evidence reviewer

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Evidence Finals reviewer Dean M.V.F. Leonen 1st Semester A.Y. 2011-2012

Janz Hanna Ria N. Serrano

Special thanks to classmates for the case doctrines A. General Concepts

1. Basic Concepts of evidence, Rule 128 R128, Sec. 1. Evidence defined – Evidence is the means, sanctioned by these rules, of ascertaining in a judicial proceeding the truth respecting a matter of fact. R128, Sec. 2. Scope – The rules of evidence shall be the same in all courts and in all trials and hearings, except as otherwise provided by law or these rules. R128, Sec. 3. Admissibility of evidence – Evidence is admissible when it is relevant to the issue and is not excluded by law or these rules. R128, Sec 4. Relevancy; collateral matters – Evidence must have such a relation to the fact in issue as to induce belief in its existence or non-existence. Evidence on collateral matters shall not be allowed, except when it tends in any reasonable degree to establish probability or improbability of the fact in issue. a. what is evidence

i. question of law and fact CIR v. CA. The distinction between a question of law and a question of fact is clear-cut. It has been held that "[t]here is a question of law in a given case when the doubt or difference arises as to what the law is on a certain state of facts; there is a question of fact when the doubt or difference arises as to the truth or falsehood of alleged facts." In the present case, the CA did not doubt, much less change, the facts narrated by the CTA. It merely applied the law to the facts. That its interpretation or conclusion is different from that of the CTA is not irregular or abnormal Villanueva v. CA. Time and again it has been ruled that the jurisdiction of this Court in cases brought to it from the Court of Appeals is limited to the review and revision of errors of law allegedly committed by the appellate court, as its findings of fact are deemed conclusive. As such, this Court is not duty-bound to analyze and weigh all over again the evidence already considered in the proceedings below. The rule, however, admits of the following exceptions:

(1) when the inference made is manifestly mistaken, absurd or impossible; (2) when there is a grave abuse of discretion; (3) when the finding is grounded entirely on speculations, surmises or conjectures; (4) when the judgment of the Court of Appeals is based on misapprehension of facts; (5) when the findings are conflicting; (6) when the Court of Appeals, in making its findings, went beyond the issues of the case and the same is contrary to the admissions

of both appellant and appellee; (7) when the findings of the Court of Appeals are contrary to those of the trial court; (8) when the findings of fact are conclusions without citation of specific evidence on which they are based; (9) when the Court of Appeals manifestly overlooked certain relevant facts not disputed by the parties and which, if properly

considered, would justify a different conclusion; and (10) when the findings of fact of the Court of Appeals are premised on the absence of evidence and are contradicted by the evidence

on record. Cruz v. People. The rulings of the trial court on procedural questions and on admissibility of evidence during the course of a trial are interlocutory in nature and may not be the subject of a separate appeal or review on certiorari, but may be assigned as errors and reviewed in the appeal properly taken from the decision rendered by the trial court on the merits of the case. When the court has jurisdiction over the case and person of the accused, any error in the application of the law and the appreciation of evidence committed by a court after it has acquired jurisdiction over a case, may be corrected only by appeal.

ii. Concept of Proof factum probandum and factum probans Tantuico Jr. v. Republic. A complaint is defined as a concise statement of the ultimate facts constituting the plaintiff's cause or causes of action. Like all other pleadings allowed by the Rules of Court, the complaint shall contain in a methodical and logical form a plain, concise and direct statement of the ultimate facts on which the plaintiff relies for his claim, omitting the statement of mere evidentiary facts. Its office, purpose or function is to inform the defendant clearly and definitely of the claims made against him so that he may be prepared to meet the issues at the trial. The complaint should inform the defendant of all the material facts on which the plaintiff relies to support his demand; it should state the theory of a cause of action which forms the bases of the plaintiff's claim of liability. || The term "ultimate facts" as used in Sec. 3, Rule 3 of the Rules of Court, means the essential facts constituting the plaintiffs cause of action. A fact is essential if it cannot be stricken out without leaving the statement of the cause of action insufficient || Ultimate facts are important and substantial facts which either directly form the basis of the primary right and duty, or which directly make up the wrongful acts or omissions of the defendant. The term does not refer to the details of probative matter or particulars of evidence by which these material elements are to be established. It refers to principal, determinate, constitutive facts, upon the existence of which, the entire cause of action rests, while the term "evidentiary fact" has been defined in the following tenor: Those facts which are necessary for determination of the ultimate facts; they are the premises upon which conclusions of ultimate facts are Facts which furnish evidence of existence of some other fact. || Where the complaint states ultimate facts that constitute the three (3) essential elements of a cause of action, namely: (1) the legal right of the plaintiff, (2) the correlative obligation of the defendant, and (3) the act or omission of the defendant in violation of said legal right, the complaint states a cause of action, otherwise, the complaint must succumb to a motion to dismiss on that ground of failure to state a cause of action. However, where the allegations of the complaint are vague, indefinite, or in the form of conclusions, the proper recourse would be, not a motion to dismiss, but a motion for a bill of particulars. Far East Marble (Phils.) Inc. v. CA. Clearly then, the general allegation of BPI that "despite repeated requests and demands for payment, Far East has failed to pay" is sufficient to establish BPI's cause of action. Besides, prescription is not a cause of action; it is a defense which, having been raised, should, as correctly ruled by the Court of Appeals, be supported by competent evidence. Salita v. Magtolis. A complaint only needs to state the "ultimate facts constituting the plaintiff’s cause or causes of action." 9 Ultimate facts has been defined as "those facts which the expected evidence will support." As stated by private respondent, "[t]he term does not refer to the details of probative matter or particulars of evidence by which these material elements are to be established." It refers to "the facts which the evidence on the trial will prove, and not the evidence which will be required to prove the existence of those facts." And a motion for bill of particulars will not be granted if the complaint, while not very definite, nonetheless already states a sufficient cause of action.

