evidence 2011.doc

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VI. EVIDENCE

A. General Principles

1. Concept of Evidence

“SECTION 1. Evidence defined- Evidence is the eans sanctioned

!" these r#les$ of ascertainin% in a &#dicial proceedin% the tr#th respectin%

a atter of fact.' (Sec.1 of Rule 128 of the Rules of Court)

Dean Riano: Evidence is not an end itself but a means

(. Scope of the )#les

The rules of evidence in the Rules of Court are guided by the principle of

uniformity. As a general policy, the rules of evidence shall be the same in all

courts and in all trials and hearings. (Sec. 2, Rule 128, Rules of Court).

“Sec. (. Scope. * The r#les of evidence shall !e the sae in all co#rts and

in all trials and hearin%s$ e+cept as other,ise provided !" la, or these

r#les.'

-. Evidence in Civil Cases Vers#s Evidence in Criinal Cases

Evidence in Civil Cases Evidence in Criinal Cases

1. The party having the burden of proof

must prove his claim by a preponderance

of evidence (Sec 1., Rule 133)

1. The guilt of the accused has to be

proven beyond reasonable doubt. (Sec 2.,

Rule 133)

. an offer of compromise is not an

admission of any liability, and is not

admissible in evidence against the offeror

(Sec. 27., Rule 130)

. e!cept those involving "uasi# offenses

$criminal negligence% or those allo&ed by

la& to be compromised, an offer of

compromise by the accused may be

received in evidence as an admission of

guilt (Sec. 27., Rule 130)

'. the concept of presumption of innocence

does not apply and generally there is no

presumption for or against a party e!cept

in certain cases provided for by la&

'. the accused en(oys the constitutional

presumption of innocence. (Sec. 14, Art.

, Constitution of the !hilippines)

1



. Proof Vers#s Evidence

Proof Evidence

1. not the evidence itself. There is proof

only because of evidence. )t is erel" the

pro!ative effect of evidence and is the

conviction or pers#asion of the ind

res#ltin% fro a consideration of the

evidence. (2" Am #ur 2$, %&i$ence, 2)

. the effect of evidence because &ithout

evidence there is no proof ('lc*s +

-ictionry, th %$., 10"4/ #ones on

%&i$ence, 4). *are allegations

unsubstantiated by evidence, are not

e"uivalent to proof (-omino &. Roles,

43 SCRA 812)

(. the edi# or eans !" ,hich a fact

is proved or disproved

/. 0act# Pro!ans Vers#s 0act# Pro!and#

0act# Pro!ans 0act# Pro!and#

1. the facts or material evidencing the fact

or proposition to be established

(imore , !rinciples of #u$icil !roof, )

1. the fact or proposition to be established

. the probative or evidentiary fact tendingto prove the fact in issue ('lc*s +

-ictionry, th %$., 33)

The totality of the evidence to prove

the liability

. the fact to be proved+ the fact &hich is inissue and to &hich the evidence is directed

'. '. in a certain case, may be affected by the

(udicial admissions of a party

)f the fctum pron$um signifiesthe fact or proposition to be established,-

then matters of (udicial notice, conclusive

presumptions and (udicial admissions

cannot "ualify as parts of the fctum

pron$um of a particular case, because

such matters need not be established or



proven.

. . )n practical terms, it refers to the

elements of a cause of action from the

point of vie& of the plaintiff and the

elements of the defense from the

standpoint of the defendant.

/. /. )n a criminal case, it includes all matters

that the prosecution must prove beyond

reasonable doubt in order to (ustify

conviction. $elements%

. Adissi!ilit" of Evidence

a. )e2#isites for adissi!ilit" of evidence

Sec. -. Admissibility of evidence. * Evidence is adissi!le ,hen it is relevant to

the iss#e and is not e+cl#ded !" the la, of these r#les.'

Thus, for evidence to be admissible, t&o elements must concur, namely:

$a% the evidence is rele&nt, and 3a+io of relevance4$b% the evidence is not e5clu$e$ by the rules $competent%. 3a+io of copetence4

!. )elevanc" of evidence and collateral atters

“Sec. . Relevancy 5 collateral matters. * Evidence #st have s#ch a

relation to the fact in iss#e as to ind#ce !elief in its e+istence or non6e+istence.

Evidence on collateral atters shall not !e allo,ed$ e+cept ,hen it tends in an"

reasona!le de%ree to esta!lish the pro!a!ilit" or ipro!a!ilit" of the fact in

iss#e.'

0nder ec. of Rule 12, evidence to be relevant must h&e such reltion to

the fct in issue s to in$uce elief in its e5istence or non6 e5istence.

-en Rino RE3E4A5CE 6 relation of e&i$ence to issue

Test for Deterinin% the )elevanc" of Evidence

*ecause of the definition of relevant evidence under ec of Rule 12, it is

obvious that relevance is a matter of relationship bet&een the evidence and a fact in

'



issue. The determination of relevance is thus, a matter of inference and not of la&. The

test &ould therefore, be one of logic, common sense, and e!perience.

Collateral 7atters

A matter is collateral &hen it is on a parallel or diverging line,- merelyadditional- or au!iliary- ('lc*s + -ictionry. th %$., 237). This term connotes an

absence of a direct connection bet&een the evidence and the matter in dispute.

c. 7#ltiple adissi!ilit"

1. There are times &hen a proffered evidence is admissible for t&o or more

purposes.

. ometimes it is inadmissible for one purpose but admissible for another or vice

versa.

'. Evidence may also be admissible against one party but not against another.

d. Conditional Adissi!ilit"

)t happens fre"uently enough that the relevance of a piece of evidence is not

apparent at the time is offered, but the relevance of &hich &ill readily be seen &hen

connected to other pieces of evidence not yet offered. The proponent of the evidence

may as7 that the evidence be conditionally admitted in the meantime sub(ect to the

condition that he is going to establish its relevancy and competency at a later time. )f the

connection is not sho&n as promised, the court may, upon motion of the adverse party,

stri7e out from the record the evidence that &as previously conditionally admitted.

e. C#rative adissi!ilit"

The doctrine of curative admissibility allo&s a party to introduce other&ise

inadmissible evidence to ans&er the opposing party8s previous introduction of

inadmissible evidence if it &ould remove any unfair pre(udice caused by the admission of

the earlier inadmissible evidence (A$ms&. 'urlinton . R.R. Co., 89 S.. 2$ 748,

71 :;o. App.1""3<). Thus, a party &ho first introduces either irrelevant or incompetent

evidence into the trial cannot complain of the subse"uent admission of similar evidence

from the adverse party relating to the same sub(ect matter (Commonelth &. Ale5n$er, =y., S..r$104, 10 :1"""< >uotin -uny &. Commonelth, 23" =y.

199, 3" S..2$ 242, 243 :1"31</ Smith &. Commonelth, =y., "04 S..2$ 220, 222

:1""<). Conversely, the doctrine should not be invo7ed &here evidence &as properly

admitted.

)t is submitted that in our (urisdiction, the principle of curative admissibility should

not be made to apply &here the evidence &as admitted &ithout ob(ection because the



failure to ob(ect constitutes a &aiver of the inadmissibility of the evidence. )n our

(urisdiction, inadmissible evidence not ob(ected to become admissible.

f. Direct and Circ#stantial Evidence

Direct Evidence Circ#stantial Evidence# evidence &hich if !elieved$ proves the

e+istence of a fact in iss#e ,itho#t

interference or pres#ption

9proves a fact &ithout the need to

ma7e an inference from another fact

# that evidence that indirectl" proves a

fact in iss#e thro#%h an inference &hich

the fact finder dra&s from the evidence

established (!eople &s tito, 423 SCRA

917)

# &hen the court does not have to ma7e an

inference from one fact to arrive at

conclusion

# the court uses a fact from &hich an

assumption is dra&n

%. Positive and Ne%ative Evidence

Positive Evidence Ne%ative Evidence

1. &hen a &itness affirs in the stand

that a certain state of facts does e+ist or

that a certain event happened

#may li7e&ise refer to presence of

something

1. &hen the &itness states that an event

did not occ#r or that the state of facts

alle%ed to e+ist does not act#all" e+ist

#may li7e&ise refer to absence of

something

. %reater pro!ative val#e is given . considered by the Court to be a ver"

,ea8 form of defense and can never

overcoe an affirative or positivetestion" particularly &hen the latter

comes from the mouth of a credible

&itness

h. Copetent and Credi!le Evidence

Copetent Evidence

1. one that is not e!cluded by la& in a particular case. )f the test of relevance is logic and common sense, the test of competence is the l

or the rules.

'. Competence, in relation to evidence in general, refers to eliiility of n e&i$ence toe recei&e$ s such.

Adissi!le Evidence Credi!le Evidence

1. not necessarily credible evidence

#means that the evidence is of such a

/



character that the court, pursuant to the

rules of evidence, is bound to receive it

or allo&ed it to be introduced at the trial

. ?cre$iility@ refers to &orthiness of

belief, that "uality &hich renders a

&itness &orthy of belief

#believability-

'. Also, the competency of a &itness differs from his credibility. A &itness may be

competent, and yet give incredible testimony+ he may be incompetent, and yet his

evidence, if received, is perfectly credible.

9. :#rden of Proof and :#rden of Evidence

“SECTION 1. Burden of proof. * :#rden of proof is the d#t" of a part" to present

evidence on the facts in iss#e necessar" to esta!lish his clai or defense !" the ao#nt

of evidence re2#ired !" la,.' $Rule 1'1, Rules of Court%

:#rden of Proof :#rden of Evidence

1. or ?onus pron$i@, traditionally refers to

the obligation of a party to the litigation to

persuade the court that he is entitled to relief

. duty of a party to present evidence to

establish his claim or evidence by the

amount of evidence re"uired by la&, &hich is

preponderance of evidence in civil cases

. duty of a party to go for&ard &ith the

evidence to overthro& the prim fcie

evidence against him

1. Does not shift and remains throughout theentire case e!actly &here the pleadings

originally placed it

1. hifts from party to party depending uponthe e!igencies of the case in the course of

the trial

. enerally determined by the pleadings

filed by the party

. enerally determined by the

developments of the trial, or by the

provisions of substantive la& or procedural

rules &hich may relieve the party from

presenting evidence on the facts alleged

;. Pres#ptions

a. Concl#sive Pres#ptions

# based on the doctrine of estoppel

“Sec. (. Conclusive presumptions. * The follo,in% are instances of

concl#sive pres#ptions<

;



3a4=henever a part" has$ !" his o,n declaration$ act$ or oission$intentionall" and deli!eratel" led to another to !elieve a partic#lar thin%tr#e$ and to act #pon s#ch !elief$ he cannot$ in an" liti%ation arisin% o#t ofs#ch declaration$ act or oission$ !e peritted to falsif" it<

3!4The tenant is not peritted to den" the title of his landlord at the

tie of coenceent of the relation of landlord and tenant !et,eenthe.' $ec. , Rule 1'1 of the Rules of Court%

!. Disp#ta!le Pres#ptions

“Sec. -. 3)#le 1-14 Disputable presumptions. * The follo,in%

pres#ptions are satisfactor" if #ncontradicted$ !#t a" !e contradicted and

overcoe !" other evidence<

3a4 That a person is innocent of crie or ,ron%5

3!4 That an #nla,f#l act ,as done ,ith an #nla,f#l intent5

3c4 That a person intends the ordinar" conse2#ences of his vol#ntar" act5

3d4 That a person ta8es ordinar" care of his concerns5

3e4 That evidence ,illf#ll" s#ppressed ,o#ld !e adverse if prod#ced5

3f4 That one" paid !" one to another ,as d#e to the latter5

3%4 That a thin% delivered !" one to another !elon%ed to the latter5

3h4 That an o!li%ation delivered #p to the de!tor has !een paid5

3i4 That prior rents or installents had !een paid ,hen a receipt for the later one is prod#ced5

3&4 That a person fo#nd in possession of a thin% ta8en in the doin% of a recent ,ron%f#l act is theta8er and the doer of the ,hole act5 other,ise$ that thin%s ,hich a person possess$ or e+ercisesacts of o,nership over$ are o,ned !" hi5

384 That a person in possession of an order on hiself for the pa"ent of the one"$ or thedeliver" of an"thin%$ has paid the one" or delivered the thin% accordin%l"5

3l4 That a person actin% in a p#!lic office ,as re%#larl" appointed or elected to it5

34 That official d#t" has !een re%#larl" perfored5

3n4 That a co#rt$ or &#d%e actin% as s#ch$ ,hether in the Philippines or else,here$ ,as actin% inthe la,f#l e+ercise of &#risdiction5

3o4 That all the atters ,ithin an iss#e raised in a case ,ere laid !efore the co#rt and passed#pon !" it5 and in li8e anner that all atters ,ithin an iss#e raised in a disp#te s#!itted forar!itration ,ere laid !efore the ar!itrators and passed #pon !" the5

<



3p4 That private transactions have !een fair and re%#lar5

324 That the ordinar" co#rse of !#siness has !een follo,ed5

3r4 That there ,as a s#fficient consideration for a contract5

3s4 That a ne%otia!le instr#ent ,as %iven or indorsed for a s#fficient consideration5

3t4 That an endorseent of ne%otia!le instr#ent ,as ade !efore the instr#ent ,as overd#eand at the place ,here the instr#ent is dated5

3#4That a ,ritin% is tr#l" dated5

3v4That a letter d#l" directed and ailed ,as received in the re%#lar co#rse of the ail5

3,4 That after an a!sence of seven "ears$ it !ein% #n8no,n ,hether or not the a!sentee still lives$he is considered dead for all p#rposes$ e+cept for those of s#ccession.

The a!sentee shall not !e considered dead for the p#rpose of openin% his s#ccession tillafter an a!sence of ten "ears. If he disappeared after the a%e of sevent"6five "ears$ an a!sence of

five "ears shall !e s#fficient in order that his s#ccession a" !e opened.

The follo,in% shall !e considered dead for all p#rposes incl#din% the division of the estate

aon% the heirs<

314 A person on !oard a vessel lost d#rin% a sea vo"a%e$ or an aircraft ,ith isissin%$ ,ho has not !een heard of for fo#r "ears since the loss of the vessel oraircraft5

3(4 A e!er of the ared forces ,ho has ta8en part in ared hostilities$ and has

!een issin% for fo#r "ears5

3-4 A person ,ho has !een in dan%er of death #nder other circ#stances and ,hose e+istence has not !een 8no,n for fo#r "ears5

34 If a arried person has !een a!sent for fo#r consec#tive "ears$ the spo#sepresent a" contract a s#!se2#ent arria%e if he or she has ,ell6fo#nded !eliefthat the a!sent spo#se is alread" death. In case of disappearance$ ,here there is adan%er of death the circ#stances hereina!ove provided$ an a!sence of onl" t,o"ears shall !e s#fficient for the p#rpose of contractin% a s#!se2#ent arria%e.>o,ever$ in an" case$ !efore arr"in% a%ain$ the spo#se present #st instit#te as#ar" proceedin%s as provided in the 0ail" Code and in the r#les fordeclaration of pres#ptive death of the a!sentee$ ,itho#t pre&#dice to the effect of

reappearance of the a!sent spo#se.chanro!les virt#a la, li!rar"

3+4 That ac2#iescence res#lted fro a !elief that the thin% ac2#iesced in ,as confora!le to thela, or fact5

3"4 That thin%s have happened accordin% to the ordinar" co#rse of nat#re and ordinar" nat#reha!its of life5

3?4 That persons actin% as copartners have entered into a contract of copartneship5

2

http://www.chanrobles.com/executiveorderno209.htm

http://www.chanrobles.com/executiveorderno209.htm



3aa4 That a an and ,oan deportin% theselves as h#s!and and ,ife haveentered into a la,f#l contract of arria%e5

3!!4 That propert" ac2#ired !" a an and a ,oan ,ho are capacitated to arr"each other and ,ho live e+cl#sivel" ,ith each other as h#s!and and ,ife ,itho#tthe !enefit of arria%e or #nder void arria%e$ has !een o!tained !" their &oint

efforts$ ,or8 or ind#str".

