EVIDENCE 2019
From the lectures of Atty. Jess Zachael Espejo
College of Law | III Manresa 2019 – 2020
RULE 132
PRESENTATION OF EVIDENCE
SECTION 1, RULE 132. Examination to be done in
open court. — The examination of witnesses
presented in a trial or hearing shall be done in open
Now
court,why
andis under
it nga oath
kinhanglan man gyudUnless
or affirmation. na in open
the
court?
witness is incapacitated to speak, or the question calls
for a different mode of answer, the answers of the
witness shall be given orally.
RATIONALE
1. Respect for the accused’s constitutional right to
confrontation and to meet the accused face to face.
2. The court must be given the opportunity to observe
demeanor evidence.
Pag testify bas a witness he seemed to be like a, mailap
ba sya nag pakita ba stag emotion?
Requirements for open court testimony
(1) The examination of the witness must be done in open
court. In other words, in full view of the judge and of the
parties to the case.
(2) The examination shall be done under oath or
affirmation.
Without that oath or affirmation, there is no way that you
can subject a witness to the pain of perjury. You cannot
hold him accountable for any falsehood that he speaks
unless there is that requirement of oath or affirmation.
As a GENERAL RULE a witness testimony must be
made in open court, naay exceptions and modification.
1. Rule of Examination of Child Witnesses
Examination can be by line link televisions, by
deposition, audio tape in depth investigation or
disclosure interviews, etc.
So here the testimony is not done in open court but it is
considered to be as it is made in open court.
2. Rule on depositions
GUERRERO GUINOMLA VIRGILIO TAN 1
Depositions may be used without the deponent being
called to the witness stand under certain conditions and
for certain limited purposes and is governed by Section 4
of Rue 124.
General Rule: even if there is a deposition, the
deponent must be presented in court, otherwise
hearsay.
3. The use of video conferencing technology or
the remote appearance or testimony of
certain persons deprived of liberty in jails
and national penitence. (new)
This is applicable to those who are in jail, or elsewhere,
and you are a high profile witness just like in
Maguindanao Massacre kay katong mga witness nga
ginabayhe kay nagakapatay. This is because most of the
time those high profile witnesses are also the accused.
General Rule: Now take note that the answers must be
given orally.
Exceptions:
1. the witness is incapacitated to speak and the
question is called for a different mode of
answer
An example would be when the witness is a deaf-mute,
who doesn’t know to write, you can take his testimony by
sign language. It is a testimony by a sign language na.
2. If the question calls for a different mode of
answer such when the answer calls for a
gesture.
An example is when the answer to the question is a
gesture, or an action, or when the witness points to the
accused during trial or to a specific part of his body that
was injured.
The prosecution will ask the witness, “If you see the
accused in the courtroom right now, would you be able
to identify him?” That’s identification of the accused. The
witness will say yes, pretend to look around, and finally
points at a person wearing red. The interpreter will make
it of record that the witness pointed to a person wearing
red. The interpreter will then ask the person to state his
name for the record. But the testimony there is actually a
gesture; the witness pointing to somebody.
 EVIDENCE 2019
From the lectures of Atty. Jess Zachael Espejo
College of Law | III Manresa 2019 – 2020
Another example would be when the witness is asked,
“How did the accused threatened you?” The witness will
then signal *finger slashing the throat/neck*.
Take note that although not an exception but a mere
modification to the general rule would be under
Summary Rules. In summary procedure, the
testimonies of witnesses shall be reduced into
writing in the form of an affidavit. That’s the first thing
in our law where instead of testifying in open court orally,
it’s the affidavit that takes place of the testimony.
So what happens here is that, you simply call the
witness to the witness stand and ask preliminary
questions and then asking about the circumstances kun
pa unsa ba pag sulat sa iyahang affidavit, kinsa ang
nitapad sa iyaha, if he re affirms the contents of the
affidavit and with a prayer of the counsel to make that
affidavit as the direct testimony of the witness.
SECTION 2, RULE 132. Proceedings to be
recorded. — The entire proceedings of a trial or
hearing, including the questions propounded to a
witness and his answers thereto, the statements made
by the judge or any of the parties, counsel, or
witnesses with reference to the case, shall be
recorded by means of shorthand or stenotype or by
other means of recording found suitable by the court.
A transcript of the record of the proceedings made by
the official stenographer, stenotypist or recorder and
certified as correct by him shall be deemed prima facie
a correct statement of such proceedings.
Remember what happens in the court room. What the
judge says is recorded unless he says “Off –the-record”.
It usually happens when the judge does something
unprocedural’
A few weeks later, youre supposed to get a copy of the
Transcript of Stenographic notes that you will use.
Q: What do you use the TSN for?
A: You want to prepare for cross examination and cross
examination has been deferred to another date, you can
use the TSN to prepare your cross exainamtion.
Q: What else?
A: When you are preparing for your judicial affidavit.
GUERRERO GUINOMLA VIRGILIO TAN But a witness must answer to the fact of his previous 2
Presumption of Regularity of Stenographic Notes
A transcript of the record of the proceedings made by
the official stenographer, stenotypist or recorder and
certified as correct by him shall be deemed prima facie a
correct statement of such proceedings.
So pano pag mali ang pag ka transcribe? Yes was
transcribed as no.
Remedy if the Notes are Erroneously Transcribed
The remedy is to file a Motion to Correct Transcript of
Stenographic Notes. If the errors are only on the use of
grammar, you can let that go. But if the error now affects
your cause of action or defense or your ability to prove
them, then file a motion to correct. It is considered as
evidence and there is no necessity to present the
stenographer as a witness.
A Transcript of Stenographic Notes, being an official
entry in the court’s records, is admissible in evidence
and there is no necessity to produce the concerned
stenographer as a witness (Fullero vs. People, G.R. No.
170583, September 12, 2007).
SECTION 3, RULE 132. Rights and obligations of a
witness. —
A witness must answer questions, although his
answer may tend to establish a claim against him.
However, it is the right of a witness:
1. To be protected from irrelevant, improper, or
insulting questions, and from harsh or insulting
demeanor;
2. Not to be detained longer than the interests of
justice require;
3. Not to be examined except only as to matters
pertinent to the issue;
4. Not to give an answer which will tend to subject him
to a penalty for an offense unless otherwise provided
by law; or
5. Not to give an answer which will tend to degrade his
reputation, unless it be to the very fact at issue or to a
fact from which the fact in issue would be presumed.
final conviction for an offense.
 EVIDENCE 2019
From the lectures of Atty. Jess Zachael Espejo
College of Law | III Manresa 2019 – 2020
(1) To be protected from irrelevant, improper, or
insulting questions, and from harsh or insulting
demeanor;
The witness can claim this right from the opposing
counsel or from anybody in the courtroom except the
judge. You cannot object to the demeanor of the judge.
Modes of Objection
When you the opposing counsel asks irrelevant or
improper questions, the mode of you objection is that it
is irrelevant or improper.
When there are insulting questions, harsh, or insulting
demeanor, the objection is called BADGERING THE
WITNESS. You are trying to intimidate the witness; you
are trying to put the fear of god on him in order to rattle
the witness.
(2) Not to be detained longer than the interests of
justice require;
REASON: When you are a witness in court, the law
presumes that you are otherwise gainfully employed.
You are not a professional witness. You are not paid.
You have to take a leave from work and that is the
reason that direct examination, cross-examination,
redirect examination, and re-cross examination should
be done in one day, ideally. Human na na dapat
because the witness has to be excused from work or for
any vocation he may have had. So, kung madelay ka,
you can object.
The moment that you have been excused, you have no
expectation that you will be called again. Your purpose
why you appeared in court as a witness is already
consummated and therefore, you should not be detained
any longer. It’s an imposition on your time.
(3) Not to be examined except only as to matters
pertinent to the issue;
Relevancy. The questions asked must be those that are
pertinent to the fact in issue.
(4) Not to give an answer which will tend to subject
him to a penalty for an offense unless otherwise
provided by law; or
That is your Right against Self-Incrimination.
GUERRERO GUINOMLA VIRGILIO TAN 3
(5) Not to give an answer which will tend to degrade
his reputation, unless it be to the very fact at issue
or to a fact from which the fact in issue would be
presumed. But a witness must answer to the fact of
his previous final conviction for an offense.
This talks about your Right against Self-Degradation.
The right not to give an answer which will tend to
degrade his reputation is called the right of the witness
against self-degradation. The witness shall not be asked
questions that would degrade him despite the fact that it
falls short of an invocation of your right against self-
incrimination unless it be the very fact of issue.
The witness must answer to the fact of his previous final
conviction for an offense because, anyway, it is of public
record. Even if you are asked, you have to answer
truthfully because it will no longer tend to degrade your
reputation, being already of public record.
Right against Self Incrimination
“unless otherwise provided by law” what does this
mean? State witness The right against self-incrimination
is not absolute. It depends on the party claiming the
right. If you’re the accused, you have the greater latitude
to claim such right. But if you are an ordinary witness, it’s
not the case. You cannot refuse to take the witness
stand but you can object or plead the fifth (Fifth
Amendment in the US) on the ground that your answer
might tend to incriminate you.
This refers to Immunity Statutes wherein the witness is
granted immunity from criminal prosecution for offenses.
EXAMPLES:
• Under Sec. 8, R.A. 1379, the law providing for
the forfeiture of unlawfully acquired property,
and
• Under P.D. 749, in prosecutions for bribery and
graft (giving immunity to bribe-givers)
• Other laws
Discharge of state witness’ immunity:
KINDS OF IMMUNITY
(1) USE IMMUNITY – prohibits the use of the witness’
compelled testimony and its fruits in any manner in
connection with the criminal prosecution of witness.
The witness will still be indicted for the commission of an
offense, but the statements given by the witness cannot
 EVIDENCE 2019
From the lectures of Atty. Jess Zachael Espejo
College of Law | III Manresa 2019 – 2020

be used against him. He is not immune from 1. Such question is directed to the very fact at issue
prosecution; or to a fact from which the fact at issue would be
presumed;
(2) TRANSACTIONAL IMMUNITY – grants immunity to
the witness from prosecution for an offense to which his For example, murder. During cross- examination, the
compelled testimony relates it creates an absolute opposing counsel will ask you if you killed the victim.
immunity. Can you say I invoke my right to self –incrimination? No.
It is the very fact in issue and you have to answer the
There is absolute immunity, both to prosecution and use question.
of the statements given by the witness. This is a greater
immunity. 2. If it refers to his previous final conviction for an
offense (Regalado, Vol. II, pp. 841-842, 2008 ed.).
The right against self-incrimination pertains only to:
Because it is already a public record if you are
1. Natural persons, and convicted.

2. With respect to testimonial compulsion only. 3. Waiver of the right

The right may be invoked in any proceeding where The testimony of the witness is Self-deprecating.
testimony is to be given including investigation by
legislative bodies. ONG vs. SANDIGANBAYAN

G.R. No. 126858 | September 16, 2005

Right to Privacy
The constitutional assurance of the right
The concept that one's personal information is protected against self-incrimination is a prohibition
from public scrutiny. against the use of physical or moral
compulsion to extort communications from the
Right Against Self-Degradation
accused. It is simply a prohibition against legal
The right not to give an answer which will tend to process to extract from the accused’s own lips,
degrade his reputation. against his will, admission of his guilt.

.Remember if it is on the court’s optic preference it is not

covered.
Summary
Now that note that there is a difference if the accused id
GENERAL RULE: also a witness or a witness than an ordinary witness.

