. (Rules on Electronic Evidence, Sec. 1)
o 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)

Note: copies or duplicates shall not be admissible to the same extent as the original if:
o a genuine question is raised as to the authenticity of the original; or
o in the circumstances it would be unjust or inequitable to admit the copy in lieu of the original (sec. 2)

Introduction of Secondary Evidence

 When original is unavailable [Rule 130, Sec. 5]
 When original is in adverse party’s custody or control [Rule 130, Sec. 6]
 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]).
 When original is a public record [Rule 130, Sec. 7]

 Parol Evidence Rule

 When applicable [Rule 130, Sec. 9]
 When parol evidence can be introduced Rule 130, Sec. 9, par.1]
 Parol evidence v. Best Evidence Rule
 Authentication
o When private writing requires authentication [Rule 132, Sec. 20, par. 1, 2]
o When not required [Rule 132, Sec. 21]
 Handwriting – how to prove genuineness
o Testimony
 Witness 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)
o Comparison [Rule 132, Sec. 22]
o No preference rule [Domingo v. Domingo, G.R. No. 150897, 11 April 2005]
o Opinions of handwriting experts not binding [Bautista v. Castro, G.R. No. 61260, 17 February 1992, 206
SCRA 305, 312]
 Public Documents as evidence [Rule 132, Sec. 23]
 Proof of official Records in Rule 132, Sec. 19(a) may be evidenced by
o An official publication thereof
o By a copy attested by the officer having the legal custody of the record, or by his deputy
 Attestation requirements [Rule 132, Sec. 25]
o Statement of correctness
o Official seal
 For foreign public documents [Rule 132, Sec. 24]
o Certificate of custody
o Authentication
 Public record of a public document [Rule 132, Sec. 27]
o Original record
o Copy of the original record, attested by the legal custodian of the record, with an appropriate certificate
that such officer has the custody
 Proof of lack of record [Rule 132, Sec. 28]
 How a judicial record is impeached [Rule 132, Sec. 29]
o want of jurisdiction in the court or judicial officer;
o collusion between the parties; or
o fraud in the party offering the record, in respect to the proceedings
 Proof of notarial documents [Rule 132, Sec. 30]
  How to explain alterations in a document [Rule 132, Sec. 31]
o made by another, without his concurrence;
o was made with the consent of the parties affected by it or was otherwise properly or innocent made; or
o that the alteration did not change the meaning or language of the instrument
 Documentary evidence in unofficial language
o Article XIV, Sec. 7, 1987 Constitution - the official languages are Filipino and, until otherwise provided by
law, English, with the regional languages as auxiliary official languages in the region

Liberal Construction of the Rules of Evidence

 Rule 1, Sec. 6 of the Rules of Court
 The liberality in the interpretation and application of the rules applies only to proper cases and under justifiable
causes and circumstances.[Alamayari v. Pabale, G.R. No. 182924, 24 December 2008]

Quantum of Evidence
a. Proof beyond reasonable doubt
b. Preponderance of evidence
c. Substantial Evidence
d. Clear and Convincing evidence

Power of the Court to stop further evidence [Rule 133, Sec. 6]

Evidence on Motion [Rule 133, Sec. 7]

Questions and Answers

Testimonial Evidence
 Qualifications of a witness (Rule 130, Sec. 20)
 Competency v. Credibility of a witness
Hearsay
Asked in 1998, 1999, 2001, 2002, 2003, 2004, 2005, 2007, 2009, 2010, and 2012