3cc4 That in cases of coha!itation !" a an and a ,oan ,ho are not capacitatedto arr" each other and ,ho have ac2#ire properl" thro#%h their act#al &ointcontri!#tion of one"$ propert" or ind#str"$ s#ch contri!#tions and theircorrespondin% shares incl#din% &oint deposits of one" and evidences of creditare e2#al.chanro!les virt#a la, li!rar"

3dd4 That if the arria%e is terinated and the other contracted another arria%e ,ithin three h#ndred da"s after s#ch terination of the forer arria%e$ theser#les shall %overn in the a!sence of proof to the contrar"<

314 A child !orn !efore one h#ndred ei%ht" da"s after the

soleni?ation of the s#!se2#ent arria%e is considered to have !eenconceived d#rin% s#ch arria%e$ even tho#%h it !e !orn ,ithin the threeh#ndred da"s after the terination of the forer arria%e.

3(4 A child !orn after one h#ndred ei%ht" da"s follo,in% thecele!ration of the s#!se2#ent arria%e is considered to have !eenconceived d#rin% s#ch arria%e$ even tho#%h it !e !orn ,ithin the threeh#ndred da"s after the terination of the forer arria%e.

3ee4 That a thin% once proved to e+ist contin#es as lon% as is #s#al ,ith thin%s ofthe nat#re5

3ff4 That the la, has !een o!e"ed5

3%%4 That a printed or p#!lished !oo8$ p#rportin% to !e printed or p#!lished !"p#!lic a#thorit"$ ,as so printed or p#!lished5

3hh4 That a printed or p#!lished !oo8$ p#rportin% contain reports of casesad&#d%ed in tri!#nals of the co#ntr" ,here the !oo8 is p#!lished$ contains correctreports of s#ch cases5

3ii4 That a tr#stee or other person ,hose d#t" it ,as to conve" real propert" to apartic#lar person has act#all" conve"ed it to hi ,hen s#ch pres#ption isnecessar" to perfect the title of s#ch person or his s#ccessor in interest5

3&&4 That e+cept for p#rposes of s#ccession$ ,hen t,o persons perish in the saecalait"$ s#ch as ,rec8$ !attle$ or confla%ration$ and it is not sho,n ,ho died first$and there are no partic#lar circ#stances fro ,hich it can !e inferred$ thes#rvivorship is deterined fro the pro!a!ilities res#ltin% fro the stren%th andthe a%e of the se+es$ accordin% to the follo,in% r#les<

1. If !oth ,ere #nder the a%e of fifteen "ears$ the older is deeed to haves#rvived5

=



(. If !oth ,ere a!ove the a%e si+t"$ the "o#n%er is deeed to haves#rvived5

-. If one is #nder fifteen and the other a!ove si+t"$ the forer is deeed tohave s#rvived5

. If !oth !e over fifteen and #nder si+t"$ and the se+ !e different$ the aleis deeed to have s#rvived$ if the se+ !e the sae$ the older5

/. If one !e #nder fifteen or over si+t"$ and the other !et,een those a%es$the latter is deeed to have s#rvived.

3884 That if there is a do#!t$ as !et,een t,o or ore persons ,ho are called tos#cceed each other$ as to ,hich of the died first$ ,hoever alle%es the death ofone prior to the other$ shall prove the sae5 in the a!sence of proof$ the" shall !econsidered to have died at the sae ti

@. i!eral Constr#ction of the )#les of Evidence

1. 3i7e all other provisions under the Rules of Court, the rules of evidence must be

liberally constued (Sec.9, Rule 1, Rules of Court). Rules of >rocedure are mere tools intended

to facilitate rather than to frustrate the attainment of (ustice. A strict and rigid application must

al&ays be esche&ed if it &ould subvert their primary ob(ective of enhancing substantial (ustice.

>rocedural rules must be liberally interpreted and applied so as not to frustrate

substantial (ustice. (uimo&. CA, 44 SCRA 17). ?o&ever, to (ustify rela!ation of the rules, a

satisfactory e!planation and a subse"uent fulfilment of the re"uirements have al&ays been

re"uired ('rcens &. Boms, 44 SCRA "3).

. The Rules on Electronic Evidence shall li7e&ise be construed liberally (Sec. 2, Rule 2,Rules on %lectronic %&i$ence).

1B. #ant# of Evidence 3=ei%ht and S#fficienc" of Evidence4

a. Proof !e"ond reasona!le do#!t

“Sec. (. (Rule 133 !roof beyond reasonable doubt . " In a criinal case$

the acc#sed is entitled to an ac2#ittal$ #nless his %#ilt is sho,n !e"ond

reasona!le do#!t. Proof !e"ond reasona!le do#!t does not ean s#ch a de%ree

of proof$ e+cl#din% possi!ilit" of error$ prod#ces a!sol#te certaint". 7oral

certaint" onl" is re2#ired$ or that de%ree of proof ,hich prod#ces conviction in an#npre&#diced ind.'

!. Preponderance of evidence

“Sec. 1. (Rule 133 !reponderance of evidence# $o% determined . " In civil

cases$ the part" havin% !#rden of proof #st esta!lish his case !" a

preponderance of evidence. In deterinin% ,here the preponderance or s#perior

1@



,ei%ht of evidence on the iss#es involved lies$ the co#rt a" consider all the facts

and circ#stances of the case$ the ,itnesses anner of testif"in%$ their

intelli%ence$ their eans and opport#nit" of 8no,in% the facts to ,hich there are

testif"in%$ the nat#re of the facts to ,hich the" testif"$ the pro!a!ilit" or

ipro!a!ilit" of their testion"$ their interest or ,ant of interest$ and also their

personal credi!ilit" so far as the sae a" le%itiatel" appear #pon the trial. Theco#rt a" also consider the n#!er of ,itnesses$ tho#%h the preponderance is

not necessaril" ,ith the %reater n#!er.'

“preponderance of evidence'

6 the term is a "uantum of evidence applicable to civil cases+ means the

greater or superior &eight of evidence-+ the evidence that is more convincing

and more credible than the one offered by the adverse party

6 means that the evidence adduced by oneside is, as a &hole, superior to

or has greater &eight than that of the other (t Drill &. -;C6 Ern

!roperty -e&eloper, nc., 44 SCRA 93/ '! &. Reye, D.R. o.17177,

Ferury 11, 2008)

6 means evidence &hich is more convincing to the court as &orthy of

belief than that &hich is offered in opposition thereto (Repulic &. 'utist, D.R.

o. 19"801, Septemer 11, 2007).

In deterinin% ,hether or not there is preponderance of evidence$

the co#rt a" consider the follo,in%<

$a% all the facts and circumstances of the case,

$b%the &itnesses manner of testifying, their intelligence, their means and

opportunity of 7no&ing the facts to &hich they are testifying, the nature of the

facts to &hich they testify, the probability or improbability of their testimony,

$c% their interest or &ant of interest, and also their personal credibility so

far as the same may legitimately appear upon the trial

$d% the number of &itnesses, though the preponderance is not necessarily

&ith the greater number (Sec.1, Rule 133)

c. S#!stantial evidence

6 This degree of evidence applies to administrative cases, i.e., those filed

before administrative and "uasi# (udicial bodies and &hich re"uires that in order

to establish a fact, the evidence should constitute the amount of relevant

evidence &hich a reasonable mind might accept as ade"uate to support a

conclusion.

11



“Sec. /. 3)#le 1--4 Substantial evidence. " In cases filed !efore

adinistrative or 2#asi6&#dicial !odies$ a fact a" !e deeed esta!lished if

it is s#pported !" s#!stantial evidence$ or that ao#nt of relevant evidence

,hich a reasona!le ind i%ht accept as ade2#ate to &#stif" a

concl#sion.'

d. Clear and convincin% evidence

1. Evidence is clear and convincing if it produces in the mind of the trier of

fact a firm belief or conviction as to allegations sought to be established+ )t is

intermediate, being more than preponderance, but not to the e!tent of such

certainty as is re"uired beyond reasonable doubt as in criminal cases. ('lc*s

+ -ictionry, th %$., 227)

. The Court in Do&*t of onon Specil A$ministrti&e Reion &.

Glli, #r. (D. R. o. 1397, April 1",2007), e!plained this "uantum of evidence,

thus:

!!! )n his separate opinion in !urnn, then Associate Bustice,

no& Chief Bustice Reynato . >uno, proposed that a ne& standard &hich he

termed clear and convincing evidence- should be use in granting bail in

e!tradition cases. Accor$in to him, this stn$r$ shoul$ e loer thn proof

eyon$ resonle $out ut hiher thn prepon$ernce of e&i$ence. 5 !!-

:. #dicial Notice and #dicial Adissions

1. =hat Need Not :e Proved# Budicial notice is based on the ma!im &hat is 7no&n need not

be proved,- hence, &hen the rule is invo7ed, the court may

dispense &ith the presentation of evidence on (udicially cogniable

facts.

(. 7atters of #dicial Notice

a. 7andator"# no motion or hearing is necessary for the court to

ta7e (udicial notice of a fact because this is a matter

&hich ought to ta7e (udicial notice of

The follo&ing are matters sub(ect to mandatory (udicial

notice:

$i.% the e!istence and territorial e!tent of states,

$ii.% the political history, forms of government and

symbols of nationality,

1



$iii% the la& of nations,

$iv.% the admiralty and maritime courts of the &orld

and their seals,

$v.% the political constitution and history of the

>hilippines,

$vi.% the official acts of legislative, e!ecutive and

(udicial departments of the >hilippines,

$vii.% the la&s of nature,

$viii.% the measure of time, and

$i!.% the geographical divisions.

!. Discretionar"

“Sec. (. 3)#le 1(@4 &udicial notice# %$en discretionary .

* A co#rt a" ta8e &#dicial notice of atters ,hich are of

p#!lic 8no,led%e$ or are capa!le to #n2#estiona!le

deonstration$ or o#%ht to !e 8no,n to &#d%es !eca#se of

their &#dicial f#nctions.'

The principles of discretionary (udicial notice &ill apply

&here the follo&ing re"uisites are met:

$a% The matter must be one of common 7no&ledge

$b% The matter must be settled beyond reasonable doubt$if there is any uncertainty about the matter, thenevidence must be adduced%+ and

$c% The 7no&ledge must e!ist &ithin the (urisdiction of thecourt ('eret &. Stte HGl Crim< 824 !2$ 394/ 2" Am

#ur 2$, %&i$ence, 2 1""4/ Stte !rosecutors &.;uro, 293 SCRA 0)

The principal guide in determining &hat facts may be

assumed to be (udicially 7no&n is that of notoriety. ?ence, it can

be said that (udicial notice is limited to facts evidenced by public

records and facts of general notoriety. oreover, a (udiciallynoticed fact must be one not sub(ect to a reasonable dispute in

that it is either: $1% generally 7no&n &ithin the territorial (urisdiction

of the trial court+ or $% capable of accurate and ready

determination by resorting to sources &hose accuracy cannot

reasonably be "uestionable.

1'



Budicial notice under ec. of Rule 1= rests on the

&isdom and discretion of the court. The po&er to ta7e (udicial

notice must be e!ercised &ith caution and care must be ta7en that

the re"uisite notoriety e!ists. Any reasonable doubt on the matter

sought to be (udicially noticed must be resolved against the ta7ing

of (udicial notice. (Stte !rosecutors &. ;uro, 239 SCRA 0).

-. #dicial Adissions

a. Effect of &#dicial adissionspecifically, under Sec.$ )#le 1(@ of the Rules of

Court, the follo&ing are the effects of (udicial admissions:

$i% They do not re"uire proof+ and

$ii% They cannot be contradicted because they are

conclusive upon the party ma7ing it.

!. >o, &#dicial adissions a" !e contradictedThe above rule ho&ever, admits of t&o e!ceptions,

namely:

$1% upon sho&ing that the admission &as made

through plple miste, or

$% &hen it is sho&n that no such admission &as

made.

. #dicial Notice of 0orei%n a,s$ a, of Nations and 7#nicipal

Ordinance

a. #dicial Notice of 0orei%n a,s

i. )t is &ell#settled in our (urisdiction that our

courts cannot ta7e (udicial notice of foreign la&s.

!!!

)n general, and in the absence of

statutory re"uirement to the contrary, the courts of

the forum &ill not ta7e (udicial notice of the la&

prevailing in another country (2" Am #ur %&i$ence,

119). oreign la&s must be alleged and proved. )n

the absence of proof, the foreign la& &ill be

presumed to be the same as the la&s of (urisdiction

hearing the case under the doctrine of processul

presumption (orthest Grient Airlines &s CA, 241

SCRA 1"2).

1



!!!

ii. Fhere the foreign la& is &ithin the

actual 7no&ledge of the court such as &hen the la&

is generally 7no&n, had been ruled upon in

previous cases before it and none of the parties

claim other&ise, the court may ta7e (udicial notice

of the foreign la& (!C' &. %scolin, 9 SCRA 299).

iii. Fhen the foreign la& is part of a

published treatise, periodical or pamphlet and the

&riter is recognied in his profession or calling as

e!pert in the sub(ect, the court, it is submitted, may

ta7e (udicial notice of the treatise containing the

foreign la& (Sec. 49, Rule 130).

!. #dicial Notice of the a, of Nations

Fhen the foreign la& refers to the la& of

nations, said la& is sub(ect to a mandatory (udicial

notice under Sec$ 1 of )#le 1(@. 0nder the

>hilippine Constitution, the >hilippines adopts the

generally accepted principles of international la& as

part of the land (Sec.2, Art , Constitution of the

!hilippines). *eing parts of the la& of the land, they

are therefore, technically in the nature of local la&s

and hence, are sub(ect to a mandatory (udicial

notice under Sec.1 of )#le 1(@.

c. #dicial Notice of 7#nicipal Ordinances

1. unicipal trial courts must ta7e (udicial

notice of municipal ordinances in force in the

municipality in &hich they sit. (E.S. &. 'lnco, 37

!hil 129).

. A C) $no& RTC%, should also ta7e

(udicial notice of municipal ordinances in force in

the municipalities &ithin their (urisdiction but only &hen so re"uired by la&.

'. The CA may ta7e (udicial notice of

municipal ordinances because nothing in the Rules

prohibits it from ta7ing cogniance of an ordinance

&hich is capable of un"uestionable demonstration

1/



(Dlleo &.!eople, 8 SCRA 813).

C. O:ECT 3)EA4 EVIDENCE

1. Nat#re of O!&ect EvidenceGb(ects as evidence are those addressed to the senses of the court.

Fhen an ob(ect is relevant to the fact in issue, it may be e!hibited to,e!amined or vie&ed by the court.- $ec 1 of Rule 1'@%

a. Gb(ect as real evidence is e!actly &hat its name suggests. )t is thereal thing itself. $i.e. 7nife used to slash a victim8s throat, (e&elrystolen, car used in robbery etc%

b. )t appears directly to the senses of the court.c. Dean Riano8s lecture:

i. evidence is used depending on its offer. Fhether it is ob(ector documentary depends on the reason and purpose &hy it isoffered.-

ii. *est evidence rule, parole evidence and hearsay rule do 5GTapply in ob(ect evidence.

d. Gb(ect evidence is not visual alone. )t covers the entire range ofhuman senses: hearing, taste, smell, and touch.

e. Fhere the physical evidence runs counter the testimonial evidence,the physical evidence should prevail $*>) vs Reyes .R. 1/<1<<,eb. 11, @@2%

(. )e2#isites for Adissi!ilit"The admissibility of the ob(ect li7e other evidence re"uires that the

ob(ect be both rele&nt n$ competent.a. the evidence must be relevant

b. the evidence must be authenticated- To authenticate the ob(ect, it must be sho&n that the

ob(ect is the very thing that is either the sub(ect matterof the la& suit or the very one involved to prove anissue in the case

c. the authentication must be made by a competent &itness- To authenticate the ob(ect, there must be someone $i.e.

the &itness% &ho should identify the ob(ect to be theactual thing involved.

- An ob(ect evidence, being inanimate, cannot spea7 foritself.

d. the ob(ect must be formally offered in evidence

5.*. the authentication of the ob(ect $b. and c.% is to comply &ith theelement of competence.