A witness (unlike an accused) cannot refuse to answer
questions. The witness has the obligation to answer
questions, although his answer may tend to establish a
claim against him (Section 3). This claim should be a
civil claim.
EXCEPTIONS:
1. Right against self-incrimination
2. Right against self-degradation. you can invoke
either of these rights and refuse to answer the
question.
EXCEPTIONS TO THE EXCEPTIONS:
The witness may not invoke the right against self-
incrimination or the right against self-degradation:
GUERRERO GUINOMLA VIRGILIO TAN 4
Remember that the accused cannot be compelled to
testify or produce evidence in the criminal case in which
he is the accused or one of the accused. He cannot be
compelled to do so even by way of subpoena or other
order of the court. He cannot be so required either for
the prosecution, for co-accused or even for himself.
An ordinary witness, on the other hand, may be
compelled to testify by subpoena, having only the right to
refuse to answer a particular incriminating question at
the time it is put to him.
In short, the accused may refuse to take the witness
stand altogether. Nobody can force you. But if you are
simply an ordinary witness, you cannot invoke the right
to self-incrimination and refuse to take the witness stand.
 EVIDENCE 2019
From the lectures of Atty. Jess Zachael Espejo
College of Law | III Manresa 2019 – 2020

What can you do? If there’s a question that is SECTION 4, RULE 132. Order in the
incriminating, that is only the time an ordinary witness
examination of an individual witness. —
can invoke the right to self-incrimination.
The order in which an individual witness may
From 2017 tsn: be examined is as follows:

ACCUSED WITNESS ORDINARY WITNESS a. Direct examination by the proponent; b.

Cannot be compelled to May be compelled to testify
testify or produce by subpoena. Have the Cross-examination by the opponent;
evidence in the criminal right to refuse to answer a
case in which he is the particular incriminating c. Re-direct examination by the proponent;
accused or one of the question at the time it is put
accused, even by to him. (pertains to a d. Re-cross-examination by the opponent
subpoena or other particular question only)
process or order of the
court 1. Direct examination

Examination-in-chief of a witness by a party

presenting him on the facts relevant to the issue.

2. Cross- examination

Examination by the adverse party as to any matters

ROSETE vs. LIM
G.R. No. 136051 | June 8, 2006
Any witness may refuse to take the witness
stand in civil and administrative cases that
partake the nature of or analogous to a
criminal proceeding. As long as the suit is
criminal in nature, the party thereto can decline
to take the witness stand. It is not the
character of the suit involved but the nature of
the proceedings that controls.
stated in the direct examination or connected
therewith, with sufficient fullness and freedom to
test his accuracy and truthfulness and freedom from
interest, or bias or the reverse and to elicit all
important facts bearing upon the issue.
3. Re-direct examination
Re-examination by the party calling him to explain or
supplement his answers given during the cross-
examination. Questions on matters not dealt with
during the cross-examination may be allowed by the
court in its discretion.

4. Re-cross examination

Re-examination by the adverse on matters stated in his

Lets proceed to order of examination. The order of
examination will be repeated as long as there would be
witnesses.
re-direct examination and also on such other matters as
may be allowed by the court in its discretion.
Before it is Direct examination that takes a lot of time. In
a civil case, it is in direct examination that the witness
testifies about the cause of action. What is the obligation
of the defendant. How was it violated? And you need to
identify documents.

And it is during cross-examination that you poke holes

into the testimony of the witness. So it takes a lot of time.

Usually, re-direct examination can be waived. Re-cross

examination can be waved. Even cross-examination can
be waived. But direct examination cannot be waived.

GUERRERO GUINOMLA VIRGILIO TAN 5

 EVIDENCE 2019
From the lectures of Atty. Jess Zachael Espejo
College of Law | III Manresa 2019 – 2020
The only time there can be a waiver of direct
examination is when the opponent stipulates that
everything that the witness will say is true. And who in
their right mind would do that?
How about cross- examination? Do you waive it? If you
are a self-respecting lawyer, you will not. The only time I
believe one can waive cross-examination is when you
are examining a child
SECTION 5. Direct Examination. – Direct
examination is the examination-in-chief of a
witness by the party presenting him on the facts
relevant to the issue.
Under the rules, direct examination is supposed to be
done in open court to guarantee the right to meet
witnesses face to face and for the court to observe
demeanor evidence. In civil cases, under Rule 133
Section 1, part of the factors to determine
preponderance of evidence would be the witness’
manner of testifying. So, if the witness is not examined in
open court, the court will not have the ability to observe
the witness’ manner of testifying, his demeanor of
testifying. But this rule has now been modified by the
judicial affidavit rule.
With this rue, the court now proceeds to cross-
examination. So now here comes the judicial affidavit
rule which now mandates that the testimony of a witness
in direct examination must now be done via judicial
affidavit in question and answer form. The questions that
counsel is supposed to ask in open court, you just do it
in writing, and answered by the witness in the writing.
Now, take note, a judicial affidavit shall be prepared in
the language known to the witness and, if not in English
or Filipino, accompanied by a translation in English or
Filipino. Under the judicial affidavit rule, what happens?
It’s the lawyer, the one who takes his judicial affidavit,
who will make an advance translation.
Contents of Judicial Affidavit
SECTION 3. Contents of Judicial Affidavit. - A judicial
affidavit shall be prepared in the language known to the
witness and, if not in English or Filipino, accompanied by
a translation in English or Filipino, and shall contain the
following:
(a) The name, age, residence or business address, and
occupation of the witness;
GUERRERO GUINOMLA VIRGILIO TAN 6
(b) The name and address of the lawyer who conducts
or supervises the examination of the witness and the
place where the examination is being held;
(c) A statement that the witness is answering the
questions asked of him, fully conscious that he does so
under oath, and that he may face criminal liability for
false testimony or perjury;
(d) Questions asked of the witness and his
corresponding answers, consecutively numbered, that:
(1) Show the circumstances under which the
witness acquired the facts upon which he
testifies;
(2) Elicit from him those facts which are relevant
to the issues that the case presents; and
(3) Identify the attached documentary and object
evidence and establish their authenticity in
accordance with the Rules of Court;
(e) The signature of the witness over his printed name;
and
(f) A jurat with the signature of the notary public who
administers the oath or an officer who is authorized by
law to administer the same.
What is a jurat?
SECTION 6. “Jurat” refers to an act in which an
individual on a single occasion:
a. Appears in person before the notary public and
presents an instrument or document;
b. Is personally known to the notary public or identified
by the notary public through competent evidence of
identity as defined by these Rules;
c. Signs the instrument or document in the presence of
the notary; and
d. Takes an oath or affirmation before the notary public
as to such instrument or document.
CHARACTERISTICS OF A JUDICIAL AFFIDAVIT
1. It is a statement of facts presented in a question
and answer form. The questions are asked by
counsel and answered by the witness;
2. It is made under oath or affirmation;
 EVIDENCE 2019
From the lectures of Atty. Jess Zachael Espejo
College of Law | III Manresa 2019 – 2020

3. It serves a judicial purpose. It is used as a permit, affidavit
substitute for a witness’ testimony on direct of no income,
examination; affidavit of low
4. It may contain and identify a witness’ non- income, affidavit
testimonial evidence; documents or of support)
representation of objects can be attached , As to Merely hearsay Will not be
pictures, pero dili kinahanglan na nay admissibility evidence where considered by the
attachments its affiant/maker court only if the
5. It is prepared ex- parte, as cross examination did not take the witness fails to
takes place only after the judicial affidavit. witness stand appear at the
6. It is made under oath or affirmation and it serves scheduled hearing
a judicial purpose only. or if it does not
7. conform
to the content
So this is an ordinary affidavit. In ordinary it is the As to how Affiant must No need to re-
language of the person preparing affidavit. testimony is testify and be testify inasmuch
made crossexamined as his JA already
ORDINARY AFFIDAVIT vs. JUDICIAL AFFIDAVIT in order for the constitutes his
contents of his direct testimony.
DISTINCTIONS ORDINARY JUDICIAL
affidavit to be
AFFIDAVIT AFFIDAVIT
admitted to What the rule
As to form statement, A narration of
evidence. requires is that he
under oath, of facts under oath
In effect, he has simply reaffirms
facts but in question
to re-testify his
and answer form.
on his affidavit. JA.
As to how Always Prepared ex (Exception: In
prepared prepared ex parte, but later on, summary
parte. subject to cross procedures)
examination by
As to waiver of Cross Counsel who fails
the opponent
Cross- examination to appear without
As to the Not prepared by Employs the examination is waived by valid cause
language used the affiant, but affiant’s own any of despite notice
by another who language. The the means shall be deemed
uses his own Rule requires that allowed to have waived his
language in the judicial by law, provided client’s right to
writing the affidavit must there is direct confront by
statements contain the very examination on crossexamination
which may statements of the the contents of The witnesses
either be affiant himself. the affidavit. there present.
omitted or
misunderstood It has to be in a
by the writer language As to the rationale of allowing the court to examine
understood by the demeanor evidence, there is a marked difference from
witness. That’s the manner of procedure under Rule 132 (sic). Waalay
he reason why it demeanor diri.
is in a Q&A form.
As to uses Any practically Only one use:
legal purpose Only to take the
(i.e., attesting to place of a witness’ To compensate, Section 7 provides that, in every case,
the fact of loss, testimony in direct the court shall take active part in examining the witness
nontenancy, examination. to determine his credibility as well as the truth of his
initiation of a testimony and to elicit the answers that it needs for
criminal resolving the issues.
complaint,
business What is the PURPOSE? To save time.