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Special thanks to classmates for the case doctrines Balitaan v. CFI of Batangas. It is fundamental that every element of which the offense is composed must be alleged in the complaint or information. What facts and circumstances are necessary to be stated must be determined by reference to the definitions and the essentials of the specific crimes. Thus, in the case at bar, inasmuch as the crime of estafa through misappropriation or with grave abuse of confidence is charged, the information must contain these elements: (a) that personal property is received in trust, on commission, for administration or under any other circumstance involving the duty to make delivery of or to return the same, even though the obligation is guaranteed by a bond; (b) that there is conversion or diversion of such property by the person who has so received it; (c) that such conversion, diversion or denial is to the injury of another and (d) that there be demand for the return of the property. The main purpose of requiring the various elements of a crime to be set out in an information is to enable the accused to suitably prepare his defense. He is presumed to have no independent knowledge of the facts that constitute the offense. However, it is often difficult to say what is a matter of evidence, as distinguished from facts necessary to be stated in order to render the information sufficiently certain to Identify the offense. As a general rule, matters of evidence, as distinguished from facts essential to the description of the offense, need not be averred. For instance, it is not necessary to show on the face of an information for forgery in what manner a person is to be defrauded, as that is a matter of evidence at the trial. Moreover, reasonable certainty in the statement of the crime suffices. All that is required is that the charge be set forth with such particularity as will reasonably indicate the exact offense which the accused is alleged to have committed and will enable him intelligently to prepare his defense, and if found guilty to plead her conviction, in a subsequent prosecution for the same offense. || Applying these principles, We rule that the existence of the three checks need not be alleged in the Information. This is an evidentiary matter which is not required to be alleged therein. Paranaque Kings Enterprises, Inc. v. CA. In determining whether allegations of a complaint are sufficient to support a cause of action, it must be borne in mind that the complaint does not have to establish or allege facts proving the existence of a cause of action at the outset; this will have to be done at the trial on the merits of the case. To sustain a motion to dismiss for lack of cause of action, the complaint must show that the claim for relief does not exist, rather than that a claim has been defectively stated, or is ambiguous, indefinite or uncertain. Equally important, a defendant moving to dismiss a complaint on the ground of lack of cause of action is regarded as having hypothetically admitted all the averments thereof. De Gala v. De Gala. And, while it is true that such admission of the defendant's only legitimate son would not, of itself, be sufficient to entitle the plaintiff to a compulsory recognition by the defendant as his natural child, yet it should have been admitted in evidence as a factum probans, which would help to establish the factum probandum — the uninterrupted possession of the status of a natural child. Such status, of course, cannot be proved by a single specific act or conduct of the defendant or of his family. It must necessarily be proved by showing a series of acts, conduct, and circumstances indicative of the intention of the putative father to acknowledge his alleged natural child. Hence, to reject evidence of a single act, conduct, or circumstance as being insufficient to prove the status claimed, would be to prevent the claimant from proving it at all. || "It is a general rule of evidence that, all other things being equal, affirmative testimony is stronger than negative; in other words, that 'the testimony of a credible witness, that he saw or heard a particular thing at a particular time and place is more reliable than that of an equally credible witness who, with the same opportunities, testifies that he did not hear or see the same thing at the same time and place.'