-. Cate%ories of O!&ect Evidencea. 0ni"ue Gb(ects 6 ob(ects that have readily identifiable mar7s

- Gb(ects &hich has uni"ue characteristics li7e the serialnumber of a caliber / pistol.

b. Gb(ects ade 0ni"ue 6 ob(ects that are made readily identifiable

1;



- )f the ob(ect has no uni"ue characteristics, li7e a typical7nife that has no serial numbers found in a commonplace, the &itness may identify the same in court as

&hen he made it uni"ue by placing mar7s on the item.c. 5on#uni"ue Gb(ects 6 ob(ects &ith no identifying mar7s and cannot be

mar7ed

-This third category refers to those &hich has no uni"uecharacteristic and those &hich cannot be mar7ed li7efor instance, a drop of blood, oil, drugs and the li7e.0nder this situation, the proponent of the evidencemust establish a chin of custo$y $this &ill bediscussed further later%

. Deonstrative Evidencea. Demonstrative Evidence is not a separately defined evidence under

the rules of court and appears to be incorporated under the generalterm oIectJ rel e&i$ence because it represents or demonstrates thereal thing.

b. )t is the substantial representative of the true ob(ect li7e for e!ample, amap, a photograph, model, diagram, etc.

c. The rule boils to one basic "uestion: Does the evidence sufficientlyand accurately represent the ob(ect it see7s to demonstrate orrepresentH- if it does, the evidence &ould be admissible.

A$missiility of !hotorphs0nder the electronic evidence rule, photographic evidence of events, actsor transactions shall be admissible in evidence provided:

i. )t shall be presented, displayed and sho&n to the court+ andii. )t shall be identified, e!plained or authenticated by either:

- The person &ho made the recording or

-ome other person competent to testify the accuracythereof

The admissibility of photographs is &ithin the discretion of the court, andits ruling in this respect shall not be interfered &ith EICE>T upon a clearsho&ing of an abuse in discretion.

A$missiility of ;otion !ictures n$ recor$insThe rule that apply to photographs generally apply to motion pictures andrecordings.0nder the Rules on Electronic Evidence, the authentication process neednot involve the person &ho actually made the recording. )t can be done bysomeone &ho can testify as to its accuracy. There is also a re"uirement

that the recording be sho&n, presented and displayed to court.

A$missiility of -irms, mo$els n$ mpsAside from the re"uirement of relevance, a diagram, model, or map mustbe identified by a &itness &ho is familiar &ith &hat the evidence depicts,and that the same is an accurate representation of the scene it portraysome courts may re"uire that the model, diagram or map be dra&n toscale. )f not dra&n to scale, the court must be so informed.

1<



A$missiility of K6ry pictures)t is admissible &hen sho&n to have been made under thecircumstances as to assure their accuracy and &here relevant to amaterial issue in the case. *ecause the science of ta7ing I#ray isno& &ell#founded and generally recognied, almost all courts no

longer re"uire testimony as to the reliability of an I#ray machine.

A$missiility of Scientific tests, $emonstrtion, n$ e5perimentsThis is sub(ect to (udicial discretion. )n#reenactment of materialevents, li7e&ise, has been held permissible to help illustrate thetestimony of the &itness.

/. Vie, on O!&ect Evidencea. There are times that a party cannot bring an ob(ect to the court for

vie&ing. )n such a situation, the court may ma7e an ocular inspection,inspect a crime scene or other&ise go out the courtroom.

b. oing out the courtroom to observe places and ob(ects is commonly

termed a 4)EF-c. The trial (udge has discretion to grant or refuse a re"uest for a vie&.d. An inspection outside the court should be made in the presence of the

parties or at least &ith previous notice to them.e. uch inspection or vie& is part of the trial since evidence is thereby

being received.

. Chain of C#stod" in relation to Section (1 of the CoprehensiveDan%ero#s Dr#%s Act of (BB(

a. >urpose of Chain of Custody: to guaranty the integrity of the physicalevidence and to prevent the introduction of evidence &hich is notauthentic.

b. )t is a chain because there are lin7s in the handling of the evidence.The lin7s are the people &ho actually handled or had custody of theob(ect. $Each lin7 must sho& ho& he received the ob(ect, ho& hehandled it and ho& it &as transferred to another%

c. )t is not necessary that every person &ho had contact &ith the ob(ectgive their testimony. As long as one of the chains- testifies and histestimony negates the possibility of tampering and that the integrity ofthe evidence is preserved.

d. ection 1 $b% of the Dangerous Drugs *oard Regulation 5o. 1, eriesof @@1= &hich implements R.A. 5o. =1;/ defines Jchain of custodyJas follo&s:JChain of CustodyJ means the duly recorded authoried movements

and custody of seied drugs or controlled chemicals or plants sourceof dangerous drugs or laboratory e"uipment at each stage, from thetime of seiureKconfiscation to receipt in the forensic laboratory tosafe7eeping to presentation in court and destruction. uch record ofmovements and custody of the seied item shall include the identityand signature of the person &ho held temporary custody of the seieditem, the dates and times &hen such transfers of custody &eremade in the course of safe7eeping and use in court as evidence, andthe final disposition.-

12

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http://www.lawphil.net/judjuris/juri2009/sep2009/gr_179213_2009.html#fnt19



e. The procedure to be follo&ed in the handling and custody of seieddangerous drugs:

i. The apprehending team having initial custody and control ofthe drugs shall, immediately after seiure and confiscation,physically inventory and photograph the same in the presenceof the accused or the personKs from &hom such items &ere

confiscated andKor seied or hisKher representative or counsel,a representative from media and the DGB, and any electedpublic official &ho shall be re"uired to sign the copies of theinventory and be given a copy thereof.

ii. The failure of the prosecution to sho& that the police officersconducted the re"uired physical inventory and photographspursuant to such guidelines does not automatically render theob(ects inadmissible. The implementing rules provides for aproviso: provided further, that non#compliance &ith thesere"uirements under (ustifiable grounds, as long as the integrityand the evidentiary value of the seied items are properlypreserved by the apprehending officerK team, shall not render

void and invalid such seiures of and custody over said items-

9. )#le on DNA Evidence 3A.7. No. B6116/6SC4a. 7eanin% of DNA

i. Deo!yribonucleic acid $D5A%, a nucleic acid that containsthe genetic instructions used in the development andfunctioning of all 7no&n living organisms.

ii. D5A is the chain of molecules found in every nucleated cell ofthe body $ec. 'LbM, Rules of D5A Evidence%

iii. A person8s D5A does not change throughout the person8slifetime+ the person8s D5A is the same as the D5A found in hissaliva, s&eat, s7in, bone, ear&a!, s7in tissue, etc and 5G t&o

individuals have the same D5A, &ith the notable e!ception ofidentical t&ins.

!. Applica!le for DNA testin% order

i. o my n or$er for -A testin e otine$LA person &ho has legal interest in the litigation may file an

application before the appropriate court, at any time.The order of D5A testing shall not ho&ever, be issued as a

of course and from the mere fact that the person re"uesting forthe testing has a legal interest in the litigation. or the order to beissued, there must be a further sho&ing that:

$a% A biological sample e!ists that is relevant to thecase+$b% The biological sample:

$i% &as not previously sub(ected to the type of D5Atesting no& re"uested+ or$ii% &as previously sub(ected to D5A testing, but theresults may re"uire confirmation for good reasons+

$c% The D5A testing uses a scientifically valid techni"ue+

1=

http://en.wikipedia.org/wiki/Nucleic_acid



http://en.wikipedia.org/wiki/Genetics

http://en.wikipedia.org/wiki/Organism



http://en.wikipedia.org/wiki/Genetics




$d% The D5A testing has the scientific potential to producene& information that is relevant to the proper resolution ofthe case+ and$e% The e!istence of other factors, if any, &hich the courtmay consider as potentially affecting the accuracy orintegrity of the D5A testing. $ec , RDE%

)f the court finds that the re"uirements above have beencomplied &ith, the court shall 6

$a% Grder, &here appropriate, that biological samples beta7en from any person or crime scene evidence+$b% )mpose reasonable conditions on D5A testingdesigned to protect the integrity of the biological sample,the testing process and the reliability of the test results,including the condition that the D5A test results shall besimultaneously disclosed to parties involved in the case+and$c% )f the biological sample ta7en is of such an amount that

prevents the conduct of confirmatory testing by the other orthe adverse party and &here additional biological samplesof the same 7ind can no longer be obtained, issue an orderre"uiring all parties to the case or proceedings to &itnessthe D5A testing to be conducted.

n.b. the court may motu proprio order a D5A testing.

ii. s court or$er rntin the -A testin ppelleLAn order granting the D5A testing shall be immediately

e!ecutory and shall not be appealable.

iii. ht then is the reme$y inst court if it is not ppelleLA petition for certiorari. ?o&ever, a petition for certiorari

initiated therefrom shall not, in any &ay, stay theimplementation thereof, unless a higher court issues anin(unctive order.

i&. s there n utomtic $mission of the -A e&i$ence otine$in the testinL

The grant of a D5A testing application shall not beconstrued as an automatic admission into evidence of anycomponent of the D5A evidence that may be obtained as aresult thereof. $ec /, RDE%

&. s court or$er lys re>uire$ efore un$ertin -AtestinL

5o. ec of RDE allo&s a testing &ithout a prior courtorder if done before a suit or proceeding is commenced atthe behest of any party including la& enforcementagencies. Thus, a court order shall only be re"uired only ifthere8s a pending litigation *0T not before the litigation.

@



n.b. a litigation need not e!ist prior to a D5A testing.

c. Post6conviction DNA testin%5 reed"i. The D5A test availed of by a person already convicted under a

final and e!ecutory (udgment is termed post#conviction- D5Atesting.

ii. ec ; of RDE allo&s a post conviction D5A testing. )t may beavailable to $a% prosecution, or $b% to the person convicted by afinal and e!ecutory (udgment provided that the ff. re"uirementsare met:

a. A biological sample e!ists+b. uch sample is relevant to the case+ andc. The testing &ould probably result in the reversal

of the (udgement of convictioniii. ht is the reme$y &ille to the con&ict if the result of the

!ost6con&iction -A testin re f&orle to himL- ?e may file a petition for a rit of es Corpus in the

court of origin.

-The court shall conduct a hearing and in case the courtfinds that the petition is meritorious, it shall reverse ormodify the (udgment of conviction and order therelease of the convict, unless his detention is (ustifiedfor a la&ful cause

n.b. although the la& spea7s that it be filed in the court oforigin, the rule allo&s to be filed either in CA or C.n.b. the petition for &rit of hes corpus may also be filedby the prosecution

d. Assessent of the pro!ative val#e of DNA evidence andadissi!ilit"

i. >eople vs. 4alle(o $'2 CRA 1=L@@M% adopted thefollo&ing guidelines to be used in assessing the probativevalue of D5A evidence:

- ?o& the samples are collected+- ?o& they &ere handled+

- The possibility of contamination of the samples+- The procedure follo&ed in analying the samples+

- Fhether the proper standards and procedures &erefollo&ed in conducting the tests+ and

- The "ualification of the analyst &ho conducted the testii. ec < of the RDE provides that the determination of the

probative value of the D5A evidence rests upon the sound

(udicial assessment ta7ing into consideration the follo&ingmatters:

a. The chain of custody, including ho& thebiological samples &ere collected, ho& they

&ere handled and the possibility ofcontamination of the samples+

b. The D5A testing methodology, including theprocedure follo&ed in analying the samples,the advantages and disadvantages of the

1



procedure, and compliance &ith thescientifically valid standards in conducting thetests+

c. The forensic D5A laboratory, including theaccreditation and the "ualification of the analyst

&ho conducted the test+ if the laboratory is not

accredited, the court shall consider the relevante!perience of the laboratory in the forensiccase&or7 and its credibility shall be properlyestablished+ and

d. The reliability of the testing result.

e. )#les on eval#ation of relia!ilit" of the DNA testin% 7ethodolo%"

i. n ht sitution $oes the Rule on -A %&i$ence pplyLThe Rule on D5A Evidence is the primary rule to be

applied &henever D5A evidence is offered, used or proposed tobe offered or used as evidence in:

1. Criminal actions. Civil actions'. pecial proceedings

Fhen a matter is not specifically governed by the Rules onD5A Evidence, the Rules of Court and other pertinentprovisions of la& on evidence shall apply.

ii. ht is the sinificnce of -AThe significance lies in the uni"ueness of the totality of the

D5A of a person. )t is a scientific fact that the totality of an

individual8s D5A is uni"ue for the individual, e!cept identical t&ins.$ec'LbM, RDE%

. A#thentication and Proof of Doc#ents

A. Concept and 7eanin%A#thentication means the process of proving the due e!ecution and

genuineness of a document.

An evidence &hen presented in court is not presumed authentic. The generalrule therefore is to prove its authenticity unless it is self#authenticating.

:. P#!lic and Private Doc#ents

1. >ublic documents are:

a. The &ritten official acts, or records of the official acts of the sovereignauthority, official bodies and tribunals, and public officers, &hether of the >hilippines, orof a foreign country+



b. Documents ac7no&ledge before a notary public e!cept last &ills andtestaments+ and

c. >ublic records, 7ept in the >hilippines, of private documents re"uired by la& tobe entered therein.

Church registries by virtue of eneral Grder 5o. ;2 are considered private &ritings.

. )mportance of 7no&ing &hether document is public or private document:a. The re"uirement to prove the authenticity of a private document is not needed fora public documentb. Documents ac7no&ledged before a notary public is considered a public documenten(oys the presumption of regularity.

C. =hen a private ,ritin% re2#ires a#thentication5 proof of a private ,ritin%1. The due e!ecution and authenticity of a private document must be proved either by:

a. Anyone &ho sa& the document e!ecuted or &rittenb. Evidence of the genuineness of the signature or hand&riting of the ma7er

D. =hen evidence of a#thenticit" of a private ,ritin% is not re2#ired 3ancientdoc#ent41. Fhen a document is considered ancient, evidence of its authenticity need not be

given.

A private document is considered ancient &hen it is more than thirty $'@% years old, isproduced from a custody in &hich it &ould naturally be found genuine, and isunblemished by any alterations or circumstances of suspicion.

E. >o, to prove %en#ineness of a hand,ritin%The hand&riting may be proven by a &itness &ho believes it to be the hand&riting of

a person because:1. ?e has seen the person &rite. ?e has seen &riting purporting to be his upon &hich the &itness has acted or

been charged, and has thus ac"uired 7no&ledge of the hand&riting of suchperson

'. *y a comparison made by the &itness or court, &ith &ritings admitted ortreated as genuine by the party against &hom the document is offered, orproved to be genuine to the satisfaction of the (udge.

0. Evidence of Official records of official acts<a. Record of the official acts of official bodies, tribunals, or of public officers

e!ist.

ay be evidenced by:i. Gfficial publicationii. Copy of the document attested by the officer having legal custody of

the record or by the attestation of his deputy+ if the record is not 7eptin the >hilippines

G. Attestation of a cop"1. )f the record is not 7ept in the >hilippines, the attestation must be accompanied

by a certificate that such officer has the custody+ if the office in &hich the record

'



is 7ept is in a foreign country, the certificate maybe made by a secretary of theembassy or legation, consul#general, vice#consul, or consular agent or by anyofficer in the foreign service of the >hilippines stationed in the foreign country in

&hich the record is 7ept, and authenticated by the seal of the office.. The attestation must state in substance, that the copy is a correct copy of the

original, or a specific part thereof, as the case may be. The attestation must be

under the official seal of the attesting officer, if there be any, or if he be the cler7of court having a seal, under the seal of such court.

>. P#!lic )ecord of a Private Doc#entA public record of a private document may be proved by:1. *y the original record. *y a copy thereof, attested by the legal custodian of the record, &ith an

appropriate certificate that such officer has the custody

I. Proof of ac8 of )ecord>roof of lac7 of record of a document consists of &ritten statement signed by anofficer having custody of an official record or by his deputy. The &ritten statement

must contain the follo&ing:1. There has been a diligent search of the record. That despite the diligent search, no record of entry of a specified tenor is found to

e!ist in the records of his office.The &ritten statement must be accompanied by a certificate that such officer hasthe custody of official records.

. >o, a #dicial )ecord is Ipeached1. *y evidence of &ant of (urisdiction in the court or (udicial officer. Collusion bet&een the parties'. raud in the party offering the record, in respect to the proceedings

F. Proof of Notarial Doc#entsDocuments ac7no&ledged before a notary public is considered a public documenten(oys the presumption of regularity. Thus, due e!ecution and authenticity need notbe proved.