Hearsay –
 Meaning
 Two concepts
o Second hand information
o Personal knowledge but adverse party is not given the opportunity to cross-examine
 Independently Relevant Statements [Republic v. Heirs of Alejega, G.R. No. 146030, 3 December 2002]
 Reason for exclusion – it is not subject to tests which can ordinarily be applied for the ascertainment of the truth
of the testimony
 Exceptions:
o Dying declaration [Rule 130, Sec. 37]
o Declaration against interest [Rule 130, Sec. 38]
 Admissions v. Declaration against interest
o Act or declaration about pedigree [Rule 130, Sec. 39]
o Family reputation or tradition regarding pedigree [Rule 130, Sec. 40]
o Common reputation [Rule 130, Sec. 41]
o Part of Res Gestae [Rule 130, Sec. 42]
 Spontaneous statements
 Contemporaneous statements or verbal acts (Rule 130, Sec. 42)
o Entries in the course of business [Rule 130, Sec. 43]
o Entries in official records [Rule 130, Sec. 44]
o Commercial lists and the like [Rule 130, Sec. 45]
o Learned treaties [Rule 130, Sec. 46]
o Testimony or deposition at a former trial [Rule 130, Sec. 47]

Opinion Rule
 General Rule: Opinion of a witness is not admissible [Rule 130, Sec. 48]
 Exceptions
o Opinion of expert witness
o Opinion of ordinary witness
Charter Evidence
 General Rule: Character evidence is not admissible [Rule 130, Sec. 51]
 Exceptions:
o Criminal Cases
 Accused – his good moral character
 Prosecution – bad moral character of accused, only in rebuttal
 Offended party – character of offended party, if it tends to establish probability or improbability
of offense charged
o Civil Cases – only when pertinent to the issue of character
o Note: Evidence the good character of a witness is not admissible until such character has been
impeached (Rule 130, Sec. 51)
 Rape Shield Rule [R.A. No. 8505, Sec. 6]
o 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
Bar Q&A

Disqualification of Witnesses
a. By reason of mental capacity or immaturity [Rule 130, Sec. 21]
 The child may still be a witness as long as the following are shown:
i. capacity of observation;
ii. capacity of recollection; and
iii. capacity of communication [People v. Mendoza, G.R. No. 113791, 22 February 1996]
 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
[People v. Maceda, G.R. No. 138805, 28 February 2001]

b. By reason of marriage [Rule 130, Sec. 22]

 General Rule: During their marriage, spouses may not testify for or against the other without the
consent of the affected spouse
 Exceptions
i. In a civil case by one against the other
ii. A crime committed by one against the other or the latter’s direct descendants or ascendants
 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 timely object is tantamount to a waiver [People v. Pansensoy,
G.R. No. 140634. 12 September 2002]
 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]
 Disqualification does not apply in case of estranged spouses [Alvarez v. Ramirez, G.R. No. 143439, 14
October 2005]

c. By reason of death or insanity of adverse party [Rule 130, Sec. 23]

 Dead Man’s Statute or Survivor’s Disqualification Rule
 Where applicable
i. 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
ii. against a person of unsound mind, upon a claim or demand against the estate of such person of
unsound mind
 To whom or when not applicable
i. Ordinary witnesses [Bajenting v. Bañez, G.R. No. 166190, 20 September 2006]
ii. Officers and/or stockholders of a corporation [Lichauco v. Atlantic Gulf, G.R. No. L-2016, 23
August 1949]
iii. Imputation of fraud against deceased was established beyond all doubt [Ong Chua v. Carr, 53
Phil. 975]
iv. 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).
v. When the survivor's testimony refers to a negative fact (Mendezona v. Vda. de Goitia, 54 Phil.
557)
 vi. When the survivor's testimony is favorable to the deceased (Icard v. Marasigan, 71 Phil. 419).
vii. Testimony on transactions with agent of deceased or incompetent party (Goni, et al., v. Court of
Appeals, et al., 144 SCRA 231).

 How protection of the dead man’s statute is waived

1. By not objecting to plaintiff's testimony on prohibited matters (Marella v. Reyes, 12 Phil. 1).
2. By cross-examining the plaintiff on prohibited matters. (Tongco v. Vianzon, 50 Phil. 698).
3. By calling witnesses to testify on prohibited matters. (Arroyo v. Azur, 76 Phil. 493).
4. When the plaintiff's deposition is taken by the representative of the estate or when counsel for the
representative cross-examined 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 v. Marital Disqualification Rule
Privileged Communication
asked in 1998, 2000, 2004, 2006, and 2010