iii. uses of evidence Republic v. Sandiganbayan. The resolution of controversies is, as everyone knows, the raison d'etre of courts. This essential function is accomplished by first, the ascertainment of all the material and relevant facts from the pleadings and from the evidence adduced by the parties, and second, after that determination of the facts has been completed, by the application of the law thereto to the end that the controversy may be settled authoritatively, definitely and finally. It is for this reason that a substantial part of the adjective law in this jurisdiction is occupied with assuring that all the facts are indeed presented to the Court; for obviously, to the extent that adjudication is made on the basis of incomplete facts, to that extent there is faultiness in the approximation of objective justice. It is thus the obligation of lawyers no less than of judges to see that this objective is attained; that is to say, that there no suppression, obscuration, misrepresentation or distortion of the facts; and that no party be unaware of any fact material a relevant to the action, or surprised by any factual detail suddenly brought to his attention during the trial. || The truth is that "evidentiary matters" may be inquired into and learned by the parties before the trial. Indeed, it is the purpose and policy of the law that the parties — before the trial if not indeed even before the pre-trial — should discover or inform themselves of all the facts relevant to the action, not only those known to them individually, but also those known to adversaries; in other words, the desideratum is that civil trials should not be carried on in the dark; and the Rules of Court make this ideal possible through the deposition-discovery mechanism set forth in Rules 24 to 29. The experience in other jurisdictions has been that ample discovery before trial, under proper regulation, accomplished one of the most necessary of modern procedure: it not only eliminates unessential issue from trials thereby shortening them considerably, but also requires parties to play the game with the cards on the table so that the possibility of fair settlement before trial is measurably increased. . ." Fortune Corporation v. CA. The promulgation of this group of rules satisfied the long-felt need for a legal machinery in the courts to supplement the pleadings, for the purpose of disclosing the real points of dispute between the parties and of affording an adequate factual basis in preparation for trial. The rules are not grounded on the supposition that the pleadings are the only or chief basis of preparation for trial. On the contrary, the limitations of the pleadings in this respect are recognized. In most cases under the rules the function of the pleadings extends hardly beyond notification to the opposing parties of the general nature of a party's claim or defense. It is recognized that pleadings have not been successful as fact-sifting mechanisms and that attempts to force them to serve that purpose have resulted only in making the pleadings increasingly complicated and technical, without any corresponding disclosure of the issues which it will be necessary to prove at the trial. Thus the rules provide for simplicity and brevity in pleadings, which in most cases will terminate with the answer; and at the same time adapt the old and familiar deposition procedure to serve as a device for ascertaining before trial what facts are really in dispute and need to be tried. Experience had shown that the most effective legal machinery for reducing and clarifying the issues was a preliminary examination, as broad in scope as the trial itself, of the evidence of both parties. Stated otherwise, the rules seek to make a trial less a game of blind man's buff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent.

b. admissibility and weight or credibility of evidence People v. Parungao. The general rule is that hearsay evidence is not admissible. However, the lack of objection to hearsay testimony may result in its being admitted as evidence. But one should not be misled into thinking that such declarations are thereby impressed with probative value. Admissibility of evidence should not be equated with weight of evidence. Hearsay evidence whether objected to or not cannot be given credence for it has no probative value.

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Special thanks to classmates for the case doctrines Prats and Co. v. Phoenix Insurance Co. In the course of long experience we have observed that justice is most effectivly and expenditiously administered in the courts where trivial objections to the admission of proof are received with least favor. The practice of excluding evidence on doubtful objection to its materiality or technical objection to the form of the questions should be avoided. In a case of any intricacy it is impossible for a judge of first instance, in the early stages of the development of the proof, to know with any certainty whether testimony is relevant or not; and where there is no indication of bad faith on the part of the attorney offering the evidence, the court may as a rule safely accept the testimony upon the statement of the attorney that the proof offered will be connected later. Moreover, it must be remembered that in the heat of the battle over which he presides a judge of first instance may possibly fall into error in judging of the relevancy of proof where a fair and logical connection is in fact shown. When such a mistake is made and the proof is erroneously ruled out, the Supreme Court, upon appeal, often finds itself embarrassed and possibly unable to correct the effects of error without returning the case for a new trial, -- a step which this court is always very loath to take. On the other hand, the admission of proof in a court of first instance, even if the question as to its form, materiality, or relevancy is doubtful, can never result in much harm to either litigant, because the trial judge is supposed to know the law; and it is its duty, upon final consideration of the case, to distinguish the relevant and material from the irrelevant and immaterial. If this course is followed and the cause is prosecuted to the Supreme Court upon appeal, this court then has all the material before it necessary to make a correct judgment. People v. Abalos. As a matter of general practice, it is deemed best to resolve doubts in favor of the admission of the contested evidence, without prejudice to such action as the court may deem fit to take in deciding the case on the merits.1 This practice has added importance as regards the evidence for the prosecution in criminal cases, for, once the accused has been acquitted, there is no means to secure a review by appeal, no matter how erroneous the action of the lower court may have been. Hence, We have been constrained to suspend the proceedings in the criminal action involved in the case at bar, to forestall a possible miscarriage of justice.

c. classification of evidence i. direct and circumstantial ii. corroborating and cumulative iii. sources of evidence

People v. Precioso. Once again, we reiterate that the trial courts assessment of the credibility of the witnesses' testimony is accorded great respect on appeal, and the records do not show that the court below disregarded any consideration which would warrant a departure from this jurisprudential dictum. Appellate courts will generally not disturb the factual findings of the trial court in the raison d'etre that the latter is in a better position to weigh conflicting testimonies, having heard the witnesses themselves and observed their deportment and manner of testifying, subject to exceptions which do not obtain in the present case.