The person &ho notaried the document must really be a notary public, and that hehas notaried it in accordance &ith the 5otarial 3a&.

. >o, to e+plain alterations in a doc#entThe party producing a document as genuine &hich has been altered and appears tohave been altered after its e!ecution has the duty to account for any alteration foundin a document purported to be genuine. ?e may sho& any of the follo&ing:

1. That the alteration &as made by another, &ithout his concurrence. That it &as made &ith the consent of the parties affected by it'. That it &as other&ise properly or innocent made, or that the alteration did not

change the meaning or language of the instrument.

)f he fails to do that, the document shall not be admissible in evidence.

7. Doc#entar" an%#a%e in an Official an%#a%e



Documents &ritten in an unofficial language shall not be admitted as evidence,unless accompanied &ith a translation into English or ilipino. To avoid interruptionof proceedings, parties or their attorneys are directed to have such translationprepared before trial.

E. TESTI7ONIA EVIDENCE

1. #alification of =itnesses

“Sec. (B. 'itnesses5 t$eir ualifications. * E+cept as provided in the ne+t

s#cceedin% section$ all persons ,ho can perceive$ and perceivin%$ can a8e their 8no,n

perception to others$ a" !e ,itnesses.

)eli%io#s or political !elief$ interest in the o#tcoe of the case$ or conviction of a crie

#nless other,ise provided !" la,$ shall not !e %ro#nd for dis2#alification.-

Basic ualifications)

a. ?e can perceive+ and in perceivingb. ?e can ma7e 7no&n his perception to others.c. ?e must ta7e either an oath or an affirmation (Sec.1, Rule 132)d. ?e must not possess the dis"ualifications imposed by la& or these Rules.

(. Copetenc" Vers#s Credi!ilit" of a =itness

CO7PETENC C)EDI:IIT

• A matter of la& and a matter of

rule.

• Refers to the believability of a

&itness and has nothing to do &iththe la& or the rules.

• Refers to the basic "ualifications of

a &itness as his capacity toperceive and his capacity tocommunicate his perception toothers.

• Refers to the &eight and the

trust&orthiness or reliability of thetestimony.

•

)n deciding the competence of a &itness, the court &ill not in"uireinto his trust&orthiness.

Other 0actors that Do Not Affect the Copetenc" of =itnesses

/



As a general rule:

a. Religious belief+b. >olitical belief+c. )nterest in the outcome of the case+d. Conviction of a crime, unless other&ise provided by la&.

E*ample)• Those ,ho have !een convicted of falsification of a document $ per+ury or

false testimony are dis2#alified fro !ein% ,itnesses to a ,ill (Art. ,1# CC.

• The relationship of a ,itness does not ipso facto render hi a !iased ,itness

in criinal cases ,here the 2#ant# of evidence is P:)D. There is noreason ,h" the sae principle sho#ld not appl" to civil cases ,here the2#ant# of evidence is onl" preponderance of evidence (ort$%est Airlines#/nc. v. C$ion0# .R. o. 12222# &an. 31# ,.

. Dis"ualifications of Fitnesses

A. D)N0A3))CAT)G5 *O REAG5 G E5TA3 )5CA>AC)TO GR )AT0R)TO

ec. 1. -is>ulifiction y reson of mentl incpcity or immturity . P The follo&ingpersons cannot be &itnesses:

3a4Those ,hose ental condition$ at the tie of their prod#ction for e+aination$is s#ch that the" are incapa!le of intelli%entl" a8in% 8no,n their perception toothers5

3!4 Children ,hose ental at#rit" is s#ch as to render the incapa!le ofperceivin% the facts respectin% ,hich the" are e+ained and of relatin% thetr#thf#ll".'

7ENTA INCAPACIT I77ATH)IT

• To be dis"ualified as a &itness by

reason of ental incapacit", thefollo&ing must concur:

1. The person must be incapable ofintelligently ma7ing 7no&n hisperception to others+

. ?is incapability must e!ist at the

time of his production fore!amination.

• To be dis"ualified as a &itness by

reason of iat#rit", the follo&ingmust concur:

1. The mental maturity of the &itness must render himincapable of perceiving the factsrespecting &hich he is e!amined+and

. ?e is incapable of relating hisperception truthfully.

;



• The incompetence of the &itness

must e!ist not at the time of hisperception of the facts but at thetime he is produced for e!aminationand consists in his inability tointelligently ma7e 7no&n &hat hehas perceived.

• The incompetence of the &itness

must occur at the time the &itnessperceives the event including hisincapability to relate his perceptionstruthfully.

!. Dis2#alification !" reason of arria%e

• 7arital Dis2#alification )#le 3Spo#sal I#nit"4

“Sec. ((. Disualification by reason of marria0e. * D#rin% their arria%e$

neither the h#s!and nor the ,ife a" testif" for or a%ainst the other ,itho#t the

consent of the affected spo#se$ e+cept in a civil case !" one a%ainst the other$ orin a criinal case for a crie coitted !" one a%ainst the other or the latters

direct descendants or ascendants.'

Reasons for t$e rule (Alvare4 v. Ramire4# 563 SCRA 6)

a. There is identity of interests bet&een husband and &ife+b. )f one &ere to testify for or against the other, there is a conse"uent danger of per(ury+

c. The policy of the la& is to guard the security and confidences of private life, even atthe ris7 of an occasional failure of (ustice, and to prevent domestic disunion andunhappiness+ and

d. Fhen there is &ant of domestic tran"uility there is danger of punishing one spousethrough the hostile testimony of the other.

E*ceptions to t$e 7arital Disualification Rule)

)n the follo&ing instances, a spouse may testify for or against the other even &ithout the

consent of the latter:

a. )n a civil case by one against the other+b. )n a criminal case for a crime committed by one against the other, or the latter8s

direct descendants or ascendants.

C. DISHAI0ICATION : )EASON O0 DEAT> O) INSANIT O0 ADVE)SEPA)T.

• Survivors$ip Disualification Rule or Dead 7an8s Statute

<



This rule applies only to a civil case or special proceeding (Rel$o, Reme$il

+ Compen$ium, Mol. , 2004 %$. !.70).

“Sec. (-. Disualification by reason of deat$ or insanity of adverse party .

* Parties or assi%nor of parties to a case$ or persons in ,hose !ehalf a case is

prosec#ted$ a%ainst an e+ec#tor or adinistrator or other representative of adeceased person$ or a%ainst a person of #nso#nd ind$ #pon a clai or deand

a%ainst the estate of s#ch deceased person or a%ainst s#ch person of #nso#nd

ind$ cannot testif" as to an" atter of fact occ#rrin% !efore the death of s#ch

deceased person or !efore s#ch person !ecae of #nso#nd ind.'

Elements)

a. The defendant in the case is the e!ecutor or administrator or a representative of thedeceased or the person of unsound mind+

b. The suit is upon a claim by the plaintiff against the estate of said deceased or person

of unsound mind+

c. The &itness is the plaintiff, or an assignor of that party, or a person in &hose behalfthe case is prosecuted+ and

d. The sub(ect of the testimony is as to any matter of fact occurring before the death ofsuch deceased person or before such person became of unsound mind.

D. Dis2#alification !" reason of privile%ed co#nication.

Sec. (. Disualification by reason of privile0ed communication. * The

follo,in% persons cannot testif" as to atters learned in confidence in the

follo,in% cases<

1. >#s!and and =ife

7arital !rivile0ed Communications

“Sec. (3a4 The h#s!and or the ,ife$ d#rin% or after the arria%e$ cannot !ee+ained ,itho#t the consent of the other as to an" co#nication received inconfidence !" one fro the other d#rin% the arria%e e+cept in a civil case !" onea%ainst the other$ or in a criinal case for a crie coitted !" one a%ainst theother or the latters direct descendants or ascendants5-

Elements)

a. There must be a valid marriage bet&een the husband and &ife+b. There is a communication received in confidence by one from the other+ and

c. The confidential communication &as received during the marriage.

2



• or the information to be confidential, it must be made during and by reason of the

marital relations and is intended not to be shared &ith others. Fithout such intention,common reason suggests that the information is not confidential.

7arital Dis2#alification )#le (Sec. #Rule 13

7arital Privile%ed Co#nication )#le(Sec. 5(a#Rule13

• Refers to communications that are

not intended to be confidentialbecause they &ere uttered in thepresence of third parties are notdeemed confidential even &hen

made during the marriage+ but ec. could apply instead of ec.$a% &hen used as parts of atestimony for or against a party.

• ?as reference to confidential

communications received by onespouse from the other during themarriage.

• Applies only to testimonies of a

confidential nature received byone spouse from the other duringthe marriage+ does not includeacts merely observed by thespouse unless such acts areintended as a means of conveyingconfidential communication by oneto the other.

• )ncludes facts, occurrences or

information even prior to the

marriage.

• Applies only to confidential

information received during the

marriage.

• ay be asserted only during the

marriage.

• The spouse affected by the

disclosure of the information ortestimony may ob(ect even afterthe dissolution of the marriage.

• Re"uires that the spouse for or

against &hom the testimony isoffered is a party to the action.

• 5ot re"uired+ applies regardless of

&hether the spouses are parties ornot.

• The prohibition is a testimony for or

against the other.

• Fhat is prohibited is the

e5mintion of a spouse as tomatters received in confidence byone from the other during themarriage.

(. Attorne" and Client

=



“Sec. (3!4 An attorne" cannot$ ,itho#t the consent of his client$ !ee+ained as to an" co#nication ade !" the client to hi$ or his advice %iventhereon in the co#rse of$ or ,ith a vie, to$ professional eplo"ent$ nor can anattorne"s secretar"$ steno%rapher$ or cler8 !e e+ained$ ,itho#t the consent ofthe client and his eplo"er$ concernin% an" fact the 8no,led%e of ,hich has !eenac2#ired in s#ch capacit"5-

Reuisites)

a. There must be a communication made by the client to the attorney or an advicegiven by the attorney to his client+

b. The communication or advice must have been given in confidence+ and

c. The communication or advice must have been given either in the course of theprofessional employment or &ith a vie& to professional employment.

• Fhere a person consults an attorney not as a la&yer but merely as a friend, or a

participant in a business transaction, the consultation &ould not be one made inthe course of a professional employment or &ith a vie& to professionalemployment as re"uired by ec. $b%.

• 5ot confined to actual pending cases+ may refer to anticipated litigations or may

not refer to any litigation at all.

• The statements of the client need not have been made to the attorney in person.

Those made to the attorney8s secretary, cler7 or stenographer for transmission tothe attorney for the purpose of the professional relationship or &ith a vie& to suchrelationship or those 7no&ledge ac"uired by such employees in such capacityare covered by the privilege.

• tatements should have been intended to be confidential.

• >rivilege does not apply in suits bet&een attorney and client.

• The client o&ns the privilege+ it is he &ho can invo7e it.

• The protection of the privilege &ill generally survive the death of the client.

-. Ph"sician and Patient

“Sec. (3c4 A person a#thori?ed to practice edicine$ s#r%er" or o!stetricscannot in a civil case$ ,itho#t the consent of the patient$ !e e+ained as to an"advice or treatent %iven !" hi or an" inforation ,hich he a" have ac2#iredin attendin% s#ch patient in a professional capacit"$ ,hich inforation ,asnecessar" to ena!le hi to act in capacit"$ and ,hich ,o#ld !lac8en therep#tation of the patient5-

Bhe informtion hich cnnot e $isclose$ refers to

'@



a. Any advice given to the client+b. Any treatment given to the client+

c. Any information ac"uired in attending such patient provided that the advice,treatment or information &as made or ac"uired in a professional capacity and &asnecessary in order to enable him to act in that capacity+ and

d. That the information sought to be disclosed &ould tend to blac7en the reputation ofthe patient (Sec.24:c<, Rule 130).

• This privilege applies to a ci&il cse, &hether the patient is party or not+

cannot be claimed in a criminal case presumably because the interest of thepublic in criminal prosecution should be deemed more important than thesecrecy of the communication.

• The ptient is the holder of the privilege (;etropolitn +ife n$ nsurnce Co.

&. =ufmn, 104 Colo. 13, 87 !.2$ 78 in ;cCormic, %&i$ence, 102).

• Claimed against a person duly authoried to practice medicine, surgery, or

obstetrics.

• The rule does not re"uire that the relationship bet&een the physician and the

patient be a result of a contractual relationship+ it could be the result of a"uasi#contractual relationship.

• The physician may be said to be acting in a professionl cpcity &hen he

attends to the patient for either curti&e or pre&enti&e tretment. ('ir$*s%stte, 173 Cl., 917, 190 !c, 1078/ Smrt &. =nss City, 208 ;o., 192,10 S.. 70").

• Results of utopsies may not be deemed covered by the privilege because

autopsies are not intended for treatment.

• The privilege does not apply to shield the commission of a crime or &hen the

purpose is an unla&ful one.

• The privilege survives the death of the patient ('ssil &. For$ ;otor Co., 278

;ich. 173, 270 .. 28, 107 A.+.R. 14"1).

• The patient may i&e the privilege e!pressly or impliedly. There could also

be a &aiver by operation of la& or the rules (Sec.4, Rule 28).

. Priest and Penitent

“Sec. (3d4 A inister or priest cannot$ ,itho#t the consent of the persona8in% the confession$ !e e+ained as to an" confession ade to or an" advice%iven !" hi in his professional character in the co#rse of discipline en&oined !"the ch#rch to ,hich the inister or priest !elon%s5-

'1



• The person ma7ing the confession holds the privilege and the priest or

minister holding the confession in his professional capacity is prohibitedfrom ma7ing a disclosure of the confession &ithout the consent of theperson confessing.

• The privilege e!tends not only to a confession made by the penitent but

also to any $&ice given by the minister or priest.

• The priest or minister must be duly ordained or consecrated by his sect.

• The communication must be made pursuant to confession of sins

(imore on %&i$ence, 848).

/. P#!lic officers

“Sec. (3e4 A p#!lic officer cannot !e e+ained d#rin% his ter of office orafter,ards$ as to co#nications ade to hi in official confidence$ ,hen theco#rt finds that the p#!lic interest ,o#ld s#ffer !" the disclos#re.'

• The disclosure or non#disclosure is not dependent on the &ill of the

officer but on the determination by a competent court.

• The privilege may be invo7ed not only during the term of office of the

public officer but also after.

E. PA)ENTA AND 0IIA P)IVIEGE

ec. /. !rentl n$ filil pri&ilee. 6 5o person may be compelled to testify against hisparents, other direct ascendants, children, or other direct descendants.-

Hnder the 0ail" Code$ no descendant shall !e copelled$ in a criinal case$ to testif"a%ainst his parents or %randparents. The Code$ ho,ever$ specificall" provides for an e+ceptionin the follo,in% instances<

a. =hen s#ch testion" is indispensa!le in a crie coitted a%ainst said descendant5or

!. In a crie coitted !" one parent a%ainst the other (Art. 12# 9amily Code of t$e!$ilippines.

• The privile%e !elon%s to and a" !e invo8ed !" the descendant.

. E+aination of =itnesses

Open Co#rt E+aination# ec. 1 of Rule 1' provides for the e!amination of the

&itness in open court, or unless it calls for a different mode, it can be done orally.

#There are ho&ever, testimonies &hich need not be given in open court. 0nder ec 1/

of the Rules on ummary >rocedure, the affidavits of the parties shall constitute the direct

testimony of the &itnesses &ho e!ecuted the same.

'



6n ci&il cses, the parties are merely re"uired to submit affidavits of their &itnesses and

other evidence on the factual issue, together &ith the position papers, setting forth the la& and

the facts relied upon. $ec. =, ummary >rocedure% Deposition need not be ta7en in open court

since they may be ta7en before a notary public or a person authoried to administer oath. n

criminl cses, either party may utilie the testimony of a &itness &ho is deceased, out of the

country, or one &ho is unavailable to testify despite e!ercise of due diligence, even if thetestimony is one used in another case or proceeding.

Oath or Affiration# &itness may ta7e an oath or affirmation but such option is given to

&itness not the court.