GUERRERO GUINOMLA VIRGILIO TAN 7

 EVIDENCE 2019
From the lectures of Atty. Jess Zachael Espejo
College of Law | III Manresa 2019 – 2020
In sum, the court saves time under JAR because:
1. The testimony of the witness is translated in advance;
2. The attached documentary and object evidence are
pre identified and pre-authenticated in accordance with
the Rules of Court;
3. There is no more need for a lengthy direct
examination;
4. Objections as to admissibility of testimonial and other
evidence are threshed out beforehand as the adverse
party is furnished a copy of the judicial affidavit.
SECTION 6. Offer of and objections to testimony
in judicial affidavit. - The party presenting the
judicial affidavit of his witness in place of direct
testimony shall state the purpose of such testimony at
the start of the presentation of the witness. The
adverse party may move to disqualify the witness or
to strike out his affidavit or any of the answers found
in it on ground of inadmissibility. The court shall
promptly rule on the motion and, if granted, shall
cause the marking of any excluded answer by placing
it in brackets under the initials of an authorized court
personnel, without prejudice to a tender of excluded
evidence under Section 40 of Rule 132 of the Rules
of Court.
The party presenting the judicial affidavit of his witness
in place of direct testimony shall state the purpose of
such testimony at the start of the presentation of the
witness. In a way, it is already considered a formal offer.
The adverse party may move to disqualify the witness or
strike out his affidavit or any of the answers found in it on
the ground of INADMISSIBILITY.
Example, naay answer didto na hearsay. Imo na
objectionan in writing.
APPLICABILITY OF THE RULE
SECTION 1. Scope. –
(a) This Rule shall apply to all actions, proceedings, and
incidents requiring the reception of evidence before:
1) The Metropolitan Trial Courts, the Municipal Trial
Courts in Cities, the Municipal Trial Courts, the Municipal
GUERRERO GUINOMLA VIRGILIO TAN 8
Circuit Trial Courts, and the Shari' a Circuit Courts but
shall not apply to small claims cases under A.M. 08-8-7-
SC;
(2) The Regional Trial Courts and the Shari'a District
Courts;
(3) The Sandiganbayan, the Court of Tax Appeals, the
Court of Appeals, and the Shari'a Appellate Courts;
(4) The investigating officers and bodies authorized by
the Supreme Court to receive evidence, including the
Integrated Bar of the Philippine (IBP); and
(5) The special courts and quasi-judicial bodies, whose
rules of procedure are subject to disapproval of the
Supreme Court, insofar as their existing rules of
procedure contravene the provisions of this Rule.
(b) For the purpose of brevity, the above courts, quasi-
judicial bodies, or investigating officers shall be uniformly
referred to here as the "court."
COURTS
Practically ALL subordinate courts, including collegiate
courts such as:
• All MTCs
• All Shari’a Circuit Courts, District and Appellate Courts;
• RTCs;
• Sandiganbayan
• Court of Tax Appeals
• Court of Appeals
• Investigating officers and bodies authorized by the
Supreme Court to receive evidence, including the IBP
(disbarment cases); and
• Special courts and quasi-judicial bodies, whose rules of
procedure are subject to disapproval of the Supreme
Court
Only the Supreme Court is not covered because it is not
a trier of facts. A Judicial Affidavit is evidentiary. It is
factual.
TYPES OF CASES
 EVIDENCE 2019
From the lectures of Atty. Jess Zachael Espejo
College of Law | III Manresa 2019 – 2020
The rule shall apply:
1. All actions, proceedings, and incidents requiring
the reception of evidence, but it shall not apply to
small claims cases under A.M. 08-8-7-SC.
Under Small Claims, no presentation of evidence.
Naturally, no need for JA.
2. The Rule may apply to criminal cases in three
situations as provided under Section 9, to wit:
a. Where the maximum of the imposable penalty does
not exceed six years;
b. Regardless of the penalty involved, with respect to the
civil aspect of the actions, or
c. In any case where the accused agrees to the use of
the Rule.
Remember, in criminal cases, not all situations apply
JAR. But it will always apply when the accused
manifests to the court that it wants JA.
A.M. No. 12-8-8-SC
JUDICIAL AFFIDAVIT RULE
Section 1. Scope. - (a) This Rule shall apply to all
actions, proceedings, and incidents requiring the
reception of evidence before:
1. The Metropolitan Trial Courts, the Municipal
Trial Courts in Cities, the Municipal Trial Courts,
the Municipal Circuit Trial Courts, and the Shari'
a Circuit Courts but shall not apply to small
claims cases under A.M. 08-8-7-SC;
2. The Regional Trial Courts and the Shari'a
District Courts;
3. The Sandiganbayan, the Court of Tax Appeals,
the Court of Appeals, and the Shari'a Appellate
Courts;
4. The investigating officers and bodies authorized
by the Supreme Court to receive evidence,
including the Integrated Bar of the Philippine
(IBP); and
5. The special courts and quasi-judicial bodies,
whose rules of procedure are subject to
disapproval of the Supreme Court, insofar as
their existing rules of procedure contravene the
GUERRERO GUINOMLA VIRGILIO TAN 9
provisions of this Rule.1
(b) For the purpose of brevity, the above courts, quasi-
judicial bodies, or investigating officers shall be uniformly
referred to here as the "court."
Can you appeal the decision in Small Claim Cases?
No, because any small claim judgment is final and
executory.
What will be your remedy?
Certiorai (imagine?)
Where will you file?
Following the hierarchy of courts, you go to RTC.
The Rule may apply to criminal cases in three situations
as provided under section 9, to wit;
1. Where the maximum of the imposable penalty
does not exceed six years;
2. Regardless of the penalty involved, with respect
to the civil aspect of the actions, or
3. In any case where the accused agrees to the
use of the Rule.
Again, applicable to cases already pending at the time of
its promulgation. This means that even a pre-trial has
already been conducted, the presentation of evidence
shall be governed by the Rule and according to justice
Abad, the presentation of witnesses shall be considered
incidence and judicial affidavit should be submitted 5
days before the scheduled hearing.
So, it brings us to stage of proceedings. So dapat
presentation of evidence-in-chief. But it is also applicable
in these institutions. Ordinarily, your JA should begin 5
days before the scheduled pre-trial. But for example,
incident siya (a case for recovered possession).
In a case for recovery of possession, the defendant filed
a motion to dismiss on the ground that the court has no
jurisdiction over the subject matter of the claim. He avers
that the assessed value of the real estate exceeds the
jurisdictional parameter of cases cognizable by the MTC.
Based on the rules on civil procedure, there will be a
hearing on his motion and the movant may be required
to testify.
So, the movant is required to file and serve his judicial
affidavit five days before the hearing of the motion.
SECTION 2. Submission of Judicial Affidavits and
Exhibits in lieu of direct testimonies. - (a) The parties
shall file with the court and serve on the adverse party,
personally or by licensed courier service, not later than
five days before pre-trial or preliminary conference or the
 EVIDENCE 2019
From the lectures of Atty. Jess Zachael Espejo
College of Law | III Manresa 2019 – 2020

scheduled hearing with respect to motions and incidents
xxx. You need to remember there’s also the requirement of
submitting pre-trial briefs, and the requirement is you
THE STAGE OF THE PROCEEDINGS have to submit your pretrial brief at least 3 days prior to
the date of the pre-trial.
(1) The Rule applies to the presentation of evidence-in-
chief of the parties as well as to incidents and motions. So, pretrial brief (which should contain your JA) is 3days.
JA- 5 days. Is there a conflict?
Example 1:
In a case for recovery of possession, the defendant filed JZE: In practice, what I do, there is that pleading we call
a motion to dismiss on the ground that the court has no SUBMISSION where we attach our JA, to be submitted
jurisdiction over the subject matter of the claim. He avers in court 5 days prior to the date of the scheduled pre-
that the assessed value of the trial. In effect, there are two pleadings: (1) the pretrial
real estate exceeds the jurisdictional parameter of cases brief, which should be submitted 3 days prior to the date
cognizable by the MTC. Based on the rules on civil of pretrial; and (2) the SUBMISSION, which shall contain
procedure, there will be a hearing on his motion and the the JA, which shall be submitted 5 days prior to the date
movant will be required to testify. of pretrial.
So, the movant is required to file and serve his judicial
affidavit five days before the hearing of the motion. Q: DO YOU NEED TO ATTACH YOUR JUDICIAL
AFFIDAVIT IN THE PRE-TRIAL BRIEF?
Example 2: A complaint was filed with a prayer for the A: NO, although there was a misconception before
issuance of a writ of preliminary attachment or injunction. because the lawyers are complaining. If the JAs are to
Under the Rules, there will be a hearing on this prayer be attached to the pretrial brief, it means that in effect
and testimony by the applicant. The rule requires the there is an amendment already of Rule 18. This is no
submission of judicial affidavits for this incident as well. It longer 3 days, because you cannot physically attach a
is very clear under the judicial affidavit to a pre-trial brief that you are yet to file.
JAR that it applies to all actions, proceedings, and So there was that misconception.
incidents requiring the reception of evidence. So, here,
you need a JA. They are still separate periods. 3 days, pre-trial brief. 5
days, judicial affidavit. They are two separate periods.
SERVICE AND FILING
Q: What is the effect if the JA is not submitted on time?
The rule distinguishes between judicial affidavits A: A party who fails to submit the required JA shall be
submitted for incidents and motions and judicial deemed to have waived their submission.
affidavits submitted as part of the evidence-in-chief of a
party. Latest case on JA
Lara’s Gift and Decors vs PNB General Insurers
JUDICIAL AFFIDAVITS JUDICIAL AFFIDAVITS (January 24, 2018)
SUBMITTED IN SUBMITTED AS PART
SUPPORT OF A Issue: Can a party submit supplemental Judicial Affidavit
OF INCIDENTS AND PARTY’S EVIDENCE- which is contrary to Section 2? (Katong 5 days prior to
MOTIONS INCHIEF pretrial, and sanction of waiver)
The same must be filed The parties shall serve on
and served 5 days prior to the adverse party and filed When you say a supplemental JA, it means that you
the scheduled hearing of with the court not later already submitted a JA, and then later on during trial,
such incidents or motions. than 5 days nag submit na sad ka ug additional JA. Can you do that?
before pre-trial. If based on the codal, you can’t. You are deemed to
have waived that already.
Recall in CivPro, Rule 18.
But according to this case, the SC said pwede.
SECTION 6, RULE 18. Pre-trial brief. The parties shall According to SC, the Judicial Affidavit Rule and the
file with the court and serve on the adverse party, in guidelines on pre-trial do not totally proscribe the
such manner as shall ensure their receipt thereof at least submission of additional evidence, even after trial had
three (3) days before the date of the pre-trial, their already commenced.
respective pre-trial briefs xxx.
GUERRERO GUINOMLA VIRGILIO TAN 10