2. what need not be proven, rule 129 R129, Sec. 1. Judicial notice, when mandatory – A court shall take judicial notice, without the introduction of evidence, of the existence and territorial extent of states, their political history, forms of government and symbols of nationality, the law of nations, the admiralty and maritime courts of the world and their seals, the political constitution and history of the Philippines, the official acts of the legislative, executive and judicial departments of the Philippines, the laws of nature, the measure of time, and the geographical divisions. R129, Sec. 2. Judicial notice, when discretionary – A court may take judicial notice of matters which are of public knowledge, or are capable of unquestionable demonstration, or ought to be known to judges because of their judicial functions. R129, Sec. 3. Judicial notice, when hearing necessary – During the trial, the court, on its own initiative or on request of a party, may announce its intention to take judicial notice of any matter and allow the parties to be heard thereon. After the trial, and before judgment or on appeal, the proper court, on its own initiative or on request of a party, may take judicial notice of any matter and allow the parties to be heard thereon if such matter is decisive of a material issue in the case. R129, Sec. 4. Judicial admissions – An admission, verbal or written, made by a party in the course of the proceedings in the same case, does not require proof. The admission may be contradicted only by showing that it was made through palpable mistake or that no such admission was made. a. judicial notice

Expertravel & Tours, Inc. v. CA. Generally speaking, matters of judicial notice have three material requisites: (1) the matter must be one of common and general knowledge; (2) it must be well and authoritatively settled and not doubtful or uncertain; and (3) it must be known to be within the limits of the jurisdiction of the court. The principal guide in determining what facts may be assumed to be judicially known is that of notoriety. Hence, it can be said that judicial notice is limited to facts evidenced by public records and facts of general notoriety.[15] Moreover, a judicially noticed fact must be one not subject to a reasonable dispute in that it is either: (1) generally known within the territorial jurisdiction of the trial court; or (2) capable of accurate and ready determination by resorting to sources whose accuracy cannot reasonably be questionable. || Things of "common knowledge," of which courts take judicial matters coming to the knowledge of men generally in the course of the ordinary experiences of life, or they may be matters which are generally accepted by mankind as true and are capable of ready and unquestioned demonstration. Thus, facts which are universally known, and which may be found in encyclopedias, dictionaries or other publications, are judicially noticed, provided, they are of such universal notoriety and so generally understood that they may be regarded as forming part of the common knowledge of every person. As the common knowledge of man ranges far and wide, a wide variety of particular facts have been judicially noticed as being matters of common knowledge. But a court cannot take judicial notice of any fact which, in part, is dependent on the existence or non-existence of a fact of which the court has no constructive knowledge. Estrada v Desierto. The court took cognizance of the publication of the Angara diary, even if it shouldn’t have been – hearsay. La Bugal Tribal Association v DENR. The facts that the court took judicial notice of were given cognizance even without the hearings as required by the Rules.

b. judicial admissions MAXICARE vs. Estrada. As provided for in Section 4 of Rule 129 of the Rules of Court, the general rule that a judicial admission is conclusive upon the party making it and does not require proof admits of two exceptions: 1) when it is shown that the admission was made through palpable mistake, and 2) when it is shown that no such admission was in fact made. The latter exception allows one to contradict an admission by denying that he made such an admission. [also when the admission is taken out of context] UFC v CA. As a remedy, the party who made the statement may either show that the statement was made through palpable mistake or amend the pleading. In case the party files an amended pleading, the original pleading is superseded and the statements made therein, though they may still be considered admissions, would no longer fall under the kind of admission that Sec 4, Rule 129 speaks of. Fabia v IAC. Admissions made by the parties in the pleadings, or in the course of the trial or proceedings do not require proof and cannot be contradicted unless previously shown to have been made through palpable mistake. || No such palpable mistake has been shown. Evidence

http://www.lawphil.net/judjuris/juri2005/may2005/gr_152392_2005.html#fnt15

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Special thanks to classmates for the case doctrines militates against the respondents' contention that the above description does not bind them. The description was merely copied from the deed of sale between the property's original owners and the petitioners when the self-same document was presented by the respondents as their own evidence, marked as Exhibit B, of the petitioner's Declaration of Property for Tax Purposes which contains the assessor's official finding and classification that the land covered by the declaration is residential. Granada v PNB. As a general rule, facts alleged in a party's pleading are deemed admissions of that party and binding upon it. However, that is not an absolute and inflexible rule. Every admission is to be taken as an entirety of the fact which makes for the one side with the qualifications which limit, modify or destroy its effect on the other side. The reason for this is that, where part of a statement of a party is used against him as an admission, the court should consider and weigh any other portions connected with the statement which tend to neutralize or explain the portion which is against interest. In other words, while the admission is admissible in evidence, its probative value is to be determined from the whole statement and others intimately related or connected therewith as an integrated unit for, as said by the Supreme Court, although acts or facts admitted do not require proof and cannot be contradicted, however, evidence aliunde can be presented to show that the admission was made through palpable mistake. Cunanan v Amparo. Soriano is bound by his own petition and by the court's adjudication of his claim made in consonance with his prayer. A party cannot trifle with a court's decision or order which he himself sought with full awareness of his rights under the premises, by taking it or leaving it at pleasure. The allegations, statements, or admissions contained in a pleading are conclusively as against the pleader. A party cannot subsequently take a position contradictory of, or inconsistent with, his pleadings. Specifically, he is not allowed to ask money back when the peso value is good, and later say he wants to keep the land when the peso's purchasing power is down. Joe’s Radio v Alto Enterprises. Evidence contrary to the admission in the pleadings, though they may be admitted, has no probative effect. Tec Bi v Chartered Bank. What can be judicially admitted are only facts and not conclusions of law. The truth of the allegation does not amount to an admission of impossible conclusion.