An :at$ is an out&ard pledge made out of immediate sense of responsibility to od or a

solemn appeal to a supreme being in attestation of the truth of some statement. An Affirmation

is a substitute for an oath and is a solemn or formal declaration that the &itness &ill tell the truth.

#E!amination shall be done in open court and under oath or affirmation. The ans&er of a

&itness shall be given orally e!cept if: a% the &itness is incapacitated to spea7 b% or the "uestion

calls for a different mode of ans&er.

#the "uestions propounded to a &itness and his ans&ers thereto shall be recorded.

tatements of the Budge shall also be recorded.

#the official stenographer shall ma7e a transcript of the record of the proceedings and shall

be certified by him as correct. The transcript shall be deemed prima facie a correct statement of

such proceedings.

A. )i%hts and O!li%ations of a =itness

#As a rule, a &itness has obligation to ans&er "uestion, although his ans&er may tend toestablish a claim against him. $ec. ', Rule 1'%

Rights of a Fitness:

a. 5ot to give an ans&er that &ill tend to sub(ect him to a penalty for an offense

b. To be protected from irrelevant, improper or insulting "uestions and from harsh or

insulting demeanor+

c. 5ot to be e!amined e!cept only as to matters pertinent to the issue+

d. 5ot to be detained longer than the interest of (ustice re"uires

e. 5ot to give an ans&er &hich &ill tend to degrade his reputation unless it be the very

fact at issue or to a fact from &hich the fact in issue &ould be presumed.

#A &itness has a right not to give an ans&er that &ill sub(ect him to a penalty, unless other&ise

provided by la& $ec 'LM. Rule 1'%

''



#Right of a person against self#incrimination $Art. ))). ec. ', Constitution%

#R.A. ;=21 $Fitness >rotection, ecurity and *enefit Act%, a &itness admitted into the &itness

protection program cannot refuse to testify or give evidence or produce boo7s, documents

records or &ritings necessary for the prosecution of the offenseKs for &hich he has been

admitted on the ground of the right against self#incrimination.

Case: Accused compelled to submit himself to a blood test &here blood samples &ould be

e!tracted from his veins to determine &hether he has ?)4.

Ruling: The rights of the accused are not violated by such testings. There is no testimonial

compulsion involved by e!tracting blood from the accused. 5o violation of the right to privacy

and the right to be presumed innocent.

99 E!tracting blood samples and cutting strands of hair do not involve testimonial compulsion but

purely mechanical acts &hich re"uires neither discretion nor reasoning. The right against self#

incrimination applies only to testimonial evidence. $Ti(ing v. CA%

#Right of the accused against being degraded $right not to give ans&er that &ill degrade him%.E!ception: even if the ans&er is degrading to his reputation, he must ans&er, if the degrading

ans&er: a% is the very fact in issue b% refers to a fact from &hich the fact in issue &ould be

presumed.

#*ut a &itness must ans&er to the fact of his previous final conviction for an offense.

#if the &itness is the accused, he may totally refuse to ta7e the stand. A mere &itness cannot

altogether refuse to ta7e the stand. *efore he can refuse to ans&er, he has to &ait for the

incriminating "uestion.

#Counsel must al&ays aid his &itnesses being sub(ected to intimidation, harassment andembarrassment.

E+aination of a Child =itness

#E!amination shall be done in open court. Ans&er of a child &itness given orally, unless

incapacitated to spea7, or "uestions calls for a different mode of ans&er. $ec 2, Rule on the

e!amination of a child &itness%

#this does not refer to the competency e!amination of the child but to a situation &here the child

is already testifying in court. 0nder ec $c%, only specified persons are allo&ed to attend the

competency e!amination of the child and is obviously not an open court e!amination.

#&hen a child is testifying, the court may e!clude the public and persons &ho do not have a

direct interest in the case, including members of the press, or if it &ould cause psychological

harm to him, hinder the ascertainment of truth, or result in his inability to effectively

communicate due to embarrassment, or if evidence to be produced is offensive to decency or

public morals.

'



#if a child does not understand the English or ilipino language or is unable to communicate in

said languages due to his developmental level, fear, shyness, disability or other similar reason,

an interpreter may be appointed by the court, motu proprio or upon motion, to interpret for the

child. )t is not a dis"ualification if the interpreter is another &itness in the same case or he is a

member of the family of the child. )f interpreter is also a &itness, he shall testify ahead of the

child.

#The court may appoint motu proprio or on motion, a facilitator , in case the child is unable to

understand or respond to "uestions as7ed. A acilitator may be a child psychologist,

psychiatrist, social &or7er, guidance counselor, teacher, religious leader, parent, or relative.

$ec. 1@%

#A child testifying shall have the right to be accompanied by t&o or more person of his o&n

choosing for emotional support, &ho shall remain &ithin the vie& of the child during his

testimony. *ut the court shall instruct the support person not to prompt, s&ay or influence the

child during his testimony.

#A support person &ho is also a &itness may be dis"ualified if it could be established that his

attendance poses a substantial ris7 of influencing the content of the testimony of the child. A

support person &ho is also a &itness, if allo&ed, shall testify ahead of the child.

#An application for the child may be made for the testimony of the child to be ta7en in a room

outside the courtroom and to be televised to the courtroom by live#lin7 television. The

application may be made by the prosecutor, counsel or guardian ad litem, at least five $/% days

before the trial date. The court may order that the testimony of the child be ta7en by live#lin7

television if there is a substantial li7elihood that the child &ould suffer trauma from testifying in

the presence of the accused, counsel or prosecutor. ;rauma must be of 7ind that &ould impair

the completeness or truthfulness of the testimony of the child.

#if the child is testifying by live#lin7 television, the court may allo& the child to enter the

courtroom, if it8s necessary to identify the accused at trial.

#testimony of a child shall be preserved on videotape, digital disc, or other similar devices &hich

shall be made part of the court record and shall be sub(ect to a protective order.

#to shield the child from the accused, the child may testify through one#&ay mirrors, and other

devices.

#reports regarding a child shall be confidential and 7ept under seal. E!cept upon &ritten re"uest

and order of the court, record shall be released only to the follo&ing+ 1%members of the courtstaff for administrative use+ %prosecuting attorney '%defense counsel %guardian ad litem

/%agents of investigating la& enforcement agencies ;%other person as determined by court.

#3)A*3E for contempt of court# &hoever publishes or causes to publish in any format, the name,

address, telephone number, school, or other identifying information of a child &ho is or is

alleged to be a victim or accused of a crime or a &itness thereof, or an immediate member

family of a child.

'/



#&here a youthful offender has been charged before a prosecutor or a municipal (udge and the

charges have been dropped, all the RECGRD shall be considered >R)4)3EED. )f he is

charged and ac"uitted or case is dismissed, the records are also privilege as a rule.

#a youthful offender &ho fails to ac7no&ledge the case against him or to recite any fact related

thereto in response to any in"uiry made to him for any purpose, such not be held guilty of

per(ury or concealment or misrepresentation.

:. Order in the e+aination of an individ#al ,itness

1. Direct E+aination 6e!amination in chief of a &itness by the party

presenting him on the facts relevant to the issue. A procedure for obtaining

information from one8s o&n &itness in an orderly fashion. To elicit facts about

the client8s cause of action or defense.

. Cross E+aination# e!amination of &itness by the adverse party after said

&itness has given his testimony on direct e!amination. As a rule, its scope is

not confined to matters stated in the direct e!amination. Although ec. ; ofRule 1', allo&s the cross#e!aminer, this provision merely states a general

rule.

An un&illing or hostile &itness may be cross#e!amined only as to sub(ect

matter of his e!amination#in#chief. The same limited scope of a cross

e!amination is imposed upon the cross e!aminer &here the &itness

e!amined is an accused because he is sub(ect to cross e!amination on

matters covered by the direct e!amination.

T&o basic purposes: a% to bring out facts favorable to counsel8s client not

established by the direct testimony and b% to enable counsel to impeach or toimpair the credibility of the &itness.

'. )e6direct e+aination# conducted after the cross e!amination of the

&itness. A &itness on direct e!amination may be re#e!amined to e!plain or

supplement his ans&er given during cross#e!amination. The counsel may

elicit testimony to correct or repel any &rong impression or interferences that

may be created in the cross e!amination. )t8s an opportunity to rehabilitate a

&itness &hose credibility has been damaged.

. )e6cross e+aination# this is an e!amination conducted upon conclusion of

the re#direct e!amination. The adverse party may "uestion the &itness on

matters stated in his re#direct e!amination.

/. )ecallin% the ,itness# if &itness has been e!amined by both sides, the

&itness cannot be recalled &ithout leave of court. )t8s a matter of (udicial

discretion to &hich the court shall be guided by the interest of (ustice.

';



99Death or A!sence of a =itness6 )f a &itness dies before his cross#e!amination is over, his

testimony on the direct may be stric7en out only &ith testimony not covered by the cross

e!amination. Absence is not enough to &arrant stri7ing out his testimony for failure to appear for

further e!amination &here the &itness had already been sufficiently cross#e!amined. )f &itness

is not cross#e!amined because of cause attributable to the cross e!amining party and the

&itness had al&ays made himself available, the direct testimony of the &itness shall remain in

record.

C. eadin% and isleadin% 2#estions

#eadin% #estion# a "uestion framed in a manner &here it indicates to the &itness the

ans&er desired by the party as7ing "uestion. )t is not appropriate in direct or re#directe!aminations &hen a &itness is being as7ed about a ma(or element of the cause of

action or defense. *ut is allo&ed in cross or re#cross e!amination.

#3eading Nuestions are allo&ed in direct e!amination in the follo&ing instances: a% on

preliminary matters b% &hen &itness is ignorant, or a child of tender years, or is feeble#

minded, deaf#mute and there is difficulty in getting direct or intelligible ans&ers c% on

hostile &itness d% &itness is an adverse party, or an officer, director, managing agent of

a corporation, partnership or association &hich is an adverse party.

eadin% 2#estion to a child ,itness

0nder ec @ of the Rule on E!amination of Child Fitness the court may allo& leading

"uestions in all stages of e!amination of a child provided that such &ill further the

interest of (ustice. *ut under rule 1' of the Rules of Court, a leading "uestion may be

as7ed of a child only if there is difficulty of eliciting from said child a direct and intelligible

ans&er.

67isleadin% #estion# is one &hich assumes as true a fact not yet satisfied to by the

&itness or contrary to that &hich he has previously stated. )t is not allo&ed on any type

of e!amination.

'<



E!ample: Oou testified that you and the accused &ere in a car bound for *aguio City.

?o& fast &ere you drivingH $isleading because there &as no previous testimony from

the &itness that he &as driving.

D. 7ethods of Ipeachent of adverse part"s ,itness

)mpeachment# a techni"ue employed usually part of the cross#e!amination to discredit a

&itness by attac7ing his credibility, &hich is vital because it is lin7ed to a &itness ability and

&illingness to tell the truth.

G#idelines in the Ipeachent of a =itness<

#done by the party against &hom the &itness is called.

#sub(ect to certain e!ceptions: 1% the party producing the &itness is barred fromimpeaching his o&n &itness, e!cept &hen a &itness is a hostile or un&illing &itness.

$upon (udicial evaluation that &itness possesses an interest adverse to the party calling

him or there is ade"uate sho&ing that the reluctance of the &itness is un(ustified or that

he misled the party into calling him as a &itness % &hen &itness is an adverse party or

is an officer, director or managing agent of a corporation, partnership or association.

#it is improper for the party calling the &itness to present evidence of the good character

of his o&n &itness. ame is allo&ed only if the character of the &itness is impeached.

7anner of Ipeachin% the ,itness of the adverse part" $ec 11, rule 1'%

a% Contradictory Evidence

b% *y evidence that his general reputation for truth, honesty, and integrity is bad.

c% *y evidence that he has made at other times statements inconsistent &ith his

present testimony.

99 A &itness cannot be impeached by evidence of particular &rongful acts e!cept evidence of

his final conviction of an offense as disclosed by his e!amination or by the record of the

(udgment.

99 An un&illing or hostile &itness so declared cannot be impeached by evidence of his bad

character.

'2



E. >o, the ,itness is ipeached !" evidence of inconsistent stateents 3la"in% the

predicate4

Prior Inconsistent Stateents# are statements made by a &itness on an earlier

occasion &hich is inconsistent &ith his present testimony. $ec 1'%

a"in% the Predicate# is a preliminary re"uirement before the impeachment

process prospers. Elements: a% The alleged statements must be related to the

&itness including the circumstances of the times and places and the persons

present. )f the statements are in &riting they must be sho&n to him. b% ?e must

be as7ed &hether he made such statements and also e!plain them )f he admits

ma7ing those statements.

irst, As7 the &itness to repeat and reaffirm his most recent statement.

econd, Relate to the &itness his prior inconsistent statement and at the same

time building up- or highlighting the contradictory utterance by relating to the

&itness the circumstance of time, persons and place. And &itness is as7ed

&hether or not the statements &ere made.

JJIpeachent !" sho,in% !ad rep#tation# &hen a &itness testifies he puts his credibility at

issue because the &eight of his testimony depends upon his credibility. Gne &ay to impair his

credibility is sho&ing a not so pleasing personality. Evidence of bad reputation for purpose of

impeachment should refer only to the follo&ing specific aspects: $a% for truth $b% for honesty $c%

integrity. ?e cannot be impeached for his reputation for other grounds.

JJIpeachent !" evidence of !ad rep#tation not !" !ad character# “Character,- is made

up of things an individual is and does &hereas “)ep#tation' is &hat people thin7 an individual

is and &hat they say about him.

99ection 11 of Rule 1' disallo&s the ipeachent of a ,itness !" evidence of his

,ron%f#l acts. E!cept in prior conviction of an offense &here it is sho&n through, either of t&o

&ays: a% by his e!amination, e.i. by cross e!amining him b% by presenting the record of his prior

conviction.

99Ipeachent of the Adverse Part" as a ,itness# that the &itness is the adverse party does

not mean that the calling party &ill not be bound by the former8s testimony. ?e is not bound

'=



only in sense that he may contradict him by introducing other evidence to prove a state of facts

contrary to &hat the &itness testifies. 0nli7e an ordinary &itness, the calling party may impeach

an adverse &itness in all respects as if he had been called by the adverse party, e!cept by

evidence of his bad character.

JJE+cl#sion and Separation of =itnesses# the court to e!clude other &itness so that he may

not hear the testimony of other &itnesses or to separate them to prevent them from conversing

&ith one another until all have been e!amined.

99Fhen &itness may refer to a memorandum# during his testimony, in order to refresh his

memory, a &itness may refer to a memorandum or anything &ritten or recorded by himself or

recorded by others under his direction. uch memorandum should have been &ritten at the time

the fact occurred or immediately thereafter or at any time &hen the event or fact &as fresh in his

memory.

0. Evidence of the %ood character of a ,itness

A party calling a &itness, cannot initiate proof of his good moral character, he

does not need to prove because he is presumed to be truthful and of good

character. )t is only &hen his character has been impeached that he can prove

his being good. This rule refers only to mere &itness. )t does not refer to an

accused in a criminal case. *ecause in a criminal case, the accused may prove

his good moral character relevant to the offense charged even before hischaracter is attac7ed. *ut the prosecution cannot initiate proof of the bad

character of the accused. )t can only do so by rebuttal.

/. Adssions and Confessions

Adission # may be implied

# is an act, declaration or omission of a party as to a relevant fact# )t is a voluntary ac7no&ledgement made by a party of the e!istence of the truth of certain

facts &hich are inconsistent &ith his claims in an action# There is merely statement of fact not directly involving an ac7no&ledgement of guilt or of

the criminal intent to commit the offense &ith &hich one is charged# Applied to criminal case, it is a statement of the accused, direct or implied, of facts

pertinent to the issue, and tending , in connection &ith proof of other facts, to prove hisguilt

#Confessions# cannot be implied+ it should be a direct and positive ac7no&ledgment of guilt

# )t is the declaration of an accused ac7no&ledging his guilt of the offense charged or ofany offense necessarily included therein

@



# Applied in criminal case, is an ac7no&ledgment in e!press terms, by a party of his guiltof the crime charged

)#le1-B$ Sec (< Adissions of a Part"<

The act, declaraton or ommssion of a party as to a relevant fact may be given in evidenceagainst the offeror.-

Effects of adission of a part"<

# ay be given in evidence against him# ?is admission is not admissible in his favor, because it &ould not be a self# serving

evidence# This rule is based on the notion that no man &ould ma7e any declaration against himself

unless it is true.