 EVIDENCE 2019
From the lectures of Atty. Jess Zachael Espejo
College of Law | III Manresa 2019 – 2020
While it may be true that Section 10 (sic) prohibits the
belated filing of judicial affidavits, but it does not contain
a blanket prohibition on the submission of additional
evidence.
However, the submission of evidence beyond the
mandated period in the Judicial Affidavit Rule is strictly
subject to the conditions that:
a. The court may allow the late submission of evidence
ONLY ONCE;
b. The party presenting the evidence offers a valid
reason
for the delay; and
c. Finally, the opposing party will not be prejudiced
thereby.
The guidelines on pre-trial confers upon the trial court
the discretion to allow the introduction of additional
evidence during trial, other than those that have been
previously marked and identified during pretrial, provided
there are valid grounds.
JZE: In their pretrial order, both parties reserved the right
to present additional evidence. According to SC, when
you reserve the right to present additional evidence, that
constitutes a waiver of the application of Sections 2 and
10 of the JAR.
SERVICE AND FILING IN CRIMINAL CASES
GENERAL RULE: Simultaneous filing of judicial
affidavits and pre-trial briefs.
EXCEPTION: Section 9.
SECTION 9. Application of rule to criminal actions. –
xxx
(b) The prosecution shall submit the judicial affidavits of
its witnesses not later than five days before the pre-trial,
serving copies if the same upon the accused. The
complainant or public prosecutor shall attach to the
affidavits such documentary or object evidence as he
may have, marking them as Exhibits A, B, C,
and so on. No further judicial affidavit, documentary, or
object evidence shall be admitted at the trial.
(c) If the accused desires to be heard on his defense
after receipt of the judicial affidavits of the prosecution,
he shall have the option to submit his judicial affidavit as
well as those of his witnesses to
the court within ten days from receipt of such affidavits
and serve a copy of each on the public and private
prosecutor, including his documentary and object
GUERRERO GUINOMLA VIRGILIO TAN 11
evidence previously marked as Exhibits 1,
2, 3, and so on. These affidavits shall serve as direct
testimonies of the accused and his witnesses when they
appear before the court to testify.
xxx
Take note that in Section 9, what happens here is the
prosecution is subject to the same period regarding the
submission of pretrial briefs, which is 5 days prior to the
scheduled pre-trial. That’s the
general rule of the prosecution.
But in letter C of section 9, if the accused desires to be
heard on his defense after receipt of the judicial
affidavits of the prosecution, he shall have the option to
submit his judicial affidavits as well as
those of his witnesses to the court within ten days from
receipt of such affidavits.
In other words, the general rule 5 days prior to the pre-
trial applies to the prosecution. The exception applies
when the accused wants to be heard on his defense. He
can actually submit his judicial
affidavits NOT simultaneous with the submission of the
prosecution, but 10 days after receipt.
HOW SERVICE AND FILING MADE
SECTION 2. Submission of Judicial Affidavits and
Exhibits in lieu of direct testimonies. - (a) The parties
shall file with the court and serve on the adverse party,
personally or by licensed courier
service, not later than five days before pre-trial or
preliminary conference or the scheduled hearing with
respect to motions and incidents xxx.
Two modes of service or filing of judicial affidavit:
1. by personal service. That’s the same personal service
as defined in the Rules on Civil Procedure.
2. by licensed courier service.
Take note that the usual filing of service by registered
mail is absent. Walay labot. Not one of those
enumerated by the law. So, does this mean that the
mode of filing by registered mail is already not allowed?
Q: IS THIS MODE STILL ALLOWED?
A: It’s still allowed. But, it becomes the lookout of the
party (who wishes to submit a judicial affidavit) to ensure
that the judicial affidavits are received by the adverse
party, served upon the
adverse party, and then received by the court 5 days
prior to the scheduled pre-trial.
 EVIDENCE 2019
From the lectures of Atty. Jess Zachael Espejo
College of Law | III Manresa 2019 – 2020
The usual rule that the date of mailing is the date of
filing, that’s still good. Pwede gihapon ka mag registered
mail, except that, you have to ensure that if you use the
registered mail service, it reaches
the party 5 days prior to the scheduled pre-trial.
Kung mag-abot sya late, considering that our mail
service in the Philippines is crappy mail service,
problema na na nimo. You can be sanctioned under the
Rule.
SECTION 4. Sworn attestation of the lawyer. –
(a) The judicial affidavit shall contain a sworn attestation
at the end, executed by the lawyer who conducted or
supervised the examination of the witness, to the effect
that:
(1) He faithfully recorded or caused to be recorded the
questions he asked and the corresponding answers that
the witness gave; and
(2) Neither he nor any other person then present or
assisting him coached the witness regarding the latter's
answers.
(b) A false attestation shall subject the lawyer mentioned
to disciplinary action, including disbarment.
ATTESTATION REQUIREMENT
1. What is the reason why you have that
attestation?
Remember that the judicial affidavit rule is
supposed to ensure that it is really the language
or the testimony of the witness that appears in
the judicial affidavit.
The lawyer should not coach the witness, which
is revealed in part two of the requirements.
That’s very important.
2. Take note, that a false attestation shall subject
the lawyer mentioned to disciplinary action,
including disbarment.
But sometimes, in actual practice, what we do
would be to prepare questions and then
suggested answers based on the complaint or
the affidavit complaint. We have to be consistent
in what we say also.
Take note: there is no requirement that the
lawyer who prepared the judicial affidavit must
be the one to present the witness in court.
GUERRERO GUINOMLA VIRGILIO TAN 12
In effect, there are at least two lawyers involved
in the drafting of a
judicial affidavit:
1. The lawyer who conducts the examination,
who causes it to be recorded, and who also
makes the attestation;
2. The lawyer who notarizes the attestation of
the one conducting the examination;
The note that pwede pa ni dungagan ug
ikatulo:
3. The lawyer who presents the witness
(executing the judicial affidavit) during direct
examination in court.
EFFECTS OF NON-COMPLIANCE
There are different consequences in case of:
1. Failure to file the judicial affidavit;
2. Failure to comply with the prescribed requirements; or
3. Absence during the scheduled trial date.
(1) Failure to file the Judicial Affidavit
GR: The main sanction would be that the party shall be
deemed to have waived their submission.
XPN:
1. It must be with leave of court
2. The delay must be for a valid reason
3. It would not unduly prejudice the opposing party
4. There’s a fine in between P1,000.00 to P5,000.00
pesos, at the discretion of the court.
5. It is availed only once.
(2) Failure to comply with the required contents
Sanction: there is inadmissibility, if the judicial affidavit
does not conform to the content requirements of Section
3 and the attestation requirement of Section 4.
The court may however allow ONLY ONCE the
subsequent submission of the compliant replacement
affidavit.
Again, there is the requirement that the delay is for a
valid reason; it would not unduly prejudice the opposing
party; and again, a fine of P1,000.00 to P5,000.00. (refer
to XPN above).
(3) ABSENCE DURING THE SCHEDULED TRIAL
DATE
The court shall not consider the affidavit of any witness
who fails to appear at the scheduled hearing of the case
as required.
 EVIDENCE 2019
From the lectures of Atty. Jess Zachael Espejo
College of Law | III Manresa 2019 – 2020
Please remember when you say that the court shall not
consider, it means that it will not be received into
evidence. Plain and simple.
Counsel who fails to appear without valid cause despite
notice shall be deemed to have waived his client’s right
to confront by cross-examination the witnesses there
present.
When we say that the court will not consider it, it means
that it will not be received into evidence and the counsel
who fails to appear without valid cause despite notice
shall be deemed to have waived his right to confront by
cross examination the witnesses present.
DOLOT vs. HON. RAMON PAJE
There was a petition for continuing mandamus that was
filed in accordance with the Rules of Procedure for
Environmental cases and there’s this requirement that
you file a verified petition
attaching the supporting evidence already.
Here the RTC dismissed the petition on the ground that
the petitioners failed to attach the JA among other
infirmities.
ISSUE: Is it required that when you file a petition, you
already attach the JA?
Ruling: There is nothing in Rule 8 that compels the
inclusion of judicial affidavits, albeit not prohibited. It is
only if the evidence of the petitioner would consist of
testimony of witnesses that it would be the time that
judicial affidavits (affidavits of witnesses in the question
and answer form) must be attached to the
petition/complaint.
So, the RTC was in error when it denied the petition
simply because of failure to include the JA.
NG MENG TAM VS. CHINA BANKING
CORPORATION
A party wanted to utilize a hostile witness—imagine for
example that you’re the plaintiff and you want to get the
defendant as a witness; definitely that defendant would
be hostile. Will such defendant go to the law office of the
lawyer of the plaintiff and have his JA taken? You can’t
assume that. The SC here has the occasion to interpret
Sec 5 of the JA.
Sec. 5. Subpoena. – If the government employee or
official, or the requested witness, who is neither the
witness of the adverse party nor a hostile witness,
unjustifiably declines to execute a judicial affidavit or
GUERRERO GUINOMLA VIRGILIO TAN 13
refuses without just cause to make the relevant books,
documents, or other things under his control available for
copying, authentication, and eventual production in
court, the requesting
party may avail himself of the issuance of a subpoena ad
testificandum or duces tecum under Rule 21 of the Rules
of Court.
The rules governing the issuance of a subpoena to the
witness in this case shall be the same as when taking
his deposition except that the taking of a judicial affidavit
shall be understood to be ex parte.
ISSUE: Does this apply to hostile witness?
Ruling: Definitely not.
SECTION 5 OF THE JAR DOES NOT APPLY TO
ADVERSE PARTY WITNESSES
Section 5 of the JAR contemplates a situation where
there is a (a) government employee or official or (b)
requested witness who is not the (1) adverse party’s
witness nor (2) a hostile witness. If this person either (a)
unjustifiably declines to execute a judicial affidavit or (b)
refuses without just cause to make the relevant
documents available to the other party and its
presentation to court, Section 5 allows the requesting
party to avail of issuance of subpoena ad testificandum
or duces tecum under Rule 21 of the
Rules of Court. Thus, adverse party witnesses and
hostile witnesses being excluded they are not covered
by Section 5. Expressio unius est exclusion alterius: the
express mention of one person, thing, or consequence
implies the exclusion of all others.
In other words, there’s no need to get the JA of a hostile
witness or the adverse party witness. Regardless of
whether he unjustifiably declines to execute a JA or
refuses without just cause to present the document, Sec
5 cannot be made to apply to him for the reason that he
is included in the
group of individuals expressly exempt from the
provision’s application. So you don’t apply the provision
precisely because the hostile witness is not covered.
But, if you really want during trial to get the adverse
party as a witness or a hostile witness, what requirement
should we follow?
You cannot call on the adverse party as a witness only
during trial, because that would be unfair. What you
need to do would be to follow the provisions of Rule 132
Section 12 and Rule 25 Section 6
of the ROC.
 EVIDENCE 2019
From the lectures of Atty. Jess Zachael Espejo
College of Law | III Manresa 2019 – 2020
NOTE: Rule 132 Sec 12 talks about unwilling or hostile
witness or adverse party witness.
Section 12. Party may not impeach his own witness. —
Except with respect to witnesses referred to in
paragraphs (d) and (e) of Section 10, the party
producing a witness is not allowed to
impeach his credibility.
A witness may be considered as unwilling or hostile only
if so declared by the court upon adequate showing of his
adverse interest, unjustified reluctance to testify, or his
having misled the
party into calling him to the witness stand.
The unwilling or hostile witness so declared, or the
witness who is an adverse party, may be impeached by
the party presenting him in all respects as if he had been
called by the adverse party, except
by evidence of his bad character. He may also be
impeached and cross-examined by the adverse party,
but such cross-examination must only be on the subject
matter of his examination-in-chief.
If you want to avail that type of witness, you have to
follow Sec 6 of Rule 25.
Section 6. Effect of failure to serve written
interrogatories. — Unless thereafter allowed by the court
for good cause shown and to prevent a failure of justice,
a party not served with written interrogatories may not be
compelled by the adverse party to give testimony in
open court, or to give a deposition pending appeal.
Dean Iñigo before noted that one of the reasons why our
cases take longer with an average of 3 years; and by 3
years it’s already being generous—is because we do not
know about these rules, we do not
know how to avail of these modes of discovery which are
intended to hasten litigation.
FAIRLAND KNITCRAFT CORPORATION vs. ARTURO
LOO PO
Failure to attach annexes is not fatal if the complaint
alleges a sufficient cause of action; evidence need not
be attached to the complaint.
The Judicial Affidavit Rule
On a final note, the Court deems it proper to discuss the
relevance of the Judicial Affidavit Rule or A.M. No. 12-8-
8-SC, where documentary or object evidence are
required to be attached. To begin with, the rule is not
GUERRERO GUINOMLA VIRGILIO TAN 14
applicable because such evidence are required to be
attached to a judicial affidavit, not to a complaint.
Moreover, as the rule took effect only on January 1,
2013, it cannot be required in this case because this was
earlier filed on December 12, 2012.
Granting that it can be applied retroactively, the rule
being essentially remedial, still it has no bearing on the
ruling of this Court. In the Judicial Affidavit Rule, the
attachments of documentary or object evidence to the
affidavits is required when there would be a pre-trial or
preliminary conference or the scheduled hearing. As
stated earlier, where a defendant fails to file an answer
(in default; no need for a pre-trial), the court shall render
judgment, either motu proprio or upon plaintiffs motion,
based solely on the facts alleged in the complaint and
limited to what is prayed for.
NOTE: JA is evidence in a form of testimony. Remember
the requirement in the rule on manner of making
allegations on pleadings—you have to focus on the
ultimate facts and omit mere statements of evidentiary
facts. The only time that it would be requires would be
when it is an actionable document and you avail of the
mode of attaching and then referring to it in the body of
your complaint or answer or reply. Other than these
instances all you have to place are hypothetical
statements.
A complaint does not need to have an attachment.
In this case, the defendant even failed to file an answer,
he is in default and if he’s in default you won’t anymore
have a pre-trial or preliminary conference.
Further modification of Section 5 relating as to how
direct examination is to be made
In the JAR, the direct examination will now be in the form
of judicial affidavits, this is further modified by the
REVISED GUIDELINES FOR CONTINUOUS TRIAL OF
CRIMINAL CASES (A.M. No.15-06-10-SC) which took
effect in September 1, 2017.
Form of Testimony
(a) For First Level Courts
In all criminal cases, including those covered by the Rule
on Summary Procedure, the testimonies of witnesses