3. burden of proof and evidence 4. Concept of presumptions

a. presumptions of fact b. presumptions of law

i. conclusive presumptions ii. disputable presumptions

B. Admissibility

1. basic rules of admissibility a. relevance b. not prohibited by the law

2. concept of relevance and conditional admissibility Prats and Co. v. Phoenix Insurance Co. Courts must avoid giving credence to trivial objections to the admissibility of evidence and technical objections to questions. Leniency must be exercised and an assurance by the lawyer of the relevance of such evidence or question should be taken as being done in good faith. An erroneous inclusion is easier to remedy than an erroneous exclusion. The former can be done by the trial judge, who unlike a jury knows the law on the admissibility of evidence, or any appellate court. The latter requires a remand or new trial after appeal. People v. Abalos. As a matter of general practice, it is deemed best to resolve doubts in favor of the admission of the contested evidence, without prejudice to such action as the court may deem fit to take in deciding the case on the merits. This is especially important in criminal cases, where there is no appeal if the accused is acquitted.

3. Not prohibited by the rules, general presentation a. object evidence

i. concept ii. demonstrative evidence iii. presentation

b. documentary evidence i. best evidence rule ii. parole evidence rule iii. private and public iv. presentation

c. testimonial evidence i. qualifications ii. disqualifications iii. privileges iv. admissions and confessions v. res inter aliosacta rule vi. hearsay rule and its exceptions vii. opinion rule viii. character evidence rule ix. presentation

4. Some Considerations for Presentation of Evidence a. authentication (need for sponsor) b. chain of custody c. laying the basis

C. Object Evidence R130, Sec. 1. Object as evidence – Objects as evidence are those addressed to the senses of the court. When an object is relevant to the fact in issue, it may be exhibited to, examined or viewed by the court. Rule on DNA Evidence [AM No. 06-11-5-SC].

Sec. 1. Scope – This Rule shall apply whenever DNA Evidence, as defined in Section 3 hereof, is offered, used, or proposed to be offered or used as evidence in all criminal and civil actions as well as special proceedings.

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Special thanks to classmates for the case doctrines Sec. 2. Application of other Rules on Evidence – In all matters not specifically covered by this Rule, the Rules of Court and other pertinent provisions of law on evidence shall apply. Sec. 3. Definition of Terms – For purposes of this Rule, the following terms shall be defined as follows:

a. “Biological sample” means any organic material originating from a person’s body. Even if found in inanimate objects, that is susceptible to DNA testing. This includes blood, saliva and other body fluids, tissues, hairs and bones.

b. “DNA” means deoxyribonucleic acid, which is the chain of molecules found in every nucleated cell of the body. The totality of an individual’s DNA is unique for the individual, except identical twins.

c. “DNA evidence” constitutes the totality of the DNA profiles, results and other genetic information directly genersated from DNA testing of biological samples;

d. “DNA profile” means genetic information derived from DNA testing of a biological sample obtained from a person, which biological sample is clearly identifiable as originating from that person;

e. “DNA testing” means verified and credible scientific methods which include the extraction of DNA from biological samples, the generation of DNA profiles and the comparison of the information obtained from the DNA testing of biological samples for the purpose of determining with reasonable certainty, whether or not the DNA obtained from two or more distinct biological samples originated from the same person (direct identification) or if the biological samples originate from related persons (kinship analysis); and

f. “Probability of Parentage” means the numerical estimate for the likelihood of parentage of a putative parent compared with the probability of a random match of two unrelated individuals in a given population

Sec. 4. Application for DNA Testing Order – The appropriate court may, at any time, either motu proprio or on application of any person who has a legal interest in the matter in litigation, order a DNA testing,. Such order shall issue after due hearing and notice to the parties upon a showing of the following:

a. A biological sample exists that is relevant to the case; b. The biological sample:

(i) was not previously subjected to the type of DNA testing now required; or (ii) was previously subjected to DNA testing, but the results may require confirmation for good reasons;

c. the DNA testing uses a scientifically valid technique; d. the DNA testing has the scientific potential to produce new information that is relevant to the proper resolution of the case; and e. the existence of other factors, if any, which the court may consider as potentially affecting the accuracy of integrity of the DNA testing.