A. Marital Privilege Rule

o Scope: during or after the marriage [Rule 130, Sec. 24(a)]
o Waiver
o Failure to object to presentation
o Any conduct that may be construed as implied consent [Lacurom v. Jacoba, A.C. No. 5921, 10 March
2006]
o Spousal Immunity Rule v. Marital Privilege Rule

B. Attorney-Client Privilege Rule [Rule 130, Sec. 24(b)]

o Persons covered:
o The attorney
o 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
o Client may waive the protection
o The Regala Doctrine [Regala v. Sandiganbayan, G.R. No. 105938, 20 September 1996]
o General Rule: A lawyer may NOT invoke the privilege and refuse to divulge the name or identity of his
client
o Exceptions:
 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
 When disclosure would open the client to liability
 When the name would furnish the only link that would form the chain of testimony necessary to
convict

C. Physicial-Patient Privilege [Rule 130, Sec. 24(c)]

o “Professional capacity” - when the physician attends to the patient for curative, preventive, or palliative
treatment.
o Exception:
Waiver – express or implied (example: Rule 28, Sec. 4)
o 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)
o What is protected is the tenor of the consultation, not the number of times the patient consulted with his
doctor [Lim v. C.A., supra]

D. Minister/Priest – Penitent Privilege [Rule 130, Sec. 24(d)]

E. State Secrets Rule [Rule 130, Sec. 24(e)]
F. Parental and Filial Privilege Rule [Rule 130, Sec. 25, Family Code, Article 215]
G. Newsman’s Privilege – publisher cannot be compelled to reveal the source of any news, information in the
publication unless the Congress finds that such revelation is demanded by the security of the State [Shield Law]
H. Labor Code Art. 233 – statements at conciliation proceedings
I. Privilege under Alternative Dispute Resolution (ADR Laws) [R.A. No. 9285, Sec. 9(a),(b), Sec. 23]

Examination of a Witness
Rights of a Witness [Rule 132, Sec. 3]
Obligations of a witness
o Testify under oath or affirmation [Rule 132, Sec. 1]
 o answer questions, although his answer may tend to establish a claim against him (Rule 132, Sec. 3, par.
1)
o A witness must answer to the fact of his previous final conviction for an offense (Rule 132, Sec. 3, par. 5)

Order in the examination of an individual witness [Rule 132, Sec. 4]

a. Direct examination (Judicial Affidavit Rule, A.M. No. 12-8-8-SC)
b. Cross Examination [Rule 132, Sec. 5, Sec. 12]
o A fundamental right
o A personal right
o Note: if there is lack of cross-examination – the uncompleted testimony should be stricken from
the record (Bachrach Motor Co., Inc., v. Court of Industrial Relations, 86 SCRA 27)
c. Re-direct examination [Rule 132, Sec. 6]
d. Re-cross examination [Rule 132, Sec. 7]
e. Recalling the witness [Rule 132, Sec. 9]

Role of the judge:

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)

Retraction
A retraction does not necessarily negate an earlier declaration. 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)

Leading question [Rule 132, Sec. 10]

 General Rule: A leading question is not allowed
 Exceptions:
o On cross examination;
o On preliminary matters;
o 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;
o Of an unwilling or hostile witness; or
o 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

Misleading Question [Rule 132, Sec. 10]

 Definition: 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: not allowed
 Exceptions: None

Methods of impeachment of adverse party’s witness [Rule 132, Sec. 11]

Exception: hostile, adverse party, involuntary witnesses [Rule 132, Sec. 12]
How the witness is impeached by evidence of inconsistent statements (laying the predicate) [Rule 132, Sec. 13]
• Before a witness can be impeached by evidence that he has made at other times statements inconsistent with his
present testimony:
1. the statements must be related to him, with the circumstances of the times and places and the persons
present;
2. he must be asked whether he made such statements, and if so, allowed to explain them; and
3. if the statements be in writing, they must be shown to the witness before any question is put to him
concerning them
Evidence of the good character of a witness is not admissible until such character has been impeached (Rule 132, Sec.
14)