shall consist of the duly subscribed written statements
given to law enforcement or peace officers or the
affidavits or counter-affidavits submitted before the
investigating prosecutor, and if such are not available,
testi1nonies shall be in the form of judicial affidavits,
 EVIDENCE 2019
From the lectures of Atty. Jess Zachael Espejo
College of Law | III Manresa 2019 – 2020
subject to additional direct and cross-examination
questions.
The trial prosecutor may dispense with the sworn written
statements submitted to the law enforcement or peace
officers and prepare the judicial affidavits of the affiants
or modify or revise the said sworn statements before
presenting it as evidence.
(b) For Second Level Courts, Sandiganbayan and Court
of Tax Appeals
In criminal cases where the demeanor of the witness is
not essential in determining the credibility of said
witness, such as forensic chemists, medico-legal
officers, investigators, auditors, accountants, engineers,
custodians, expert witnesses and other similar
witnesses, who will testify on the authenticity, due
execution and the contents of public documents and
reports, and in criminal cases that are transactional in
character, such as falsification, malversation, estafa, or
other crimes where the culpability or innocence of the
accused can be established through documents, the
testimonies of the witnesses shall be the duly subscribed
written statements given to law enforcement or peace
officers or the affidavits or counter-affidavits submitted
before the investigating prosecutor, and if such are not
available, testimonies shall be in the form of judicial
affidavits, subject to additional direct and cross-
examination questions.
Discussion
In cases before the MTC—meaning criminal cases
before 1st level courts, in cases of duly subscribed
written statements, even to law enforcement officers.
Remember that in certain cases, criminal investigators
conduct Q&As, which they call the Sinumpaang
Salaysay; or affidavits or counter affidavits submitted
during preliminary investigation before the prosecutor.
That will consist in your testimony similar to summary
rules—the affidavit will take the place of testimony on
direct examination. If (a) & (b) are not available, then in
the form of judicial affidavit.
NOTE: Judicial affidavit is the last option.
RTC, Sandiganbayan CTA and other criminal courts
The form of will depend on the nature of the crime
involved.
Where the demeanor of the witness is not essential in
determining the credibility of the said witness such as
GUERRERO GUINOMLA VIRGILIO TAN 15
expert witnesses who will testify on the authenticity, due
execution and the contents of
public documents and reports, and in criminal cases that
are transactional in character, such as falsification,
malversation, estafa, or other crimes where the
culpability or innocence of the accused can be
established through documents, the testimonies of the
witnesses shall be:
• the duly subscribed written statements given to
law enforcement or peace officers or
• the affidavits or counter-affidavits submitted
before the preliminary investigation and
• if such are not available, testimonies shall be in
the form of judicial affidavits, subject to
additional direct and cross-examination
questions
We are not using JA primarily, we go fist with whatever
is already on record. It’s no longer exclusive that JAR
will be used in criminal cases. Before under the JAR, the
accused may even opt not to have
presentation of evidence by JA.
In all other cases where the culpability or the innocence
of the accused is based on the testimonies of the alleged
eyewitnesses, the testimonies of these witnesses shall
be in oral form.
In cases where demeanor is not essential, conviction
can be secured or the case can be proved simply by
examining documents, there’s more preference of JA
under the Rule on Continuous Trial.
Instead of it being JA, we go back to oral.
The mandate of the SC is one witness per day—you
have to finish the taking of the testimony of the witness
from direct examination until cross-examination.
Atty. JZE: The court is not even allowed to adjourn
before the testimony of the witness is finished.
CROSS-EXAMINATION
Section 6. Cross-examination; its purpose and
extent. — Upon the termination of the direct
examination, the witness may be crossexamined by the
adverse party as to many matters stated in the direct
examination, or connected therewith, with sufficient
fullness and freedom to test his accuracy and
truthfulness and freedom from interest or bias, or the
reverse, and to elicit all important facts bearing upon the
issue.
 EVIDENCE 2019
From the lectures of Atty. Jess Zachael Espejo
College of Law | III Manresa 2019 – 2020
With respect to cross-examination, some lawyers would
find that there is a loop-hole or something wrong about
the testimony of the witness and they want to emphasize
that automatically before the
court and then they grandstand but all you need to do
would be to focus on the testimony of the witness in
order for the witness to admit something based on his
testimony—to make an admission
without him knowing about it.
PURPOSE
• To impeach the credibility of the witness;
• To impeach the credibility of the testimony;
• To illicit admissions;
• To clarify certain matters
NOTE: The course of examination of the witness from
direct examination to re-cross, there are 4 stages, it’s
supposed to be imagined as an inverse triangle. Most of
the questions should be asked during direct, lesser
questions should be asked during cross, lesser still
should be asked during re-direct and then little to no
questions at all are being asked during the re-cross.
That’s the reason why under Sec 6, you are only allowed
to crossexamine on the matters stated during the cross
examination (may be sir meant direct?)
1. ENGLISH RULE
When a witness is called to testify to a particular fact, he
becomes a witness for all purposes and may be fully
cross examined upon all matters material to the issue,
the examination not being confined to the matter
inquired about in the direct examination.
Everything under the sun can be asked for as long as it
is material and relevant, you can test the credibility of the
witness.
Ex. “Isn’t it a fact Mr. Witness that you were in
elementary, you cheated?”
You can ask that. You are saying that you have this
propensity for dishonesty. Ordinarily, that would not be
allowed because it is immaterial or irrelevant but judges
would allow that.
2. AMERICAN RULE
Cross-examination is restricted to facts and
circumstances which are connected with the matters that
have been stated in the direct examination of the
witness, such that if the opponent cross examines the
witness on a fact not testified to during the direct, it is
susceptible to a motion to strike on the ground of not
being covered by the direct examination.
GUERRERO GUINOMLA VIRGILIO TAN 16
GR: The Philippines follow the English Rule.
XPN: The American rule is followed with respect to the
crossexamination of an accused of a hostile witness.
Doctrine of Incomplete Testimony
A testimony not subjected to cross-examination is
considered hearsay, so what happens when the cross-
examination of a witness cannot be done or completed
when it is due to causes attributable
to the party who offered the witness.
EFFECT: The incomplete testimony is rendered
incompetent and should be stricken off the record.
The situation embodied in this doctrine: There’s this
direct examination made by the proponent, and he
opponent (not the party offering the witness) would say,
“Your Honor, can we have our cross-examination
deferred to a different date because I am not so
prepared. We are going to wait for the transcript and
prepare our cross accordingly”.
XPN: Where the prosecution witness was extensively
crossexamined on the material points and thereafter
failed to appear and cannot be produced despite a
warrant of his arrest.
This means that there was a cross-examination but it
could not be completed for lack of material time. If you
postpone due to lack of material time like when it is
already past noon, and the witness being cross-
examined dies or becomes incapacitated or he
disappears in such a way that his existence is unknown
and he cannot be recovered anymore. Will that
testimony be allowed to remain on record? The court
now has to make a determination on whether or not he
cross that exists on record is already an extensive cross-
examination.
If the court finds that it is already extensive, you don’t
have to finish it, it will remain on record.
NOTE: The effect of lack of cross-examination is that the
testimony of a witness is technically hearsay under the
2nd concept of hearsay and being such, it should not be
admissible and the remedy of the
opponent is a motion to strike/ that the testimony be
stricken off the record.
WAIVER
We need to remember as well that cross-examination is
a right that can be waived.
 EVIDENCE 2019
From the lectures of Atty. Jess Zachael Espejo
College of Law | III Manresa 2019 – 2020
While it is guaranteed by due process, it is subject to the
same modes of waiver that is allowed by the law:
express waiver, or implied waiver.
Express Waiver
If you are asked: “Counsel, cross-examination?” “We do
not have ay crossexamination,
Your Honor.” or; “No cross, Your Honor”
But why would you not cross-examine? There goes your
opportunity to test the credibility of the witness and to
poke holes in his testimony. You betray your client by
saying no cross.
Implied Waiver
Where the party has had the opportunity to cross-
examine the witness but failed to avail himself of it, he
necessarily forfeits the right to cross-examine and the
testimony given on direct examination will be received or
allowed to remain on record. (Dela Paz v IAC)
The conduct of the party which may be construed as an
implied waiver of the right to cross-examine may take
many forms but the basic principle underlying the
application of the rule on implied
waiver is that the party was given the opportunity to
confront and cross-examine the opposing witness but
failed to take advantage of it for reasons attributable to
himself.
Fortuitous Causes
What rules should be followed incase of failure to cross-
examine due to fortuitous causes such as the death or
incapacity of a witness.
If it is the fault of the proponent Ex. If the motion for
postponement is because the witness is
already being too emotional.
Remedy: Motion to strike It will not be allowed to
remain on record but it will depend on the
reason why the cross was not conducted after
the completion of the testimony on direct.
If the cross is deferred at the instance of the
proponent or the witness himself, the testimony
on direct examination must be stricken off the
record because the failure to cross-examine was
due to a cause not attributable to the opponent.
If you’re the one presenting and you’re the one
who is at fault why the witness can no longer be
cross-examined because you are the one asking
for postponement, then it is already a ground to
be stricken off the record.
GUERRERO GUINOMLA VIRGILIO TAN 17
If cross was deferred at the instance of the court
Ex. Due to lack of material time, or due to a wedding to
be presided over by the judge.
Effect: The testimony in direct must be stricken
off the record because the failure to cross is due
to the cause not attributable to the opponent in
principle.
This is in principle only, can you blame the judge
if he has a wedding to officiate? Also, you do not
object or comment when it is the judge asking
the questions because that is not being
respectful. If you feel that the judge is biased
towards your opponent, then file a motion for
inhibition—do not embarrass the judge in open
court.
If the deferment is due to a cause attributable to the
opponent—the one who should cross-examine
Ex. Opponent says, “I’m not ready to cross-examine,
Your Honor. Can we have it postponed?”
Effect: The testimony on direct examination
would stand if the witness is no longer available
to testify later on. It may be used by the court, in
it’s consideration of the controversy not
susceptible to a motion to strike— amounting to
a waiver of cross.
Section 7. Re-direct examination; its purpose and
extent. — After the cross-examination of the witness
has been concluded, he may be re-examined by the
party calling him, to explain or supplement his answers
given during the cross-examination. On re-
directexamination,
questions on matters not dealt with during the
crossexamination, may be allowed by the court in its
discretion.
Direct examination by the proponent;
Cross examination by the opponent;
Re-direct examination by the proponent again—the party
who
calls the witness.
SCOPE
Sec 7 says that the examination should only be for the
purpose of explaining or supplementing answers given
during the crossexamination. It has to be American rule
in a way because it has to be limited in scope—
questions or matters dealt with during the cross.
But because of the last sentence, we’re constrained to
again call it an English Rule because on re-direct
examination questions on matters not dealt with during
 EVIDENCE 2019
From the lectures of Atty. Jess Zachael Espejo
College of Law | III Manresa 2019 – 2020
the cross-examination maybe allowed by the court in it’s
discretion. This is giving too much power to the court in
determining whether he will allow the questions or not
and this leads to delay.
“Was it not a fact that the time of collison it was
8:36pm?” "Objection your honor, Leading!" "Oh okay I
will rephrase, "What was the time when the collision
happen?" Pero ayaw ninyo na buhata permanente kay
everything nalang ipa re-phrase. Don't abuse it. Don't do
it as a habit, pwede ka ma-censure.
Section 12. Party may not impeach his own witness.
—Except with respect to witnesses referred to in
paragraphs (d) and (e) of Section 10, the party
producing a witness is not allowed to impeach his
credibility.
A witness may be considered as unwilling or hostile only
if so declared by the court upon adequate showing of his
adverse interest, unjustified reluctance to testify, or his
having misled the party into calling him to the witness
stand.
The unwilling or hostile witness so declared, or the
witness who is an adverse party, may be impeached by
the party presenting him in all respects as if he had been
called by the adverse party, except by evidence of his
bad character. He may also be impeached and cross-
examined by the adverse party, but such cross-
examination must only be on the subject matter of his
examination-in-chief.
Just read this. It talks about impeachment. It's not the
impeachment that we find in the constitution, it's
destroying or putting doubts upon the credibility of a
witness. Remember the general rule is if you are
presenting your own witness, you should not impeach
him. Dili nimo dauton unless hostile siya or unwilling.
Kana bang tipo na gitawag nimo to be your witness
under the promise niya nga mutestify sya for your side
unya pag abot ngadto kay dili diay. Baliktad ang iyang
gitestify. So he misled you in to calling him to the witness
stand that's the time when you can impeach your own
witness but only after a declaration that he is a hostile
witness. You ask for a declaration from the court first.
Now what about the adverse party's witness. Section 11.
GUERRERO GUINOMLA VIRGILIO TAN 18
Section 11. Impeachment of adverse party's witness.
— A witness may be impeached by the party against
whom he was called, by contradictory evidence, by
evidence that his general reputation for truth, honestly,
or integrity is bad, or by evidence that he has made at
other times statements inconsistent with his present,
testimony, but not by evidence of particular wrongful
acts, except that it may be shown by the examination of
the witness, or the record of the judgment, that he has
been convicted of an offense.
A witness may be impeached by contradictory evidence.
Mao ni ang iyahang ginaingon, mu present pud kag
witness or other evidence to the contrary. That's the way
you impeach it or:
1. By evidence that his general reputation for truth
honesty and integrity is bad.
So in essence you are presenting character evidence
which is as a general rule, not allowed.
2. By evidence that he has made at other times
statements inconsistent with his present testimony.
So naay prior inconsistent statements. You are saying to
the court that in this other case, mao ni iyang giingon, or
sa lain na interview mao ni iyang giingon, pero karon,
lahi nasad iyang giingon. So there are inconsistent
statements.