This Rule shall not preclude a DNA testing without need of a prior court order, at the behest of any party including law enforcement agencies, before a suit or proceeding is commenced. Sec. 5. DNA Testing Order – If the court finds that the requirements in Section 4 hereof have been complied with, the court shall –

a. Order, where appropriate, that biological samples be taken from any person or crime scene evidence; b. Impose reasonable conditions on DNA testing designed to protect the integrity of the biological sample, the testing process and the

reliability of the rest results, including the condition that the DNA test results shall be simultaneously disclosed to parties involved in the case; and

c. If the biological sample taken is of such an amount that prevents the conduct of confirmatory testing by the other or the adverse party and where additional biological samples of the same kind can no longer be obtained, issue an order requiring all parties to the case or proceedings to witness the DNA testing to be conducted.

An order granting the DNA testing shall be immediately executory and shall not be appealable. Any petition for certiorari initiated therefrom shall not, in any way, stay the implementation thereof, unless a higher court issues an injunctive order. The grant of DNA testing application shall not be construed as an automatic admission into evidence of any component of the DNA evidence that may be obtained as a result thereof. Sec. 6. Post-Conviction DNA Testing – Post-conviction DNA testing may be available without need of prior court order, to the prosecution or any person convicted by final and executory judgment provided that (a) a biological sample exists, (b) such sample is relevant to the case, and (c) the testing would probably result in the reversal or modification of the judgment of conviction. Sec. 7. Assessment of probative value of DNA evidence – In assessing the probative value of the DNA evidence presented, the court shall consider the following:

a. The chain of custody, including how the biological samples were collected, how they were handled, and the possibility of contamination of the samples;

b. The DNA testing methodology, including the procedure followed in analyzing the samples, the advantages and disadvantages of the procedure, and compliance with the scientifically valid standards in conducting the tests;

c. The forensic DNA laboratory, including accreditation by any reputable standards-setting institution and the qualification of the analyst who conducted the tests. If the laboratory is not accredited, the relevant experience of the laboratory in forensic casework and credibility shall be properly established; and

d. The reliability of the testing result, as hereinafter provided. The provisions of the Rules of Court concerning appreciation of evidence shall apply suppletorily.

Sec. 8. Relaibility of DNA Testing Methodology – In evaluating whether the DNA testing methodology is reliable, the court shall consider the following:

a. The falsifiability of the principles or methods used, that is, whether the theory or technique can be and has been tested; b. The subjection to peer review and publication of the principles or methods; c. The general acceptance of the principles or methods by the relevant scientific community; d. The existence and maintenance of standards and controls to ensure the correctness of data generated; e. The existence of an appropriate reference population database; and f. The general degree of confidence attributed to mathematical calculations used in comparing DNA profiles and the significance and

limitation of statistical calculations used in comparing DNA profiles. Sec. 9. Evaluation of DNA Testing Results – In evaluating the results of DNA testing, the court shall consider the following:

a. The evaluation of the weight of matching DNA evidence or the relevance of mismatching DNA evidence; b. The results of the DNA testing in the light of the totality of the other evidence presented in the case; and that c. DNA results that exclude the putative parent from paternity shall be conclusive proof of non-paternity. If the value of the Probability of

Paternity is 99.9% or higher there shall be a disputable presumption of paternity.

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Special thanks to classmates for the case doctrines Sec. 10. Post-Conviction DNA Testing – Remedy if the results are Favorable to the Convict – The convict or the prosecution may file a petition for a writ of habeas corpus in the court of origin if the results of the post-conviction DNA testing are favorable to the convict. In the case the court, after due hearing finds the petition to be meritorious, it shall reverse or modify the judgment of conviction and order the release of the convict, unless continued detention is justified for a lawful cause. A similar petition may be filed either in the Court of Appeals or the Supreme Court, or with any member of said courts, which may conduct a hearing thereon or remand the petition to the court of origin and issue the appropriate orders. Sec. 11. Confidentiality – DNA profiles and all results or other information obtained from DNA testing shall be confidential. Except upon order of the court, a DNA profile and all results or other information obtained from DNA testing shall only be released to any of the following, under such terms and conditions as may be set forth by the court:

a. Person from whom the sample was taken; b. Lawyers representing parties in the case or action where the DNA evidence is offered and presented or sought to be offered and presented; c. Lawyers of private complainants in a criminal action; d. Duly authorized law enforcement agencies; and e. Other persons as determined by the court

Whoever discloses, utilizes or publishes in any form any information concerning a DNA profile without the proper court order shall be liable for indirect contempt of the court wherein such DNA evidence was offered, presented or sought to be offered and presented.