Judicial Affidavit Rule [A.M. No. 12-8-8-SC]

 judicial affidavits of witnesses shall take the place of their direct testimonies (Sec. 2)

Rule on Examination of a Child Witness [A.M. No. 004-07-SC]

  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)
 “Child Witness” [Sec. 4(a)]
o Below age of 18 at the time of giving testimony
o Over 18 but is found by the court 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

 Every child is presumed qualified to be a witness (Sec. 6)

 Competency of a child witness (Competency Examination, Sec. 6, (a), (b))
o Persons allowed at competency examination [Sec. 6(c)]
 The judge and necessary court personnel;
 The counsel for the parties;
 The guardian ad litem;
 One or more support persons for the child; and
 The defendant, unless the court determines that competence can be fully evaluated in his
absence
 Conducted only by the judge. But counsel for the parties can submit questions to the judge that he may, in his
discretion, ask the child [Sec. 6(d)]
 Developmentally appropriate questions (Sec. 6[e])
 Continuing duty to assess competence (Sec. 6 [f])
 The examination of a child witness presented in a hearing or any proceeding shall be done in open court (sec. 8)
o 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
o 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

 Live-link TV testimony of a child witness

o 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
 Videotaped deposition of a child witness
o 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
 Hearsay exception in child abuse cases
 Sexual Abuse Shield Rule [Sec. 30]
o The following are inadmissible:
 Evidence offered to prove that the alleged victim engaged in other sexual behavior
 Evidence offered to prove the sexual pre-disposition of the alleged victim
o Exception:
 Instances of sexual behavior by alleged victim to prove that a person other than accused was the
source of semen
 Protective Orders (Sec. 31)
o Tapes may be viewed only by parties, their counsel, their expert witness, and the guardian ad litem
o No tape or portion thereof shall be divulged by any person mentioned (in the previous line) to any
person except as necessary for the trial

Bar Q&A
1. One day examination of witness rule
2. Most important witness rule
Judicial Notice
asked in 1997, 2005, and 2012

What need not be proved

 Facts which a court shall or may take judicial notice of (Rule 129, Secs. 1 and 2);
 Judicial admissions (Rule 129, Sec. 4);
 Conclusive presumptions;
 Disputable presumptions not disputed;
 Res Ipsa Loquitur (Latin for "the thing or the transaction speaks for itself“)

 When Hearing is necessary (Rule 129, Sec. 3)

 o 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.
o 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.

Presumptions
 Presumptions of Law v. Presumptions of Fact
 Conclusive presumptions [Rule 131, Sec. 2 (a), (b)]
 Disputable presumptions [Rule 131, Sec. 3]

Judicial Admissions
Asked in 1998, 2006, 2008, 2009, AND 2011

Judicial admission [Rule 129, Sec. 4]

 Contradicted only by showing that it was made through palpable mistake or that no such admission was made
Examples:
 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 [Rule 118, Sec. 4]
o Note: admission must be reduced in writing and signed by accused and counsel in criminal cases
 Admissions in superseded pleadings may be received in evidence against the pleader. (Rule 10, Sec. 8)
 Implied admissions in the modes of discovery (Rules 23-26)
 Plea of guilty in a criminal case
o Note: 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 gross negligence [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

 Showing that admission was made through palpable mistake
 Showing that no such admission was made

Foreign Laws may be taken judicial notice:

 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]
 Doctrine of Processual Presumption
 Proof:
o Rule 132, Secs. 24, 25
o Article II, Section 2 of the 1987 Constitution

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
 But inferior courts sitting in the respective municipalities or cities are mandated to take judicial notice thereof

Court Orders
 Courts are required to take judicial notice of the decisions of appellate courts but not of the decisions of
coordinate courts

Admissions and Confessions

 Res inter alios acta rule
o Rule 130, Sec. 128
o Rule 132, Sec. 34
 Admission by a party (Rule 130, Sec. 2)
Admission v. Confession
Admission by a third party
 General Rule: rights of a party CANNOT be prejudiced by an act, declaration, or omission of another [Rule 130,
Sec. 28]
o Exceptions (Vicarious Admissions)
 Admissions by partner (Rule 130, Sec. 29)
 Admissions by agent or one who has a joint-interest with the party (Rule 130, Sec. 29)
 Admission of co-conspirator (Rule 130, Sec. 30);
 Admission of privy of the party (Rule 130, Sec. 31)