Other methods of impeachment not found in the rules:
1. By showing improbability or an unreasonableness of
testimony. In this case, no need to rub it in the face of
the judge na improbable abg testimony. The judge can
notice it through cross examination. (Example:
Testimony of a witness na nalagpot sya 50 meters and
he was asked why he is still alive.)
2. By showing bias, prejudice and hostility. Favorite
method of impeachment. Like a wife testifying in favor of
husband.
3. By showing social connections, occupation and
manner of living.
4. By showing interest in the outcome of the case.
Section 14. Evidence of good character of witness.
— Evidence of the good character of a witness is not
 EVIDENCE 2019
From the lectures of Atty. Jess Zachael Espejo
College of Law | III Manresa 2019 – 2020
admissible until such character has been impeached.
I want you to remember that:
1. the first process is impeachment. Impeachment is
destroying the credibility of a witness.
2. Second process is rehabilitation. If the witness has
been impeached, you are allowed to present evidence to
rehabilitate his credibility.
3. Third is the process of bolstering. Kana bitawng mag
present ka ug evidence nga buotan kaayo, trustworthy
ang witness despite the fact that his character has never
been impeached. That is bolstering.
And then we have evidence of prior inconsistent
statements known as laying the predicate and it is
down in the following manner:
1. The witness must be confronted with such statements
with the circumstances of the time, places, and persons
present in which they were made.
2.The witness must be asked whether he made such
statements and if so allow to explain them and
3. If the statements be in writing, it must be shown to the
witness before any question is asked to him concerning
them.
What is the purpose of laying the predicate? To allow the
witness to admit or deny the prior statement and afford
him an opportunity to explain the same. That is very
important if you're impeaching him with prior inconsistent
statements.
So let's review the concept of voir dire. Voir dire is
competency examination of a witness. So the other party
is saying that your witness is not competent to testify so
giqualify nimo ang witness by means of voir dire
examination. Qualifying the witness applies if your
witness is an expert witness and the other party does not
admit that he is an expert. So it is done by asking
preliminary questions as the training, education, and
experience of the witness.
Then you have laying the basis or foundation. When
is this applicable? If you want to present substitutionary
proof instead of the original document. Remember:
GUERRERO GUINOMLA VIRGILIO TAN 19
Existence, Execution, Loss, Contents. That is laying
the basis or foundation from the case of Ong Ching Po
vs. CA. And then you have laying the predicate. That is
the distinction.
Section 15. Exclusion and separation of witnesses.
— On any trial or hearing, the judge may exclude from
the court any witness not at the time under examination,
so that he may not hear the testimony of other
witnesses. The judge may also cause witnesses to be
kept separate and to be prevented from conversing with
one another until all shall have been examined.
We discussed this already under Rule on Examination of
Child witness. This is an example of a rule that doesn't
work because pila ray pag pangutana after sa hearing,
"unsay mga questions sa imo bai?" Dali ra kaayo ni
maisahan na rule.
Section 16. When witness may refer to
memorandum. — A witness may be allowed to refresh
his memory respecting a fact, by anything written or
recorded by himself or under his direction at the time
when the fact occurred, or immediately thereafter, or at
any other time when the fact was fresh in his memory
and knew that the same was correctly written or
recorded; but in such case the writing or record must be
produced and may be inspected by the adverse party,
who may, if he chooses, cross examine the witness
upon it, and may read it in evidence. So, also, a witness
may testify from such writing or record, though he retain
no recollection of the particular facts, if he is able to
swear that the writing or record correctly stated the
transaction when made; but such evidence must be
received with caution.
Just read and remember this part because it's a possible
bar exam question. What's the difference between
recorded recollection and refreshing recollection?
Or distinguish between past recollection recorded and
present memory refresh. It's in my book.
The main difference that we need to remember is when
we talk about time recollection recorded, what's the
evidence being presented here? It's the document or
memorandum. The record or documentation. Even if the
witness does not recall, actually, he is going to present
the evidence even if he has no recollection whatsoever.
So you may read from that. But when we talk about
 EVIDENCE 2019
From the lectures of Atty. Jess Zachael Espejo
College of Law | III Manresa 2019 – 2020
present memory refresh, you are not actually
presenting any document in evidence. You are only
presenting testimonial evidence as aided by the
document.
Section 17. When part of transaction, writing or
record given in evidence, the remainder, the
remainder admissible. — When part of an act,
declaration, conversation, writing or record is given in
evidence by one party, the whole of the same subject
may be inquired into by the other, and when a detached
act, declaration, conversation, writing or record is given
in evidence, any other act, declaration, conversation,
writing or record necessary to its understanding may
also be given in evidence.
Section 18. Right to respect writing shown to
witness. — Whenever a writing is shown to a witness, it
may be inspected by the adverse party.
Just read these. Nothing much there.
Now let's go to authentication of documents.
Authentication is the act of proving the due execution
and genuineness of a documentary evidence.
Take note:
Salas v. Sta. Mesa Market, July 12, 2007. Supreme
Court defined Authentication as when a witness
positively testifies that a document presented as
evidence is genuine and has been duly executed or that
the document is neither spurious or counterfeit nor
executed by mistake or under duress.
B. AUTHENTICATION AND PROOF OF DOCUMENTS
Section 19. Classes of Documents. — For the purpose
of their presentation evidence, documents are either
public or private.
Public documents are:
(a)The written official acts, or records of the official acts
GUERRERO GUINOMLA VIRGILIO TAN 20
of the sovereign authority, official bodies and tribunals,
and public officers, whether of the Philippines, or of a
foreign country;
(b)Documents acknowledged before a notary public
except last wills and testaments; and
(c)Public records, kept in the Philippines, of private
documents required by law to the entered therein.
All other writings are private.
Take note that Sec. 19 actually states what public
documents are. So there are only three types. All other
are documents are private.
Let’s dissect:
Section 23. Public documents as evidence. —
Documents consisting of entries in public records made
in the performance of a duty by a public officer are prima
facie evidence of the facts therein stated. All other public
documents are evidence, even against a third person, of
the fact which gave rise to their execution and of the
date of the latter.
So since they are prima facie evidence of the facts
stated in such public document, it makes them self-
authenticating to a certain extent. The first part of section
23 is merely a repetition because we have discussed
this in section 44 as one of the exceptions to the hearsay
rule.
Section 24. Proof of official record. — The record of
public documents referred to in paragraph (a) of Section
19, when admissible for any purpose, may be evidenced
by an official publication thereof or by a copy attested by
the officer having the legal custody of the record, or by
his deputy, and accompanied, if the record is not kept in
the Philippines, with a certificate that such officer has the
custody. If the office in which the record is kept is in
foreign country, the certificate may be made by a
secretary of the embassy or legation, consul general,
consul, vice consul, or consular agent or by any officer in
the foreign service of the Philippines stationed in the
foreign country in which the record is kept, and
authenticated by the seal of his office.
Section 30. Proof of notarial documents. — Every
instrument duly acknowledged or proved and certified as
provided by law, may be presented in evidence without
 EVIDENCE 2019
From the lectures of Atty. Jess Zachael Espejo
College of Law | III Manresa 2019 – 2020
further proof, the certificate of acknowledgment being
prima facie evidence of the execution of the instrument
or document involved.
Remember that when a document is executed between
private individuals, the function of notarization would be
to convert such document into a public one and renders
it admissible in court without proof of its authenticity. Not
only that, it is now entitled to the presumption of
regularity of notarial acts. (Lazaro v. Agustin, April 15,
2010)
Section 27. Public record of a private document. —
An authorized public record of a private document may
be proved by the original record, or a copy thereof,
attested by the legal custodian of the record, with an
appropriate certificate that such officer has the custody.
Perfect example of this is a tax return. Who prepares tax
returns? Kita taxpayers. You prepare it you submit it.
When it is in your possession, it's a private record. Once
you submit it, it becomes public. But remember that tax
records are supposed to be confidential for security
purposes.
Section 20. Proof of private document. — Before any
private document offered as authentic is received in
evidence, its due execution and authenticity must be
proved either:
(a) By anyone who saw the document executed or
written; or
(b) By evidence of the genuineness of the signature or
handwriting of the maker.
Any other private document need only be identified as
that which it is claimed to be.
So section 20 highlights the distinction between private
and public document. Private document requires
authentication while public document is normally self-
authenticating. A private document cannot be admitted
in evidence if it has not been duly authenticated.
Now take note when authentication may be
dispensed with?
1. As a rule, when the private document is an actionable
document, not denied under oath, the genuiness and
due execution are deemed admitted by the adverse
party;
GUERRERO GUINOMLA VIRGILIO TAN 21
2. When the authenticity and due execution of the
document are otherwise admitted like in judicial
admission. Kung giadmit niya in a stipulation during pre-
trial. No authentication is required;
3. The writing is a notarial document acknowledged,
proved or certified ;
4. or the writing is a public document on record under
Sec. 19 ;
5. when such genuineness and due execution are
immaterial to the issue;
6. When the private document is an ancient document.
(Sec. 21)
Elements for ancient document:
1. Document is more than 30 years old;
2. That it be produced from a custody in which it would
naturally be found genuine;
3. That it is unblemished by any alteration or
circumstances of suspicion;
Now proving the genuineness of a handwriting. How
would you do it?
Section 22. How genuineness of handwriting proved. —
The handwriting of a person may be proved by any
witness who believes it to be the handwriting of such
person because he has seen the person write, or has
seen writing purporting to be his upon which the witness
has acted or been charged, and has thus acquired
knowledge of the handwriting of such person. (So when
the witness proves the genuineness of the handwriting,
of somebody else, he is supposed to be testifying his
personal knowledge. Kay familiar sya sa handwriting.)
Evidence respecting the handwriting may also be given
by a comparison, made by the witness or the court, with
writings admitted or treated as genuine by the party
against whom the evidence is offered, or proved to be
genuine to the satisfaction of the judge.
Take note that we have discussed handwriting already
and that is in Section 15. Opinion of Ordinary Witness.
You can give your opinion of a handwriting if you have
sufficient familiarity with it. SO to summarize, how do
you prove the genuineness of a handwriting:
 EVIDENCE 2019
From the lectures of Atty. Jess Zachael Espejo
College of Law | III Manresa 2019 – 2020
1. By any witness who actually saw the person writing
the instrument;
2. By any person who is familiar and who has acquired
knowledge of the handwriting of such person;
3. His opinion as to the handwriting being an exception
to the opinion rule by a comparison to the questioned
handwriting from the admitted specimen's thereof
through autoptic proference or by an expert witness.
Kani mao ni trabaho sa NBI or Questioned Document
expert para mahibal-an kung isa ra ba jud na silag writer.
then section 25, nothing much there...
Section 25. What attestation of copy must state. —
Whenever a copy of a document or record is attested for
the purpose of evidence, the attestation must state, in
substance, that the copy is a correct copy of the original,
or a specific part thereof, as the case may be. The
attestation must be under the official seal of the attesting
officer, if there be any, or if he be the clerk of a court
having a seal, under the seal of such court.
Section 26. Irremovability of public record. — Any public
record, an official copy of which is admissible in
evidence, must not be removed from the office in which
it is kept, except upon order of a court where the
inspection of the record is essential to the just
determination of a pending case.
We have discussed this in relation to exception to the
best evidence rule when the original of the document is
in the custody of a public office. So ang imong
mapresent lang ana is ang certified true copy. Not the
original because of this section. It is supposed to be
irremovable.
Then Section 28.
Section 28. Proof of lack of record. — A written
statement signed by an officer having the custody of an
official record or by his deputy that after diligent search
no record or entry of a specified tenor is found to exist in
the records of his office, accompanied by a certificate as
above provided, is admissible as evidence that the
records of his office contain no such record or entry.
Perfect example here is a CeNoMar. Certificate of no
Marriage. Meaning, based sa records sa PSA, walay
bisan unsa na marriage recorded.. Naa koy client sauna
na dili na daw sya mukuha ug judicial order to nullify his
marriage kay nakakuha na daw syag CeNoMar. Buot
pasabot niya, tungod naa na syay cenomar na
GUERRERO GUINOMLA VIRGILIO TAN 22
dokumento, kalimtan na niya iyang kasal sa Manila. Can
it prove non-marriage? Can it be evidence na wala ka
naminyo sukad? No. It only means na walay record ang
office. It doesn't mean na wala ka nagpakasal. Gifile-an
ug bigamy karon kay tungod wala nag pa-annul.
Nagpasa raman syag cenomar. Unsa iyang defense
karon? Kadtong iyang Cenomar. Again, it is only
admissible as evidence that the records of his office
contain no such record or entry.
Section 29. How judicial record impeached. — Any
judicial record may be impeached by evidence of: (a)
want of jurisdiction in the court or judicial officer, (b)
collusion between the parties, or (c) fraud in the party
offering the record, in respect to the proceedings
Section 31. This talks about alteration in a document.
How do you explain it?
Section 31. Alteration in document, how to explain. —
The party producing a document as genuine which has
been altered and appears to have been altered after its
execution, in a part material to the question in dispute,
must account for the alteration.
He may show that the alteration was made by another,
without his concurrence, or was made with the consent
of the parties affected by it, or otherwise properly or
innocently made, or that the alteration did not change
the meaning or language of the instrument.
If he fails to do that, the document shall not be
admissible in evidence.
This talks about alteration in a document. How do you
explain it? Self- explanatory.
Section 32. Seal. — There shall be no difference
between sealed and unsealed private documents insofar
as their admissibility as evidence is concerned.
Section 33. Documentary evidence in an unofficial
language. — Documents written in an unofficial