Classification of Adissions and Confessions<

Admission may be:

a. E!press: a positive statement or act &hile+ implied: is one &hich may be inferred fromthe declarations or acts of a person

b. Budicial admission: made in the course of a (udicial proceeding+ e!tra# (udicial admission#made out of court or even in a proceeding other than the one under consideration

c. Adoptive: occurs &hen a person manifests his assent to the statements of anotherperson. The admission may be received as evidence if it can be sho&n that a partyadopted the statements as his o&n.

Confession is al&ays e!pressed. )t must be a positive ac7no&ledgment of guilt and cannot be

inferred.

Adission !" Silence< )#le 1-B

Sec. -(. Admission by silence. * An act or declaration ade in the presence and ,ithinthe hearin% or o!servation of a part" ,ho does or sa"s nothin% ,hen the act ordeclaration is s#ch as nat#rall" to call for action or coent if not tr#e$ and ,hen properand possi!le for hi to do so$ a" !e %iven in evidence a%ainst hi.

Re"uisites:

1% That he heard and understood the statement% That he &as at liberty to ma7e a denial'% That the statement &as about a matter affecting his rights or in &hich he &as interested

and &hich naturally calls for a response% That the facts &here &ithin his 7no&ledge/% That the fact admitted from his silence is material to the issue

1



# 5ot every silence is an implied admission. or instance, the silence of a person underinvestigation for the commission of an offense should not be construed as an admission bysilence because of constitutonal reasons.

a. Res /nter Alios Acta )#le

# fully e!pressed as res inter alios acta alteri nocere non debet# 3iterally means things done bet&een strangers ought not to in(ure those &ho are notparties to them

( :ranches of )es Inter Alios Acta )#le

0irst :ranch< Sec (;$ )#le 1-B< Adissions !" third6 part"

Sec (;. Adissions !" third6 part". 6 The ri%hts of a third part" cannot !e pre&#diced !"an act$ declaration or oission of another$ e+cept as hereinafter provided.

# A man8s actions and declarations should not affect or pre(udice others.

# This rule has reference only to e!tra(udicial declarations. tatements made in open courtby a &itness implicating persons aside from his o&n (udicial admissions, are admissibleas declarations from one &ho has personal 7no&ledge of the facts testified to.

E+ceptions to the )es Inter Alios Acta )#le< 0irst :ranch

A. Adission !" a Co6 partner or A%ent< ec=, Rule 1'@

Sec. (@. Admission by co-partner or a0ent . * The act or declaration of a partner or a%entof the part" ,ithin the scope of his a#thorit" and d#rin% the e+istence of the partnershipor a%enc"$ a" !e %iven in evidence a%ainst s#ch part" after the partnership or a%enc"is sho,n !" evidence other than s#ch act or declaration. The sae r#le applies to the act

or declaration of a &oint o,ner$ &oint de!tor$ or other person &ointl" interested ,ith thepart". 3(a4

Re"uisites:

1% The declaration or act of the partner and agent must have been made or dne &ithin thescope of his authority

% The declaration or act of the partner and agent must have been made or done during thee!itence of the partnership or agency

'% The e!istence of the partnership or agency os proven by evidence other thatn thedeclaration or act of the partner or agent

#Fhatever is said by an agent to a third person, during the course of the agency and &ithin thescope of his actual or apparent authority, relative

:. Adission !" a Co6 conspirator< ec '@, Rule 1'@

Sec. -B. Admission by conspirator . * The act or declaration of a conspirator relatin% tothe conspirac" and d#rin% its e+istence$ a" !e %iven in evidence a%ainst the co6conspirator after the conspirac" is sho,n !" evidence other than s#ch act of declaration.3(94



Re"uisites:

1% The declaration or act must be made or done during the e!istence of the conspiracy% The declaration or act must relate to the conspiracy'% The conspiracy must be sho&n by evidence other than the declaration or act

C. Adission !" Privies< ec'1, Rule 1'@

Sec. -1. Admission by privies. * =here one derives title to propert" fro another$ theact$ declaration$ or oission of the latter$ ,hile holdin% the title$ in relation to thepropert"$ is evidence a%ainst the forer. 3(;4

>rivies# are persons &ho are parta7ers or have an interest in any action or thing, or any relationto

another

Re"uisites:

1% There must have been an act or declaration or an omission by a predeessor# in# interest% The act or declaration or omission of the predecessor must have accurred &hile he &as

holding the title to the property'% The act, declaration or omission must be in relation to the property

Second :ranch< Sec-$ )#le 1-(< Siilar Acts As Evidence

Sec -. Siilar Acts As Evidence. 6 Evidence that one did or did not do a certain thin% atone tie$ is not adissi!le to prove that he did or did not do the sae or siilar thin% atanother tie !#t it a" !e receive to prove a specific intent or 8no,led%e$ identit"$ plan$s"ste$ schee$ ha!it c#sto or #sa%e and the li8e.

# The rule prohibits the admission of propensity evidence- &hich is evidence that tends tosho& that &hat a person has done at one time is probative of the contention that he hasdone a similar act at another time.

Evidence of similar Acts is admissible for any of the follo&ing purposes:

a. pecific intent+b. Qno&ledge+c. )dentity+d. >lan+e. ystem+f. cheme+g. ?abit+h. Custom+i. 0sage+ and the li7e

# The admissibility of similar acts or previous conduct &ould depend on the purposes for &hich such acts or conduct are offered.

'



# or e!ample, evidence of the other similar crimes, acts or &rongs previously committedby the accused are admissible to sho& that the offense for &hich he is currently chargedand his prior similar acts sho& the signature- or handi&or7- of the accused, or becauseof identical modus operadi.

. >earsa" )#le< )#le 1-B

Sec. -.;estimony 0enerally confined to personal <no%led0e5 $earsay e*cluded . * A ,itness can testif" onl" to those facts ,hich he 8no,s of his personal 8no,led%e5 thatis$ ,hich are derived fro his o,n perception$ e+cept as other,ise provided in theser#les. 3-Ba4

6Evidence is called hearsay &hen its probative force depends, in &hole or in part, on thecompetency and credibility of some persons other than the &itness by &hom it is sought toproduce it.

Elements of ?earsay Evidence:

1. There must be an out of court statement.

# the form does not matter, it may be oral or &ritten+ &hat matters is that the statement &as notbe made by the declarant in the hearing or trial.

. The statement made out of court is repeated and offered by the &itness in court to prove thetruth of the matters asserted by the statement.

!. )eason for E+cl#sion of >earsa" Evidence<

c. E+ceptions to the >earsa" )#le<

314 )#le 1-B. Sec. -9. Dyin0 declaration. * The declaration of a d"in% person$ ade#nder the conscio#sness of an ipendin% death$ a" !e received in an" case ,hereinhis death is the s#!&ect of in2#ir"$ as evidence of the ca#se and s#rro#ndin%circ#stances of s#ch death. 3-1a4

Elements of a Dying Declarations:

1 That the declaration is one made by a dying person. That the declaration &as made by said dying person under a consciousness of his

imminent death' That the declaration refers to theca#se and circ#stances surrounding the death of

the declarant and not of anyone else

That the declaration is offered in a case &here the declarant8s death is the sub(ect ofin"uiry

/ That the declarant is competent as a &itness had he survived; The declarant should have died

Rationale for Admissibility: it has been ruled that as a general rule, &hen a person a person isat the point of death, every motive to falsehood is silenced, and the mind is induced by the most



po&erful consideration to spea7 the truth, and therefore, the statements under suchcircumstances deserve &eight.

:The dying declaration of the deceased need not be directed to a particular person in"uiringfrom the declarant as to the circumstances of his death. Anyone &ho has 7no&ledge of &hatthe declarant said, &hether it be directed to him or not, or &hether he had made in"uiries from

the declarant or not, can testify thereto.

Assailing a Dying Declaration:

:Dying declaration does not create a conclusive presumption f credibility of the admitteddeclaration.

: The declaration may be attac7ed in the same manner as one &ould do to a testimony in anopen court.

: Courts have to apply to dying declarations the same rules applied in testing the credibility oftestimony of a &itness in court.

3(4 Sec. -;. Declaration a0ainst interest . * The declaration ade !" a person deceased$or #na!le to testif"$ a%ainst the interest of the declarant$ if the fact is asserted in thedeclaration ,as at the tie it ,as ade so far contrar" to declarants o,n interest$ that areasona!le an in his position ,o#ld not have ade the declaration #nless he !elievedit to !e tr#e$ a" !e received in evidence a%ainst hiself or his s#ccessors in interestand a%ainst third persons.

:Figmore considers a declaraion against interest as also founded on necessity on account ofthe impossibility of obtaining other evidence from the same source, the declarant beingunavailable in person to testify on the stand on the account of death, absence from the

(urisdiction or serious illness.

:As a rule, the interest against &hich the declaration may have been made should be either a

pecuniary or moral interest, but in our (urisdiction, the declaration could be against one8s penalinterest because if one admits to a crime, he is also civilly liable, a liability that is pecuniary.

:The declaration must be one againts interest. )f the declaration is favorable to the interest of thedeclaration it does not fall &ithin the e!ception.

:A statement by the debtor before he died, that he o&es the creditor the sum of money or anoral ac7no&ledgement by the principal that he received the money previously entrusted to hisagent, are clear declarations against the interest of the person ma7ing the statement.

3-4 Sec. -@. Act or declaration about pedi0ree. * The act or declaration of a persondeceased$ or #na!le to testif"$ in respect to the pedi%ree of another person related to hi

!" !irth or arria%e$ a" !e received in evidence ,here it occ#rred !efore thecontrovers"$ and the relationship !et,een the t,o persons is sho,n !" evidence otherthan s#ch act or declaration. The ,ord Kpedi%reeK incl#des relationship$ fail"%enealo%"$ !irth$ arria%e$ death$ the dates ,hen and the places ,here these fastocc#rred$ and the naes of the relatives. It e!races also facts of fail" histor"intiatel" connected ,ith pedi%ree.

Re"uisites:

/



a. The declarant is dead or unable to testifyb. That the declarant is related by birth or marriage to the person &hose pedigree is in

issuec. The declaration &as made before the controversyd. The relationship bet&een the t&o persons is sho&n by some evidence other than such

act or declaration

>edigree# includes relationship, family genealogy, birth, marriage, death, the dates &hen andthe places &here these facts occured and the names of the relatives. )t also embraces facts offamily history intimately connected &ith pedigree.

34 Sec. B. 9amily reputation or tradition re0ardin0 pedi0ree. * The rep#tation ortradition e+istin% in a fail" previo#s to the controvers"$ in respect to the pedi%ree ofan" one of its e!ers$ a" !e received in evidence if the ,itness testif"in% thereon !ealso a e!er of the fail"$ either !" consan%#init" or affinit". Entries in fail" !i!les orother fail" !oo8s or charts$ en%ravin%s on rin%s$ fail" portraits and the li8e$ a" !ereceived as evidence of pedi%ree.

3/4 Sec. 1. Common reputation. * Coon rep#tation e+istin% previo#s to thecontrovers"$ respectin% facts of p#!lic or %eneral interest ore than thirt" "ears old$ orrespectin% arria%e or oral character$ a" !e %iven in evidence. 7on#ents andinscriptions in p#!lic places a" !e received as evidence of coon rep#tation.

<Admissible because of trust&orthiness.

:)t cannot establish pedigree

34Sec. (. !art of res 0estae. * Stateents ade !" a person ,hile a startlin%occ#rrence is ta8in% place or iediatel" prior or s#!se2#ent thereto ,ith respect to thecirc#stances thereof$ a" !e %iven in evidence as part of res 0estae. So$ also$

stateents accopan"in% an e2#ivocal act aterial to the iss#e$ and %ivin% it a le%alsi%nificance$ a" !e received as part of the res 0estae. 3-a4

:Res estae is an old &ord &hich literally means things done.

:The use of res gestae in the >hilippines is limited to t&o matters: $1% spontaneous statementsand $%verbal acts. )t has been held that in spontaneous e!clamations or statements, the resgestae is the startling occurence, &hereas in verbal acts, the res gestae are the statementsaccompanying the e"uivocal act.

1. pontaneous Acts

Characteristics:

a. That there is a startling event or occurence ta7ing placeb. That &hile the event is ta7ing placeor immediately to or subse"uent thereto, a statement

has been madec. The statements &ere made before the daclarant had time to contrive or devise a

falsehoodd. That the statement relates to the circumstances of the startling event or occurence

;



. 4erbal Acts

Re"uisites:

a. The principal act to be characteried must be e"uivocalb. The e"uivocal act must be material to the issue

c. The statement must accompany the e"uivocal actd. The statement gives a legal significance to the e"uivocal act

394 Sec. -. Entries in t$e course of business. * Entries ade at$ or near the tie oftransactions to ,hich the" refer$ !" a person deceased$ or #na!le to testif"$ ,ho ,as in aposition to 8no, the facts therein stated$ a" !e received as prima facie evidence$ ifs#ch person ade the entries in his professional capacit" or in the perforance of d#t"and in the ordinar" or re%#lar co#rse of !#siness or d#t".

<Commonly encountered in breach of contract suits and suits filed for collection of sum ofmoney.

Elements:

a. Entries &ere made at or near the time of the transactions referred tob. uch entries &ere made in the regular course of businessc. The person ma7ing the entries did so in his professional capacity or in the performance

of duty and in the regular course of businessd. The person ma7ing the entry is no& dead or unable to testify

3;4 Sec. . Entries in official records. * Entries in official records ade in theperforance of his d#t" !" a p#!lic officer of the Philippines$ or !" a person in theperforance of a d#t" speciall" en&oined !" la,$ are prima facie evidence of the factstherein stated.

<The entries are admissible as prima facie evidence of the facts stated in the entries.

3@4 Sec. /.Commercial lists and t$e li<e. * Evidence of stateents of atters of interestto persons en%a%ed in an occ#pation contained in a list$ re%ister$ periodical$ or otherp#!lished copilation is adissi!le as tendin% to prove the tr#th of an" relevant atterso stated if that copilation is p#!lished for #se !" persons en%a%ed in that occ#pationand is %enerall" #sed and relied #pon !" the therein.

<Certain commercial lists and reports of matters of interest to persons engaged in a particularoccupation, are admissible in evidence as e!ceptions to the hearsay rule, provided, they aremade by the persons engaged in that occupation and are generally used and relied upon by

them and those lists and reports are published.

31B4 Sec. . =earned treatises. * A p#!lished treatise$ periodical or paphlet on as#!&ect of histor"$ la,$ science$ or art is adissi!le as tendin% to prove the tr#th of aatter stated therein if the co#rt ta8es &#dicial notice$ or a ,itness e+pert in the s#!&ecttestifies$ that the ,riter of the stateent in the treatise$ periodical or paphlet isreco%ni?ed in his profession or callin% as e+pert in the s#!&ect.

<



< ?istory boo7s, published findings of scientists fall &ithin the e!ception if an e!pert on thesub(ect testifies to the e!pertise of the &riter or if the court ta7es (udicial notice of such fact.

3114 Sec. 9.;estimony or deposition at a former proceedin0. * The testion" ordeposition of a ,itness deceased or #na!le to testif"$ %iven in a forer case orproceedin%$ &#dicial or adinistrative$ involvin% the sae parties and s#!&ect atter$

a" !e %iven in evidence a%ainst the adverse part" ,ho had the opport#nit" to cross6e+aine hi.

Re"uisites:

a. The &itness is dead or unable to testifyb. ?is testimony or deposition &as given in a former case or proceeding, (udicial or

administrative, bet&een the same parties or those representing the same interestsc. The former case involved the same sub(ect as that in the present case, although on

different causes of actiond. The issue testified to by the &itness in the former trial is the same issue involved in the

present casee. The adverse party had an opportunity to cross e!amine the &itness in the former case

9.OPINION )HE

The rule on opinion evidence provide:

“Section ;. eneral rule. * The opinion of &itness is not admissible, e!cept as indicated in

the follo&ing sections.

a. Opinion of e+pert ,itness

Section @. :pinion of e*pert %itness. * The opinion of a &itness on a matter re"uiring

special 7no&ledge, s7ill, e!perience or training &hich he sho&n to posses, may be received in

evidence.