 Admission by silence [Rule 130, Sec. 32]

o 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)
o When applicable
 to statements in writing: If the party was carrying on a mutual correspondence with the
declarant [Villanueva v. Balaguer, G.R. No. 180197, 23 June 2009]
 voluntary re-enactment [People v. Fong, G.R. No. L-7615, 14 March 1956]

 Confessions [Rule 130, Sec. 33]

 Extrajudicial confessions [Rule 133, Sec. 3] –
o Corpus delicti – the substance of the crime
o Not binding upon third parties, it is only binding on the confessant, not against his/her co-accused
[Tamargo v. Awingan, G.R. No. 177727, 19 January 2010]
o It is admissible against co-accused when: the confession is used as circumstantial evidence to show the
probability of participation by the co-conspirator and that the confession is corroborated by other
evidence [People v. Victor, G.R. No. 75154-55, 6February 1990]
o Inadmissible when confessant was not assisted by counsel
 Extrajudicial confession v. Res Gestae
 Statements during press-conference: a spontaneous statement not elicited during a custodial investigation is
admissible (People v. Mantung, G.R. No. 130372, 20 July 1999)
 Similar acts as evidence [Rule 130, Sec. 34]

BAR Q&A
1. Offer of compromise in criminal cases
2. Doctrine of adoptive admission [Estrada v. Desierto, 356 SCRA 108 (2001)]
3. Oral confession

DNA Evidence
Asked in 2009, 2010, and 2012

DNA Definition [A.M. No. 06-11-5-SC, Rule on DNA Evidence]

o “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

DNA Testing Order

o Who issues: appropriate court motu prorio or application of any person who has legal interest in the matter in
litigation (Sec. 4)
o 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

o Conditions:
o Due notice and hearing,
o Showing that
 A biological sample exists that is relevant to the case;
 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;
 The DNA testing uses a scientifically valid technique;
 The DNA testing has the scientific potential to produce new information that is relevant to the
proper resolution of the case; and
 The existence of other factors, if any, which the court may consider as potentially affecting the
accuracy or integrity of the DNA testing

o Contents of DNA Testing Order (Sec. 5): if the court finds the conditions complied with, the Court shall:
o Order that biological samples be taken from any person or crime scene evidence;
o 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
o 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

Note: (sec. 5)
- The court my order that the result of the DNA testing be simultaneously released to the parties
- 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

Post-conviction DNA Testing (Sec. 6)

o Court order is not required.
o 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

Note:
- If results are favorable to the convict, the remedy is to file a petition for a writ of habeas corpus in the court of
origin (Sec. 6)
- 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 (Sec.
10)

Factors to be considered in the assessment of probative value of DNA Evidence

a. Chain of custody
b. The DNA Testing Methodology
c. The forensic DNA laboratory (if not accredited, the credibility must be established Sec. 7(b))
d. Reliability of the testing results [Sec. 9(c)]
 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

Note: There must be a prima facie showing of possible paternity before a court can issue a DNA testing order. A DNA
Testing Order could be likened to a “search.” Before issuing such order, it is proper that during hearings on motions, the
movant must present prim facie evidence or establish a reasonable possibility of paternity [Lucas v. Lucas, 2011]

BAR Q&A
1. Vallejo Standard [People v. Vallejo, 2002]

ELECTRONIC EVIDENCE
Asked in 2009, 2010, and 2012

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 (Sec. 1)

 “Electric Document” REE, Rule 2, Sec. 1[h]

o refers to information or the representation of information, data, figures, symbols or other modes of
written expression, described or however represented by which a right is established or an obligation
extinguished, or by which a fact may be proved and affirmed, which is received, recorded, transmitted,
stored, processed, retrieved or produced electronically
o 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
o the term “electronic document” is interchangeably with “electronic data message”