Where the person from whom the biological sample was taken files a written verified request to the court that allowed the DNA testing for the disclosure of the DNA profile of the person and all results or other information obtained from the DNA testing, the same may be disclosed to the persons named in the written verified request. Sec. 12. Preservation of DNA Evidence – The trial court shall preserve the DNA evidence in its totality, including all biological samples, DNA profiles and results or other genetic information obtained from DNA testing. For this purpose, the court may order the appropriate government agency to preserve the DNA evidence as follows:

a. In criminal cases: i. For not less than the period of time that any person is under trial for an offense; or ii. In case the accused is serving sentence, until such time as the accused has served his sentence;

b. In all other cases, until such time as the decision in the case where the DNA evidence was introduced has become final and executory. The court may allow the physical destruction of a biological sample before the expiration of the periods set forth above, provided that:

a. A court order to that effect has been secured; or b. The person from whom the DNA sample was obtained has consented in writing to the disposal of the DNA evidence.

Sec. 13. Applicability to Pending Cases – Except as provided in Section 6 and 109 hereof, this Rule shall apply to cases pending at the time of its effectivity. Sec. 14. Effectivity – This Rule shall take effect on October 15, 2007, following publication in a newspaper of general circulation.

Rule on Electronic Evidence [AM No. 01-7-01-SC] Rule 1: Coverage

Sec. 1. Scope – Unless otherwise provided herein, these Rules shall apply whenever an electronic data message, as defined in Rule 2 hereof, is offered or used in evidence Sec. 2. Cases covered – These Rules shall apply to all civil actions and proceedings, as well as quasi-judicial and administrative cases. Sec. 3. Application of the other rules on evidence – In all matters not specifically covered by these Rules, the Rules of Court and pertinent provisions of statutes containing rules on evidence shall apply.

Rule 2: Definition of Terms and Construction Sec. 1. Definition of Terms – For purposes of these Rules, the following terms are defined, as follows: (a) Asymmetric or public cryptosystem” means a system capable of generating a secure key pair, consisting of a private key for creating a digital

signature, and a public key for verifying the digital signature. (b) “Business records” include records of any business, institution, association, profession, occupation, and calling of every kind, whether or not

conducted for profit, or for legitimate purposes. (c) “Certificate” means an electronic document issued to support a digital signature which purports to confirm the identity or other significant

characteristics of the person who holds a particular key pair. (d) “Computer” refers to any single or interconnected device or apparatus, which, by electronic, electro-mechanical or magnetic impulse, or by

other means with the same function, can receive, record, transmit, store, process, correlate, analyze, project, retrieve and/or produce information, data, text, graphics, figures, voice, video, symbols or other modes of expression or perform any one or more of these functions.

(e) “Digital Signature” refers to an electronic signature consisting of a transformation of an electronic document or an electronic data message using an asymmetric or public cryptosystem such that a person having the initial untransformed electronic document and the signer’s public key can accurately determine: (i) Whether the transformation was created using the private key that corresponds to the signer’s public key; and (ii) Whether the initial electronic document had been altered after the transformation was made.

(f) “Digitally signed” refers to an electronic document or electronic data message bearing a digital signature verified by the public key listed in a certificate.

(g) “Electronic data message” refers to information generated, sent, received or stored by electronic, optical or similar means. (h) “Electronic document” refers to information or the representation of information, data, figures, symbols or other modes of written expression,

described or however represented, by which a right is established or an obligation extinguished, or by which a fact may be proved and affirmed, which is received, recorded, transmitted, stored processed, retrieved or produced electronically. It includes digitally signed documents and any print-out or output, readable by sight or other means, which accurately reflects the electronic data message or electronic document. For purposes of these Rules, the term “electronic document” may be used interchangeably with “electronic data message.”

(i) “Electronic key” refers to a secret code which secures and defends sensitive information that crosses over public channels into a form decipherable only with a matching electronic key.

(j) “Electronic signature” refers to any distinctive mark, characteristics and/or sound in electronic form representing the identity of a person and attached to or logically associated with the electronic data message or electronic document or any methodology or procedure employed or adopted by a person and executed or adopted by such person with the intention of authenticating, signing or approving an electronic data message or electronic document. For purposes of these Rules, an electronic signature includes digital signatures.

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Special thanks to classmates for the case doctrines (k) “Ephemeral electronic communication” refers to telephone conversations, text messages, chatroom sessions, streaming audio, streaming

video, and other electronic forms of communication the evidence of which is not recorded or retained. (l) “Information and Communication System” refers to a system for generating, sending, receiving, storing or otherwise processing electronic

data messages or electronic documents and includes the computer system or other similar devices by or in which data are recorded or stored and any procedure related to the recording or storage of electronic data message or electronic document.

(m) “Key Pair” in an asymmetric cryptosystem refers to the private key and its mathematically related public key such that the latter can verify the digital signature that the former creates.

(n) “Private key” refers to the key of a key pair used to create a digital signature. (o) “Public key” refers to the key of a key pair used to create a digital signature. Sec. 2. Construction – These Rules shall be liberally construed to assist the parties in obtaining a just, expeditious, and inexpensive determination of cases. The interpretation of these Rules shall also take into consideration the international origin of RA 8792, otherwise known as the Electronic Commerce Act.