language shall not be admitted as evidence, unless
accompanied with a translation into English or Filipino.
To avoid interruption of proceedings, parties or their
attorneys are directed to have such translation prepared
before trial.
This again proves my point that English is not the only
language of the Philippine Bar. Filipino is also an official
 EVIDENCE 2019
From the lectures of Atty. Jess Zachael Espejo
College of Law | III Manresa 2019 – 2020
language. Nakabutang diri, "Document in an unofficial
language". So unsa kuno ang pwede? English or
Filipino, making Filipino an official language.
Pero basta para sa ako, basta mag tagalog, bigaon. lol
Now, let's go to offer and objections:
Let's just go the details because we have already
discussed this. Again, if we are talking about evidence,
documentary or object, you have to
1. Mark first, afterwards,
2. It's identified by the witness, and then
3. It is authenticated (proof of genuineness and due
execution).
You are supposed to allow the adverse party to inspect
it. Dili pwede na ikaw-ikaw lang mag gunit. Dapat ipa-
inspect nimo na sa pikas. Then you have this formal
offer. Remember, you cannot object unless there is an
offer. In the presentation of evidence, kung wala pa gi-
offer, do not object yet, except objection in the course of
examination. Like, objections as to leading and
misleading questions or badgering the witness. So these
are objections in the course of questioning. Pero sa
presentation mismo sa evidence, if there is no offer,
there is no objection.
And then the so-called Tender of Excluded Evidence
or proffer..
Let's go first with
Section 34. Offer of evidence. — The court shall
consider no evidence which has not been formally
offered. The purpose for which the evidence is offered
must be specified.
So gamiton nako na example ning among kaso sa
Supreme Court. Ang evidence sa petitioner ngadto was
merely attached in a motion filed before the court. She
was not even a party to the cas. And therefore if the SC
rules that she is an heir, it will be binding under this rule,
that the court shall consider no evidence which has not
been formally offered. We even have the certification to
the effect na wala juy hearing na nahitabo so walay offer
of evidence from the petitioner so dapat mag offer ka.
The purpose for which the evidence is offered must be
specified. Ngano nimo ni i-present ni nga witness? You
have to state the purpose of his testimony or the
document or the object.
GUERRERO GUINOMLA VIRGILIO TAN 23
Jurisprudence tells you that formal offer is necessary
because judges are mandated to rest their findings
of facts on the judgment only and strictly upon the
evidence offered by the parties in the trial. Its function
is to enable the trial judge to know the purpose for which
the proponent is presenting the evidence.
Ngano kailangan mahibal-an sa korte? Because the
court may find that "no, you do not need that because it's
already admitted. You do not need to present this
witness because the facts he is going to testify were
already admitted by the adverse party so we can
dispense with this witness." Or if ang imuhang i-present
na evidence is fruit of poisonous tree. The court can tell
you not to present that because it will not be accepted.
So ahead of time you are telling the court that this is my
evidence and this is the purpose.
So that is the first purpose of offer, you give the court
the opportunity to screen it at the onset sa sugod pa lang
kung i-admit ba or dili. Second, it allows the opposing
parties to examine the evidence and object to its
admissibility. Moreover, it facilitates review as the
appellate court will not be required to review documents
not previously scrutinized by the trial court. Kung wala
gi-offer sa trial court, ma scrutinize ba na? Dili because
again, the court shall not consider evidence which has
not been formally offered.
Now what is the effect of failure to offer evidence? Any
evidence that has not been offered shall be excluded.
Example of Dean Iñigo is offer of testimonial evidence.
Naa syay kalaban na younger lawyer his student sa
kaso. Natingala ang young lawyer na ngano wala nag
object si dean sa testimony sa iyang witness. Dean was
uncharacteristically silent because diay to, that lawyer
failed to make a formal offer of testimony of the witness.
So all dean had to do at the end of the testimony was to
move to strike the entire testimony for lack of formal
offer. Ingun ana ka fatal.
So what are the exceptions where there was no offer but
the SC allowed it: Tulo ra jud ka kaso inyong timan-an.
1. Tiomico v. CA. -- Substantial compliance. The SC
here said na dili man nimo kinahanglan ingnon ang word
na "formal offer". It is enough na you were able to state
the purpose of the testimony. The tendency of the rules
on evidence, is towards substantial justice rather than
strict adherence to technicalities. To condemn the
disputed testimony as inadmissible due to the failure of
the private prosecutor to properly observe the rules on
presentation of evidence, would render nugatory, and
defeat the proceedings before the lower court.
 EVIDENCE 2019
From the lectures of Atty. Jess Zachael Espejo
College of Law | III Manresa 2019 – 2020
2. People v. Mate and 3. Mato v. CA. -- The SC has
relaxed the procedural rule and allowed the trial court to
consider the evidence not formally offered on the
condition that the following requisites are present:
1. Evidence must have been duly identified by testimony
duly recorded
2. And the same must have been incorporated in the
records of the case.
Will this apply in our SC case, Dili . That's why the SC
have to come up a new exception if they are going to
consider the evidence of the petitioner. Why? Wala may
testimony duly recorded.
Now, when do you make offer? We have discussed this
already,
Section 35. When to make offer. — As regards the
testimony of a witness, the offer must be made at the
time the witness is called to testify. Documentary and
object evidence shall 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.
You say, "we call the witness to the witness, your honor,
Witness X (name and personal circumstances for the
record)." Take an oath and tell the court that "the
testimony of this witness your honor is offered to prove
the following matters (and then enumerate the
purpose)."
Remember kung dili specific ang offer, you can object
because it is now outside the parameters of this rule.
You cannot just say " I am offering the statement of the
witness to support the testimony of our cause of action."
How so? It has to be specific para makabalo ang kontra
kung objectionable ba ang purpose or dili.
Documentary and object evidence shall 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.
So if a document is offered unya kita nimo na dili
original, object dayon ka? Premature na imong
objection. When diay ka dapat mu-object pag
documentary? After the offer which is after the
presentation of the party's testimonial evidence.
Premature imo objection kung document palang ang na-
offer unya wala pay testimonial presentation.
GUERRERO GUINOMLA VIRGILIO TAN 24
Remember that formal offer should be done orally,
unless allowed by the court to be in writing. So dapat,
pag oral ang offer, oral pud ang objection...
So dapat pag oral imong offer, oral pud imong objection
at that time. So here’s this lawyer from the PAO.
Casual conversation lang: “Sir wala ko ka-prepare, kay
naa ko class as ADDU, basin pwede na pagkahuman
testify sa imong witness, human na cross-examine,
mangayo na lang ko how many days to file formal offer
and comment.”
Murag gi-allergic siya sa word na Ateneo because he is
not Ateneo graduate. Naningkamot kog akoa, naextend
akong formal offer and nakita niya na nagobject kog
tarong, argue sa korte, and he said “your Honor can we
be given 15days to make a formal offer of our
documentary exhibits?” So naglagot ko nagstorya ko
tarong unya ing ana.
So ang general rule is ORAL but in practice, 90% of
cases, in WRITING ang formal offer of documentary
exhibits. Under the Judicial affidavit rule,
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.
So tanawon nimo mga JA, unsa na na-identify or marked
so far ang imong exhibit because you are doing pre-
marking on your JA. So all you have to do is go back to
your JA and basahin mo. So the intention of the Judicial
Affidavit Rule is to go back to the general rule which is
ORAL OFFER of documentary exhibits rather than
formal offer in writing. So balik ta sa general rule not
exception. Under the rule on Continuous Trial, the offer
of evidence again should be made orally including the
comment or objection thereto. Di na mangayo in writing
supposed to be, the parties are required to make his/her
oral offer of evidence on the same day after the
 EVIDENCE 2019
From the lectures of Atty. Jess Zachael Espejo
College of Law | III Manresa 2019 – 2020
presentation of his/her last witness and the opposing
party is required to immediately interpose his/her oral
comment or objection thereto thereafter the court shall
make ruling on the offer of evidence included on the
same day. That’s the big thing, kay ang Supreme Court
recognizes that the liberality of the rules has been
abused to delay the submission of cases. So the
intention is mubalik ta sa original, oral tanan, oral offer
oral objection oral ruling. Mao na siya.
Take note that under the rule on Continuous Trial in
making the offer, the counsel shall cite the specific page
numbers of the Court record where exhibits being
offered are found and attached thereto, the court shall
ensure that all exhibits offered are submitted to it on the
same day of offer. If exhibits are not attached to the
record, the party making the offer must submit the same
during the offer of evidence in court.
Section 36. Objection. — Objection to evidence offered
orally must be made immediately after the offer is made.
Objection to a question propounded in the course of the
oral examination of a witness shall be made as soon as
the grounds therefor shall become reasonably apparent.
An offer of evidence in writing shall be objected to within
three (3) days after notice of the unless a different period
is allowed by the court.
In any case, the grounds for the objections must be
specified. (36a)
Now on OBJECTIONS, just remember the purpose, it’s
stated there in the book which I cited or took from Riano.
Out inadmissible evidence, there are two types or
purpose, to protect the record, to protect a witness from
being enticed by the adverse counsel to expose the
adversaries unfair tactics by inconsistently asking
obvious leading to questions and to give the trying court
the opportunity to correct its own errors and at the same
time that the ruling adversely objector may supply the
reason to invoke records happening. Just be familiar
because they are easily digested by your brains kaning
mga purpose.
When do you make objection? Remember, after OFFER
with the exception of questions propounded in the
course of oral examination. So kung question siya, you
make the objection as soon as the ground for objections
shall be reasonably apparent. Remember “reasonably
apparent”.
Under the Judicial Affidavit Rule, take note:
GUERRERO GUINOMLA VIRGILIO TAN 25
Section 6. Offer of and objections to testimony in judicial
affidavit. - The party presenting the judicial affidavit of his
witness in place of direct testimony shall state the
purpose of such testimony at the start of the
presentation of the witness. The adverse party may
move to disqualify the witness or to strike out his affidavit
or any of the answers found in it on ground of
inadmissibility. The court shall promptly rule on the
motion and, if granted, shall cause the marking of any
excluded answer by placing it in brackets under the
initials of an authorized court personnel, without
prejudice to a tender of excluded evidence under
Section 40 of Rule 132 of the Rules of Court.
So in other words, objectay ta then the court should rule
dayon.
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.
We discussed section 8 when we were talking about the
best evidence rule and the parole evidence rule. Diba,
Distinction na when the offer and when to object as well.
Remember.
BEST EVIDENCE PAROLE EVIDENCE
RULE RULE
Your evidence is We are not talking
DOCUMENT. about a document
here.
When do you make
offer? At the end of the What are you
testimonies of all of objecting to? You are
your witnesses. objecting to testimony
tempting to change or
vary the terms of the
written agreement. So
it can either be
 EVIDENCE 2019
From the lectures of Atty. Jess Zachael Espejo
College of Law | III Manresa 2019 – 2020
apparent during the
offer in which case
you’re supposed to
make an objection
immediately after the
offer.
If it is by reason of a
question, what else
did you agree with to
the defendant that is
not found in the
document? You object
immediately because
the objection on the
nature of the question
has become
reasonably apparent.
That’s what we do
under the rule on
Continuous Trial. It is
immediate objection.
Immediate ruling of
the court
Section 37. When repetition of objection
unnecessary. — When it becomes reasonably apparent
in the course of the examination of a witness that the
question being propounded are of the same class as
those to which objection has been made, whether such
objection was sustained or overruled, it shall not be
necessary to repeat the objection, it being sufficient for
the adverse party to record his continuing objection to
such class of questions. (37a)
Section 37 is very important. The so called “Continuing
Objections”. When do you apply section 37? When you
know and feel that no matter what you do, the court will
not favour you. You have no reason to expect that the
Court will not change its mind.
Example:
Counsel: “Mr. Witness what other conditions did
you agree with the plaintiff which is not
contained on your written agreement executed
on march 12, 2019?”
Opposing Counsel: “Objection your Honor, the
question calls for an answer that violates the
parole evidence rule.”
And the Court will “objection overruled.” The Court does
not believe that there is such a thing as Parole evidence
GUERRERO GUINOMLA VIRGILIO TAN 26
rule kay nakalimot siya. So nitubag ang witness, gi-ingon
sa kontrat bigyan ani. Right? Next question.
Counsel: “What else if any, did that agreement
of yours stipulate outside of the agreement?”
Opposing Counsel: “Objection your Honor, again
it violates the parole evidence rule.”
COURT: “Objection overruled”.
Tubag na pud ang witness, next question again what
else if any, did you agree with the plaintiff in addition to
what is contained in the document. Kung nag-objection
your Honor ka, and dili sustain imong objection, that’s
the time where you state your CONITNUING
OBJECTION (Your Honor, we wish to state our objection
to questions of this sort on the ground of violating parole
evidence rule. We are making our continuing objection to
such evidence, your Honor). So every time na
mangontra siya of the same gihapon of objectionable
nature, diba, di na kailagan mutindog ug objection your
Honor kay wala gyud jud kay chancena magbago. That’s
what you will do.
Section 38. Ruling. — The ruling of the court must be
given immediately after the objection is made, unless the
court desires to take a reasonable time to inform itself on
the question presented; but the ruling shall always be
made during the trial and at such time as will give the
party against whom it is made an opportunity to meet the
situation presented by the ruling.
The reason for sustaining or overruling an objection
need not be stated. However, if the 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. (38a)
When should the Court rule on objections? In the course
of the trials immediately after the objection is made
unless the court desires to take a reasonable time to
inform itself on the question presented. Meaning? Dili
siya sure. Some judges tapulan, kana bang I will resolve
these objections first we’ll just postpone the hearing in
the meantime because I feel like it’s imperative that I
should resolve these objections first.
What happens when the objection is a compound
objection?
Take note that if the court sustains the objection, what’s
the reason for the court sustaining it? So the court
agrees with your ground for objection. So what’s the
ground of why overrule? Because it’s not violative of
parole evidence rule. It does not need to be stated, it’s
 EVIDENCE 2019
From the lectures of Atty. Jess Zachael Espejo
College of Law | III Manresa 2019 – 2020