 “Electronic data message” REE, Rule 2, Sec. 1[g]

o refers to information generated, sent, received or stored by electronic, optical or similar means
 “Electronic signature” REE, Rule 2, Sec. 1[j]
o 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

Probative value, evidentiary weight [REE, Rule 3, Sec. 1]

 Electronic evidence is considered as the functional equivalent of paper-based documents.
o 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]
o 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 [REE, Rule 7, Sec. 1]

1. reliability of the manner or method in which it was generated
2. reliability of the manner in which its originator was identified
3. integrity of the information and communication system in which it is recorded or store
4. The familiarity of the witness or the person who made the entry with the communication and information
system
5. The nature and quality of the information which went into the system
6. Other factors affecting accuracy or integrity of the electronic document or electronic data message

Note:
 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)
• 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: [REE, Rule 5, Sec. 2]
• It had been digitally signed by the person purported to have signed the same
• 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
• other evidence showing its integrity and reliability to the satisfaction of the judge
• Proof of electronically notarized document – considered a public document [REE, Rule 5, Sec. 2]
• Authentication of electronic signatures (REE, Rule 6, Sec. 1]
• 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.

Business Records – 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]).
• 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
 “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])
 Proven by:
o the testimony of a person who was a party to the same or has personal knowledge thereof
o In the absence or unavailability of such witnesses, other competent evidence may be admitted
o If recorded or embodied in an electronic document, it must be authenticated

BAR Q&A

Offer and Objection

ASKED IN 1997 and 2003

 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)

When to offer: Rules, J.A. Rule, Continuous Trial of Criminal Cases

Rules on Evidence (Rule 132, 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

Judicial Affidavit Rule (A.M. No. 12-8-8-SC, Section 8) - Oral offer of and objections to exhibits –

a) Upon the termination of the testimony of his last witness, a party shall immediately make an oral offer of
evidence of his documentary or object exhibits, piece by piece, in their chronological order, stating the purpose
or purposes for which he offers the particular exhibit.
b) After each piece of exhibit is offered, the adverse party shall state the legal ground for his objection, if any, to its
admission, and the court shall immediately make its ruling respecting that exhibit.
c) Since the documentary or object exhibits form part of the judicial affidavits that describe and authenticate
them, it is sufficient that such exhibits are simply cited by their markings during the offers, the objections, and
the rulings, dispensing with the description of each exhibit.

Revised Guidelines for Continuous Trial of Criminal Cases [A.M. No. 15-06-10-SC, III, 13 (b)]

• The offer of evidence, the comment/objection thereto, and the court ruling thereto shall be made orally. A party
is required to make his/her oral offer of evidence on the same day after the presentation of his/her last
witness, and the opposing party is required to immediately interpose his/her oral comment/objection
thereto. Thereafter, the court shall make a ruling on the offer of evidence in open court.
• In making the offer, the counsel shall cite the specific page numbers of the court record where the exhibits being
offered are found, if attached thereto. The court shall ensure that all exhibits offered are submitted to it on the
same day of the offer
• If the exhibits are not attached to the record, the party making the offer must submit the same during the offer
of evidence in open court

When to make objections: [Rule 132]

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)

Repetition of an Objection [Rule 132, Sec. 37]

- Not necessary when during the course of examination of a witness, the questions being propunded are of the
same class to those which objection has been made whether such objection was sustained or overruled. it is
sufficient for the adverse party to record his continuing objection to such class of questions
Ruling:
- When: Immediately after the objection is made
- Except: Unless the court desires to take a reasonable time to inform itself on the question presented [but must
be 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]
- The reason for sustaining or overruling an objection need NOT be stated
o In contrast, objections made by lawyers must always specify the grounds therefor
o 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:

1. Considered errors in judgment, not of jurisdiction;
2. Interlocutory in nature;
3. May not be the subject of a separate appeal or review on certiorari;
4. 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)

Striking out of an Answer [Rule 132, Sec. 39]

Tender of Excluded Evidence [Rule 132, Sec. 40]