!. Opinion of ordinar" ,itness

Section /B. :pinion of ordinary %itnesses. * The opinion of a &itness for &hich proper

basis is given, may be received in evidence regarding P

$a% the identity of a person about &hom he has ade"uate 7no&ledge+

$b% A hand&riting &ith &hich he has sufficient familiarity+ and

$c% The mental sanity of a person &ith &hom he is sufficiently ac"uainted.

The &itness may also testify on his impressions of the emotion, behavior, condition or appearance of

a person.-

2



AD7ISSI:IIT O0 OPINION EVIDENCE

As a rule, the opinion of a &itness is inadmissible. $Sec. 48, Rule 130, Rules of Court).This is because &hen a &itness testifies, a &itness does so &ith respect to facts personallyobserved by him and it is for the court to dra& conclusions from the facts testified to.

=>EN OPINION EVIDENCE IS AD7ISSI:E5 ELPE)T TESTI7ON

Fhen the opinion is that of an e!pert, i.e., the opinion of a &itness re"uiring special7no&ledge, e!perience or training &hich he is sho&n to possess, it may be received inevidence $sec. 4", Rule 130, Rules of Court)

The court is not ho&ever, bound by the opinion of an e!pert such as a hand&ritinge!pert. E!pert opinion evidence is to be considered or &eighed by the court li7e any othertestimony, in the light of its o&n general 7no&ledge and e!perience upon sub(ect of in"uiry.(-iNon &s BuNon, D.R. o. 172197, #uly ", 2008)

E!pert opinions are not ordinarily conclusive. Fhen faced &ith conflicting e!pertopinions, courts give &eight and credence to that &hich is more complete, thorough andscientific. ('clso &s. !$ios, D.R. o. 1731"2, pril 22, 2008).

A finding of forgery does not depend entirely on the testimonies of hand&ritinge!perts, because the (udge must conduct an e!amination of the "uestioned signature inorder to arrive at a reasonable conclusion as to its authority. (!ontoe &s. !ontoe, D.R. o.1"8, April 22, 2008)

OPINION O0 AN O)DINA) =ITNESS5 =>EN AD7ISSI:E

( Sec. 0, Rule 130, Rules of Court)

;. C>A)ACTE) EVIDENCE

Character is the aggregate of moral "ualities &hich belong to and distinguish anindividual person+ the general results of ones distinguishing attribute ('lc +Os-ictionry). Fhile character is &hat the person really is, reputation is &hat he is supposed tobe in accordance &ith &hat people say he is, and is dependent on ho& people perceive aperson to be.

Character evidence is, as a rule, not admissible (Sec. 1, Rule 130, Rules of Court)

Grdinarily, if the issues in the case &ere allo&ed to be influenced by evidence of the

character or reputation of the parties, the trial &ould be apt to have the aspects of apopularity contest rather than a factual in"uiry into the merits of the case. After all, thebusiness of the court is to try the case, and not the man+ and a very bad man may have arighteous cause (!eople &s. +ee, D.R. o. 13"070, ;y 2", 2002)

a. IN C)I7INA CASES

EVIDENCE O0 GOOD 7O)A C>A)ACTE) O0 T>E ACCHSED

=



The applicable provision states:

“Section /1. C$aracter evidence not 0enerally admissible5 e*ceptions< *

3a4 In Criinal Cases<

314 The acc#sed a" prove his %ood oral character ,hich is pertinent to the oral trait

involved in the offense char%ed.'

Fhen the accused presents proof of his good moral character, this strengthens the

presumption of innocence, and &here good character and reputation is established, an

inference arises that the accused did not commit the crime charged. This vie& proceeds

from the theory that a person of good character and high reputation is not li7ely to have

committed the act charged against him (!eople &s. +ee, D.R. o. 13"070, ;y 2", 2002).

?e may not ho&ever, prove his character by evidence of specific instances of goodconduct (2" Am #ur 2$, %&i$ence , 397/ Do&ernment of Mirin sln$s &. Drnt :CA3 M< 77F2$ 08, 1" Fe$ Rules %&i$ Ser& 920)

EVIDENCE O0 :AD 7O)A C>A)ACTE) O0 T>E ACCHSED


“Section /1. C$aracter evidence not 0enerally admissible5 e*ceptions< *3a4 In Criinal Cases<

314 + + +

3(4 Hnless in re!#ttal$ the prosec#tion a" not prove his !ad oral character ,hich is

pertinent to the oral trait involved in the offense char%ed.'

The prosecution cannot prove the bad moral character of the accused in its evidence#in#chief. )t can only do so in rebuttal (Sec 1:<:2<, Rule 130, Rules of Court). This meansthat the prosecution may not offer evidence of the character of the accused unless theaccused himself has offered evidence of his bad moral character. The prosecution therefore,must &ait until the accused puts his character in issue during the proceedings.

This is intended to avoid unfair pre(udice to the accused &ho might other&ise beconvicted not because he is guilty but because he is a person of bad character. The offeringof evidence of good moral character is a privilege of the accused and the prosecutioncannot even comment on his failure to produce such evidence. *ut once he raises the issueof his good character, the prosecution may, in rebuttal, offer evidence of the defendants badcharacter (!eople &s +ee, D.R. o. 13"070, ;y 2", 2002)

EVIDENCE O0 C>A)ACTE) O0 T>E O00ENDED PA)T


“Section /1. C$aracter evidence not 0enerally admissible5 e*ceptions< *3a4 In Criinal Cases<

314 + + +

/@



3(4 + + +

3-4 The %ood or !ad oral character of the offended part" a" !e proved if it

tends to esta!lish in an" reasona!le de%ree the pro!a!ilit" or ipro!a!ilit" of the

offense char%ed.'

The above provision pertains only to criminal cases, not to administrative offenses.

Also, not every good or bad moral character of the offended party may be proved under theprovision but only those &hich &ould establish the probability or improbability of the offensecharged. This means that the character evidence must be limited to the traits andcharacteristics involved in the type of offense charged. (Ci&il Ser&ice Commission &s'eln, 440 SCRA 78).

!. IN CIVI CASES

“Section /1. C$aracter evidence not 0enerally admissible5 e*ceptions< *3a4 + + +

3!4 In Civil Cases<

Evidence of the oral character of a part" in civil case is adissi!le onl" ,henpertinent to the iss#e of character involved in the case.

3c4 In the case provided for in )#le 1-($ Section 1$ 3a$ 9a4'

EVIDENCE O0 GOOD 7O)A C>A)ACTE) O0 A =ITNESS

Evidence of the good moral character of a &itness is not admissible until such

character has been impeached (Sec 14, Rule 132 n$ Sec 1:c<, Rule 130, Rules of Court).

)t is error for counsel to offer evidence of good moral character of his &itness &ho is

presented in court for the first time since he could not have been previously impeached.

@. )HE ON ELA7INATION O0 A C>ID =ITNESS 3A.7. No. BB6B96SC4

A. APPICA:IIT O0 T>E )HE

0nless other&ise provided, this Rule shall govern the e!amination of child &itnesses

&ho are victims of crime, accused of a crime, and &itnesses to crime. )t shall apply in all

criminal proceedings and non#criminal proceedings involving child &itnesses. (Sec. 1, Rule

Gn %5mintion of A Chil$ itness, A.;. o. 0046076SC)

:. 7EANING O0 “C>ID =ITNESS'

A child &itness- is any person &ho at the time of giving testimony is belo& the age of

eighteen $12% years.

)n child abuse cases, a child includes one over eighteen $12% years but is found by the

court as unable to fully ta7e care of himself or protect himself from abuse, neglect, cruelty,

e!ploitation, or discrimination because of a physical or mental disability or condition. (Sec.

4:<, Rule Gn %5mintion of A Chil$ itness, A.;. o. 0046076SC)

CO7PETENC O0 A C>ID =ITNESS

/1



Every child is presumed "ualified to be a &itness. (Sec. 9, Rule Gn %5mintion of A

Chil$ itness) To rebut the presumption of competence en(oyed by a child, the burden of

proof lies on the party challenging his competence (Sec. 9:<, Rule Gn %5mintion of A

Chil$ itness).

Fhen the court finds that substantial doubt e!ists regarding the ability of the child to

perceive, remember, communicate, distinguish truth from falsehood, or appreciate the duty

to tell the truth in court, the court shall conduct a competency e!amination of the child. The

court may do so motu proprio or on motion of a party (Sec. 9, Rule Gn %5mintion of A

Chil$ itness)

A party &ho see7s a competency e!amination must present proof of necessity of a

competency e!amination. >roof of such necessity must be grounded on reasons other than

age of the child because such age in itself is not a sufficient basis for a competency

e!amination (Sec. 9:<, Rule Gn %5mintion of A Chil$ itness).

The competency e!amination of a child &itness is not open to the public. Gnly thefollo&ing are allo&ed to attend the e!amination:

$1% The (udge and necessary court personnel+

$% The counsel for the parties+

$'% The guardian $ litem+

$% Gne or more support persons for the child+ and

3/4 The defendant, unless the court determines that competence can be fully

evaluated in his absence. (Sec. 9:c<, Rule Gn %5mintion of A Chil$ itness)

The competency e!amination of the child shall be conducted only by the (udge. )f

counsels of parties desire to as7 "uestions, they cannot do so directly. )nstead, they are

allo&ed to submit "uestions to the (udge &hich he may as7 the child in his discretion (Sec.

9:$<, Rule Gn %5mintion of A Chil$ itness).

The "uestions as7ed at the competency e!amination shall be appropriate to the age

and developmental level of the child. The "uestions shall not be related to the issues at the

trial but shall focus on the ability of the child to remember, to communicate, to distinguish

bet&een truth and falsehood and to appreciate the duty to testify truthfully (Sec. 9:e<, Rule

Gn %5mintion of A Chil$ itness).

The assessment is designed to be a continuing one. The court has the duty to

continuously assessing the competency of the childthroughout his testimony (Sec. 9:f<, RuleGn %5mintion of A Chil$ itness).

D. ELA7INATION O0 A C>ID =ITNESS

The e!amination of a child &itness presented in a hearing or any proceeding shall be

done in open court. 0nless the &itness is incapacitated to spea7, or the "uestion calls for a

different mode of ans&er, the ans&ers of the &itness shall be given orally.

/



The party &ho presents a child &itness or the guardian $ litem of such child &itness may,

ho&ever, move the court to allo& him to testify in the manner provided in this Rule (Sec. 8,

Rule Gn %5mintion of A Chil$ itness).

E. IVE6INF TV TESTI7ON O0 A C>ID =ITNESS IN C)I7INA CASES =>E)E

T>E C>ID IS A VICTI7 O) A =ITNESS


3a4 The prosecutor, counsel or the guardian $ litem may apply for an order that the

testimony of the child be ta7en in a room outside the courtroom and be televised to the

courtroom by live#lin7 television.

*efore the guardian $ litem applies for an order under this section, he shall consult the

prosecutor or counsel and shall defer to the (udgment of the prosecutor or counsel regarding

the necessity of applying for an order. )n case the guardian $ litem is convinced that the

decision of the prosecutor or counsel not to apply &ill cause the child serious emotional

trauma, he himself may apply for the order.

The person see7ing such an order shall apply at least five $/% days before the trial date,

unless the court finds on the record that the need for such an order &as not reasonably

foreseeable.

3!4The court may motu proprio hear and determine, &ith notice to the parties, the need for

ta7ing the testimony of the child through live#lin7 television.

3c4 The (udge may "uestion the child in chambers, or in some comfortable place other

than the courtroom, in the presence of the support person, guardian $ litem, prosecutor,

and counsel for the parties. The "uestions of the (udge shall not be related to the issues at

trial but to the feelings of the child about testifying in the courtroom.

3d4 The (udge may e!clude any person, including the accused, &hose presence or conduct

causes fear to the child.

3e4 The court shall issue an order granting or denying the use of live#lin7 television and

stating the reasons therefor. )t shall consider the follo&ing factors:

$1% The age and level of development of the child+

$%?is physical and mental health, including any mental or physical disability+

$'%Any physical, emotional, or psychological in(ury e!perienced by him+

$% The nature of the alleged abuse+

$/% Any threats against the child+

$;% ?is relationship &ith the accused or adverse party+

$<% ?is reaction to any prior encounters &ith the accused in court or else&here+

$2% ?is reaction prior to trial &hen the topic of testifying &as discussed &ith him by

parents or professionals+

$=% pecific symptoms of stress e!hibited by the child in the days prior to testifying+

/'



$1@% Testimony of e!pert or lay &itnesses+

$11% The custodial situation of the child and the attitude of the members of his family

regarding the events about &hich he &ill testify+ and

$1% Gther relevant factors, such as court atmosphere and formalities of court

procedure.

3f4 The court may order that the testimony of the child be ta7en by live#lin7 television if there

is a substantial li7elihood that the child &ould suffer trauma from testifying in the presence of

the accused, his counsel or the prosecutor as the case may be. The trauma must be of a

7ind &hich &ould impair the completeness or truthfulness of the testimony of the child.

3%4 )f the court orders the ta7ing of testimony by live#lin7 television:

$1% The child shall testify in a room separate from the courtroom in the presence of the

guardian $ litem+ one or both of his support persons+ the facilitator and interpreter, if any+ a

court officer appointed by the court+ persons necessary to operate the closed#circuit

television e"uipment+ and other persons &hose presence are determined by the court to be

necessary to the &elfare and &ell#being of the child+

$% The (udge, prosecutor, accused, and counsel for the parties shall be in the courtroom.The testimony of the child shall be transmitted by live#lin7 television into the courtroom for

vie&ing and hearing by the (udge, prosecutor, counsel for the parties, accused, victim, and

the public unless e!cluded.

$'% )f it is necessary for the child to identify the accused at trial, the court may allo& the child

to enter the courtroom for the limited purpose of identifying the accused, or the court may

allo& the child to identify the accused by observing the image of the latter on a television

monitor.

$% The court may set other conditions and limitations on the ta7ing of the testimony that it

finds (ust and appropriate, ta7ing into consideration the best interests of the child.

3h4 The testimony of the child shall be preserved on videotape, digital disc, or other similardevices &hich shall be made part of the court record and shall be sub(ect to a protective

order as provided in section '1$b%.

(Sec. 2, Rule Gn %5mintion of A Chil$ itness).

0. VIDEOTAPED DEPOSITION O0 A C>ID =ITNESS

The applicable provision states

SEC. (9. >ideotaped deposition."

3a4 The prosec#tor$ co#nsel$ or %#ardian ad litem a" appl" for an order that a deposition !e

ta8en of the testion" of the child and that it !e recorded and preserved on videotape. :efore

the %#ardian ad litem applies for an order #nder this section$ he shall cons#lt ,ith the

prosec#tor or co#nsel s#!&ect to the second and third para%raphs of section (/3a4.

3!4 If the co#rt finds that the child ,ill not !e a!le to testif" in open co#rt at trial$ it shall iss#e

an order that the deposition of the child !e ta8en and preserved !" videotape.

3c4 The &#d%e shall preside at the videotaped deposition of a child. O!&ections to deposition

testion" or evidence$ or parts thereof$ and the %ro#nds for the o!&ection shall !e stated and

/



shall !e r#led #pon at the tie of the ta8in% of the deposition. The other persons ,ho a" !e

peritted to !e present at the proceedin% are<

314 The prosec#tor5

3(4 The defense co#nsel5

3-4 The %#ardian ad litem5

34 The acc#sed$ s#!&ect to s#!6section 3e453/4Other persons ,hose presence is deterined !" the co#rt to !e necessar" to the ,elfare

and ,ell6!ein% of the child5

34 One or !oth of his s#pport persons$ the facilitator and interpreter$ if an"5

394 The co#rt steno%rapher5 and

3;4 Persons necessar" to operate the videotape e2#ipent.

3d4 The ri%hts of the acc#sed d#rin% trial$ especiall" the ri%ht to co#nsel and to confront and

cross6e+aine the child$ shall not !e violated d#rin% the deposition.