either a yes or a no. That’s why, the reason for of the witness and the substance of the proposed
sustaining your objection or overruling an objection need testimony because ON APPEAL you can always argue
not be stated. that had the court considered the testimony of this
excluded witness, the result of the case would have
In the case of compound objections, meaning ni-object been different. So that’s only for the purpose of appeal
ka, based on this rule and then another rule the court will can it tender an excluded evidence.
have to state which of those grounds if not both ang
reason why need to sustain or overrule the objection. I like this “Tender of excluded evidence” because it’s
Why that is court purposes of appeal. Kay kung sustain simple. You are tendering or offering, of excluded of
niya ang objection, what’s the effect? Evidence cannot evidence. Gidawat pero imong gi-tender na pud for
be presented on that point. So, kung daghan ang purposes of appeal. Maka-libog offer of evidence and
grounds dapat very specific ang reason sa court why it offer of proof. So when parties are denied the right to
will disallow the evidence based on that objection. So produce evidence, that party must offer what evidence
purposes of appeal so mao na to ang imohang question. would have shown at the court for the purpose to allow
Under the Judicial Affidavit Rule, just take note, the court the court to know the nature of the testimony or the
is required to immediately or promptly as soon as the documentary evidence and convince the trying judge to
objection is made. permit the evidence or testimony and to create and
preserve the record. That’s the more important part,
Section 39. Striking out answer. — Should a witness APPEAL. Kay kung exclude ka sa korte, ang imong
answer the question before the adverse party had the probability, mapildi. If it’s so important to you, kailangan
opportunity to voice fully its objection to the same, and mo siya tender na nagtuo gyud ka na mudaog ka kung
such objection is found to be meritorious, the court shall kintahay, naaccept imong evidence. So confusing siya,
sustain the objection and order the answer given to be you have offer of evidence vs. offer of proof. This may
stricken off the record. be a possible bar question, distinguish both. Offer is
Section 40 Rule 132.
On proper motion, the court may also order the striking
out of answers which are incompetent, irrelevant, or Another possible bar question, distinguish English
otherwise improper. (n) Exchequer Rule and Harmless Error Rule (See People
v. Teehankee G.R. Nos. 111206-08 October 6, 1995)
Move to strike. That’s one my favourite motions.
ENGLISH EXCHEQUER HARMLESS ERROR
Section 40. Tender of excluded evidence. — If RULE RULE
documents or things offered in evidence are excluded by Provides a trial court's error In dealing with evidence
the court, the offeror may have the same attached to or as to the admission of improperly admitted in
made part of the record. If the evidence excluded is oral, evidence was presumed to trial, we examine its
the offeror may state for the record the name and other have caused prejudice and damaging quality and its
personal circumstances of the witness and the therefore, almost impact to the substantive
substance of the proposed testimony. (n) automatically required a rights of the litigant. If the
new trial. The Exchequer impact is slight and
So the evidence is already excluded meaning, dili siya rule has long been laid to insignificant, we disregard
consider by the court but you as proponent of this rest for even English the error as it will not
excluded evidence, you feel that assuming mapildi ko appellate courts now overcome the weight of
wala gidawat sa korte kining evidence nako, so the only disregard an error in the the properly admitted
hope that I have would be for appealing purposes. What admission of evidence evidence against the
am I going to do? If the court strikes or excludes a "unless in its opinion, some prejudiced party.
document or object or whatever exclusionary reason, I substantial wrong or
will have to make that document or record be part of my miscarriage (of justice) has
case. So that pagabot sa review, I can always cite that been occasioned."
and made part of the record so it’s elevated to the (People vs. Teehankee, Jr.
appellate court. G.R. Nos. 111206-08
October 6, 1995)
What about the court disallows the testimony? Disallows According to PEOPLE vs.
a judicial affidavit or excludes it entirely? Strike of GARCIA, what is followed
entirely? So unsa buhaton? Then you have to state for in the Philppines is the
the record the name and other personal circumstances HARMLESS ERROR

GUERRERO GUINOMLA VIRGILIO TAN 27

 EVIDENCE 2019
From the lectures of Atty. Jess Zachael Espejo
College of Law | III Manresa 2019 – 2020

RULE.

GUERRERO GUINOMLA VIRGILIO TAN 28