3e4 If the order of the co#rt is !ased on evidence that the child is #na!le to testif" in the

ph"sical presence of the acc#sed$ the co#rt a" direct the latter to !e e+cl#ded fro the roo

in ,hich the deposition is cond#cted. In case of e+cl#sion of the acc#sed$ the co#rt shallorder that the testion" of the child !e ta8en !" live6lin8 television in accordance ,ith section

(/ of this )#le. If the acc#sed is e+cl#ded fro the deposition$ it is not necessar" that the

child !e a!le to vie, an ia%e of the acc#sed.

3f4 The videotaped deposition shall !e preserved and steno%raphicall" recorded. The

videotape and the steno%raphic notes shall !e transitted to the cler8 of the co#rt ,here the

case is pendin% for safe8eepin% and shall !e ade a part of the record.

3%4 The co#rt a" set other conditions on the ta8in% of the deposition that it finds &#st and

appropriate$ ta8in% into consideration the !est interests of the child$ the constit#tional ri%hts

of the acc#sed$ and other relevant factors.

3h4The videotaped deposition and steno%raphic notes shall !e s#!&ect to a protective order as

provided in section -13!4.

3i4 If$ at the tie of trial$ the co#rt finds that the child is #na!le to testif" for a reason stated in

section (/3f4 of this )#le$ or is #navaila!le for an" reason descri!ed in section 3c4$ )#le (- of

the 1@@9 )#les of Civil Proced#re$ the co#rt a" adit into evidence the videotaped

deposition of the child in lie# of his testion" at the trial. The co#rt shall iss#e an order

statin% the reasons therefor.

3&4 After the ori%inal videotapin% !#t !efore or d#rin% trial$ an" part" a" file an" otion for

additional videotapin% on the %ro#nd of ne,l" discovered evidence. The co#rt a" order an

additional videotaped deposition to receive the ne,l" discovered evidence. (Rule Gn

%5mintion of A Chil$ itness).

G. >EA)SA ELCEPTION IN A C>ID A:HSE CASES


//



Section (;. ?earsay e*ception in c$ild abuse cases. @ A stateent ade !" a child

descri!in% an" act or attepted act of child a!#se$ not other,ise adissi!le #nder the

hearsa" r#le$ a" !e aditted in evidence in an" criinal or non6criinal proceedin% s#!&ect

to the follo,in% r#les<

3a4 :efore s#ch hearsa" stateent a" !e aditted$ its proponent shall a8e 8no,n to the

adverse part" the intention to offer s#ch stateent and its partic#lars to provide hi a fairopport#nit" to o!&ect. If the child is availa!le$ the co#rt shall$ #pon otion of the adverse

part"$ re2#ire the child to !e present at the presentation of the hearsa" stateent for cross6

e+aination !" the adverse part". =hen the child is #navaila!le$ the fact of s#ch circ#stance

#st !e proved !" the proponent.

3!4 In r#lin% on the adissi!ilit" of s#ch hearsa" stateent$ the co#rt shall consider the tie$

content and circ#stances thereof ,hich provide s#fficient indicia of relia!ilit". It shall

consider the follo,in% factors<

314 =hether there is a otive to lie5

3(4 The %eneral character of the declarant child5

3-4 =hether ore than one person heard the stateent534 =hether the stateent ,as spontaneo#s5

3/4 The tiin% of the stateent and the relationship !et,een the declarant child and ,itness5

34 Cross6e+aination co#ld not sho, the lac8 of 8no,led%e of the declarant child5

394 The possi!ilit" of fa#lt" recollection of the declarant child is reote5 and

3;4The circ#stances s#rro#ndin% the stateent are s#ch that there is no reason to s#ppose

the declarant child isrepresented the involveent of the acc#sed.

3c4 The child ,itness shall !e considered #navaila!le #nder the follo,in% sit#ations<

314 Is deceased$ s#ffers fro ph"sical infirit"$ lac8 of eor"$ ental illness$ or ,ill !e

e+posed to severe ps"cholo%ical in&#r"5 O)

3(4 Is a!sent fro the hearin% and the proponent of his stateent has !een #na!le to proc#re

his attendance !" process or other reasona!le eans.

3d4 =hen the child ,itness is #navaila!le$ his hearsa" testion" shall !e aditted onl" if

corro!orated !" other adissi!le evidence.

>. SELHA A:HSE S>IED )HE

The applicable provision states

SEC. -B. Se*ual abuse s$ield rule." 3a4 /nadmissible evidence." The follo,in% evidence is not adissi!le in an" criinal

proceedin% involvin% alle%ed child se+#al a!#se<

314 Evidence offered to prove that the alle%ed victi en%a%ed in other se+#al !ehavior5 and

3(4 Evidence offered to prove the se+#al predisposition of the alle%ed victi.

3!4 E*ception." Evidence of specific instances of se+#al !ehavior !" the alle%ed victi to

prove that a person other than the acc#sed ,as the so#rce of seen$ in&#r"$ or other ph"sical

evidence shall !e adissi!le.

A part" intendin% to offer s#ch evidence #st<

/;



314 0ile a ,ritten otion at least fifteen 31/4 da"s !efore trial$ specificall" descri!in% the

evidence and statin% the p#rpose for ,hich it is offered$ #nless the co#rt$ for %ood ca#se$

re2#ires a different tie for filin% or perits filin% d#rin% trial5 and

3(4 Serve the otion on all parties and the %#ardian ad litem at least three 3-4 da"s !efore the

hearin% of the otion.

:efore adittin% s#ch evidence$ the co#rt #st cond#ct a hearin% in cha!ers andafford the child$ his %#ardian ad litem# the parties$ and their co#nsel a ri%ht to attend and !e

heard. The otion and the record of the hearin% #st !e sealed and reain #nder seal and

protected !" a protective order set forth in section -13!4. The child shall not !e re2#ired to

testif" at the hearin% in cha!ers e+cept ,ith his consent.'

I. P)OTECTIVE O)DE)S

Any videotape or audiotape of a child that is part of the court record shall be under a

protective order that provides as follo&s:

314 Tapes may be vie&ed only by parties, their counsel, their e!pert &itness, and the

guardian $ litem.

3(4 5o tape, or any portion thereof, shall be divulged by any person mentioned in sub#

section $a% to any other person, e!cept as necessary for the trial.

3-4 5o person shall be granted access to the tape, its transcription or any part thereof

unless he signs a &ritten affirmation that he has received and read a copy of the protective

order+ that he submits to the (urisdiction of the court &ith respect to the protective order+ and

that in case of violation thereof, he &ill be sub(ect to the contempt po&er of the court.

34 Each of the tape cassettes and transcripts thereof made available to the parties, their

counsel, and respective agents shall bear the follo&ing cautionary notice:

This ob(ect or document and the contents thereof are sub(ect to a protective order

issued by the court in $case title%, $case number%. They shall not be e!amined, inspected,

read, vie&ed, or copied by any person, or disclosed to any person, e!cept as provided in the

protective order. 5o additional copies of the tape or any of its portion shall be made, given,

sold, or sho&n to any person &ithout prior court order. Any person violating such protective

order is sub(ect to the contempt po&er of the court and other penalties prescribed by la&.-

3/4 5o tape shall be given, loaned, sold, or sho&n to any person e!cept as ordered by

the court.

34 Fithin thirty $'@% days from receipt, all copies of the tape and any transcriptsthereof shall be returned to the cler7 of court for safe7eeping unless the period is e!tended

by the court on motion of a party.

394 This protective order shall remain in full force and effect until further order of the court.

(Sec. 31:<, Rule Gn %5mintion of A Chil$ itness).

/<



Additional protective orders.P The court may motu proprio or on motion of any party,

the child, his parents, legal guardian, or the guardian $ litem, issue additional orders to

protect the privacy of the child (Sec. 31:c<, Rule Gn %5mintion of A Chil$ itness).

Any record regarding a child shall be confidential and 7ept under seal. E!cept upon

&ritten re"uest and order of the court, a record shall only be released to the follo&ing:$1% embers of the court staff for administrative use+

$% The prosecuting attorney+

$'% Defense counsel+

$% The guardian $ litem+

$/%Agents of investigating la& enforcement agencies+ and

$;% Gther persons as determined by the court.(Sec. 31:<, Rule Gn %5mintion of A Chil$

itness)

0. O00E) AND O:ECTION

1. O00E) O0 EVIDENCE

The court shall consider no evidence &hich has not been formally offered. The

purpose for &hich the evidence is offered must be specified (Sec. 34, Rule 132, Rules of

Court).

(. =>EN TO 7AFE AN O00E)

As to &hen the offer of evidence is made depends upon the nature of the evidence.

$a% As regards the testimony of a &itness, the offer must be made at the time the

&itness is called to testify.

$b% Documentary and ob(ect evidence shall be offered after the presentation of a

partys testimonial evidence. uch offer shall be done orally unless allo&ed by the court to

be done in &riting (Sec. 3, Rule 132, Rules of Court).

The mere fact that a document is mar7ed as an e!hibit does not mean that it has

thereby already been offered as part of the evidence of a party (!eople &s. Decomo, 24

SCRA 82). ?o&ever, &here the accused fails to ob(ect to the admissibility of certain items

during their formal offer, he is deemed to have &aived his right against their admissibility

(!eople &s -iN, 271 SCRA 04)

-. O:ECTION

P#rposes of O!&ections<

Gb(ections may be made for any of the follo&ing purposes:

/2



$a% irst, ob(ections are made to 7eep out inadmissible evidence that &ould cause

harm to a clients cause. The rules of evidence are not self#operating and hence, must be

invo7ed by &ay of an ob(ection+

$b% Gb(ections are interposed to protect the record, i.e. to present the issue of

inadmissibility of the offered evidence in a &ay that if the trial court rules erroneously, the

error can be relied upon as a ground for future appeal+ $c% Gb(ections may be made to protect a &itness from being embarrassed on the stand

or from being harassed by the adverse counsel+

$d% Gb(ections are inter(ected to e!pose the adversarys unfair tactics li7e his

consistently as7ing obviously leading "uestions+

$e% Gb(ections may made to give the trial court an opportunity to correct its o&n errors

and at the same time &arn the court that a ruling adverse to the ob(ector may supply a reason

to invo7e a higher courts appellate (urisdiction+ and

$f% Gb(ections are made to avoid a &aiver of the inadmissibility of an other&ise

inadmissible evidence.

GENE)A AND SPECI0IC O:ECTIONS

An ob(ection must point out the specific ground of the ob(ection, and if it does not do

so, no error is committed in overruling it (7 Am #ur 2$, 2n$ %$., 24629).

The last paragraph of ec. ';, Rule 1' provides, . . . the grounds for the ob(ections

must be specified.- An ob(ector must be e!plicit as to the legal ground he invo7es.

The follo&ing e!amples are considered as general ob(ections:

$a% Gb(ection, The evidence is incompetent-+

$b% Gb(ection )nadmissible-+$c% Gb(ection: )ncompetent, )rrelevant, and )mproper-+

$d% Gb(ection: )mproper-

They do not clearly indicate to the (udge the ground upon &hich the ob(ections are

predicated.

Rule 1' does not tell us ho& specific an ob(ection must be. ?o&ever, ob(ection must

be specific enough to ade"uately inform the court the rule of evidence. Gb(ections li7e,

$a% Nuestion calls for a hearsay ans&er+

$b% Fitness cannot testify on a privileged communication+

$c% The "uestion is beyond the scope of the direct e!amination+

$d% )mpeachment is improperK

### are specific enough for anyone to 7no& the basis of the ob(ection.

There are cases &here incompetency of the evidence is so palpable that a mere

general ob(ection is deemed sufficient, and &here the portion of the evidence ob(ected to is

clearly pointed out, and its illegality is apparent on its face, then the ob(ection must be allo&ed.

/=



0O)7A AND SH:STANTIVE O:ECTIONS

ormal ob(ection 6 is one directed against the alleged defect in the formulation of the

"uestion. $E!ample: ambiguous "uestions, leading and misleading "uestions, repetitious

"uestions%

ubstantive ob(ection 6 are ob(ections made and directed against the very nature of

the evidence, i.e., it is inadmissible either because it is irrelevant or incompetent or both.

$E!ample: parol, not the best evidence, hearsay, opinion, res inter lios ct%

O:ECTIONS 7HST :E TI7E

)n order to be timely therefore, the ob(ection must be made at the earliest opportunity

(88 C.#.S. 239). Fhat the earliest opportunity is depends upon the manner the evidence is

offered.

$a% Gb(ection to evidence offered orally must be made immediately after the offer is made.

$b% Gb(ection to a "uestion propounded in the course of the oral e!amination of a &itness

shall be made as soon as the grounds therefore shall become reasonably apparent.

$c% An offer of evidence in &riting shall be ob(ected to &ithin three $'% days after notice of

the offer unless a different period is allo&ed by the court.

(Sec. 39, Rule 132, Rules of Court).

The rules therefore, ma7e the offer of evidence the frame of reference for a timely

ob(ection. ?ence, it is to be assumed that an ob(ection to the evidence before it is offered, is

premature and no adverse inference may be had against a party &ho does not ob(ect to the

evidence before it is offered.

. )EPETITION O0 AN O00E)

Fhen it becomes reasonably apparent in the course of the e!amination of a &itness

that the "uestions being propounded are of the same class as those to &hich ob(ection has

been made, &hether such ob(ection &as sustained or overruled, it shall not be necessary to

repeat the ob(ection, it being sufficient for the adverse party to record his continuing

ob(ection to such class of "uestions (Sec. 37, Rule 132, Rules of Court).

/. )HING

The ruling if the court must be given immediately after the ob(ection is made e!cept

&hen the court desires to ta7e reasonable time to inform itself on the "uestion presented.

?o&ever, the court must give its ruling during the trial and at such time as &ill give a party

an opportunity to meet the situation presented by the ruling (Sec. 38, Rule 132, Rules of

Court).

;@



The ruling of the court sustaining or overruling an ob(ection need not be stated e!cept

if the ob(ection is based on t&o or more grounds. )n such case, a ruling sustaining the

ob(ection must specify the ground or grounds relied upon (Sec. 38, Rule 132, Rules of

Court).

. ST)IFING OHT O0 AN ANS=E)

hould a &itness ans&er the "uestion before the adverse party had the opportunity to

voice fully its ob(ection to the same, and such ob(ection is found to be meritorious, the court

shall sustain the ob(ection and order the ans&er given to be stric7en off the record.

Gn proper motion, the court may also order the stri7ing out of ans&ers &hich are

incompetent, irrelevant, or other&ise improper(Sec. 3", Rule 132, Rules of Court).

=>EN TO HSE A 7OTION TO ST)IFE

A motion to stri7e may be availed in the follo&ing instances:

$a% Fhen the ans&er is premature+

$b% Fhen the ans&er of the &itness is irrelevant, incompetent or other&ise improper+

$c% Fhen the ans&er is unresponsive+

$d% Fhen the &itness becomes unavailable for cross#e!amination through no fault of the

cross#e!amining party+ or

$e% Fhen the testimony &as allo&ed conditionally and the condition for its admissibility

&as not fulfilled.

9. TENDE) O0 ELCHDED EVIDENCE 3Offer of Proof4


“Section B. ;ender of e*clude evidence. -- If the doc#ents or thin%s offered in

evidence are e+cl#ded !" the co#rt$ the offeror a" have the sae attached to or ade part of

the record. If the evidence e+cl#ded is oral$ the offeror a" state for the record the nae and

other personal circ#stances of the ,itness and the s#!stance of the proposed testion".'

The foregoing rule, called offer of proof- in other (urisdictions, embodies the procedure

for the tender of e!cluded evidence.- Fhy ma7e a tender of e!cluded evidenceH There are

t&o reasons:

$1% To allo& the court to 7no& the nature of the testimony or the documentary evidence

and convince the trial (udge to permit the evidence or testimony.$% Even, if he is not convinced to reverse his earlier ruling, the tender is made to create

and preserve a record for appeal.

?o& is tender doneH The procedural depends upon the type of evidence e!cluded. Fhere

the evidence involved is documentary or ob(ect evidence, the tender is made by having the

document or ob(ect attached to or made part of the record (Sec. 40, Rule 132, Rules of

Court).

;1



)f the evidence e!cluded is testimonial, the offeror may state for the record the name and

other personal circumstances of the &itness and the substance of the proposed testimony

(Sec. 38, Rule 132, Rules of Court).

;