Rule 3: Electronic Documents Sec. 1. Electronic documents as functional equivalent of paper-based documents – Whenever a rule of evidence refers to the term of writing, document, record, instrument, memorandum or any other form of writing, such term shall be deemed to include an electronic document as defined in these Rules. Sec. 2. Admissibility – An electronic document is admissible in evidence if it complies with the rules on admissibility prescribed by the Rules of Court and related laws and is authenticated in the manner prescribed by these Rules. Sec. 3. Privileged communication – The confidential character of a privileged communications is not solely on the ground that it is in the form of an electronic document.

Rule 4: Best Evidence Rule Sec. 1. Original of an electronic document – An electronic document shall be regarded as the equivalent of an original document under the Best Evidence Rule if it is a print-out or output readable by sight or other means, shown to reflect the data accurately. Sec. 2. Copies as equivalent of the originals – When a document is in two or more copies executed at or about the same time with identical contents, or is a counterpart produced by the same impression as the original, or from the same matrix, or by mechanical or electronic re-recording, or by chemical reproduction or by other equivalent techniques which is accurately reproduces the original, such copies or duplicates shall be regarded as the equivalent of the original. Notwithstanding the foregoing, copies or duplicates shall not be admissible to the same extent as the original if:

(a) A genuine question is raised as to the authenticity of the original; or (b) In the circumstances it would be unjust or inequitable to admit a copy in lieu of the original.

Rule 5: Authentication of Electronic Documents Sec. 1. Burden of proving authenticity – The person seeking to introduce an electronic document in any legal proceeding has the burden of proving its authenticity in the manner provided in this Rule. Sec. 2. Manner of authentication – Before any private electronic document offered as authentic is received in evidence, its authenticity must be proved by any of the following means:

(a) By evidence that it had been digitally signed by the person purported to have signed the same; (b) By evidence that other appropriate security procedures or devices as may be authorized by the Supreme Court or by law for authentication

of electronic documents were applied to the document; or (c) By other evidence showing its integrity and reliability to the satisfaction of the judge.

Sec. 3. Proof of electronically notarized document – A document electronically notarized in accordance with the rules promulgated by the Supreme Court shall be considered as a public document and proved as a notarial document under the Rules of Court.

Rule 6: Electronic Signatures Sec. 1. Electronic signature – An electronic signature or a digital signature authenticated in the manner prescribed hereunder is admissible in evidence as the functional equivalent of the signature of a person on a written document. Sec. 2. Authentication of electronic signatures – An electronic signature may be authenticated in any of the following matter:

(a) By evidence that a method or process was utilized to establish a digital signature and verify the same; (b) By any other means provided by law; or (c) By any other means satisfactory to the judge as establishing the genuineness of the electronic signature.

Sec. 3. Disputable presumptions in relation to electronic signature – Upon the authentication of an electronic signature, it shall be presumed that: (a) The electronic signature is that of the person to whom it correlates; (b) The electronic signature was affixed by that person with the intention of authenticating or approving the electronic document to which it is

related or to indicate such person’s consent to the transaction embodied therein; and (c) The methods or processes utilized to affix or verify the electronic signature operated without error or fault.

Sec. 4. Disputable presumptions in relation to digital signatures – Upon the authentication of a digital signature, it shall be presumed, in addition to those mentioned in the immediately preceding section, that:

(a) The information contained in a certificate is correct; (b) The digital signature was created during the operational period of a certificate; (c) The message associated with a digital signature has not been altered from the time it was signed; and (d) A certificate had been issued by the certification authority indicated therein.

Rule 7: Evidentiary Weight of Electronic Documents Sec. 1. Factors for assessing evidentiary weight - In assessing the evidentiary weight of an electronic document, the following factors may be considered:

(a) The reliability of the manner or method in which it was generated, stored or communicated, including but not limited to input and output procedures, controls, tests and checks for accuracy and reliability of the electronic data message or document, in the light of all the circumstances as well as any relevant agreement;

(b) The reliability of the manner in which its originator was identified; (c) The integrity of the information and communication system in which it is recorded or stored, including but not limited to the hardware and

computer programs or software used as well as programming errors;

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Special thanks to classmates for the case doctrines (d) The familiarity of the witness or the person who made the entry with the communication and information system; (e) The nature and quality of the information which went into the communication and information system upon which the electronic data

message or electronic document was based; or (f) Other factors which the court may consider as affecting the accuracy or integrity of the electronic document or electronic data message.

Sec. 2. Integrity of an information and communication system. – In any dispute involving the integrity of the information and communication system in which an electronic document or electronic data message is recorded or stored, the court may consider, among others, the following factors:

(a) Whether the information and communication system or other similar device was operated in a manner that did not affect the integrity of the electronic document, and there are no other reasonable grounds to doubt the integrity of the information and communication system;

(b) Whether the electronic document was recorded or stored by a party to the proceedings with interest adverse to that of the party using it; or

(c) Whether the electronic document was recorded or stored in the usual and ordinary course of business by a person who is not a party to the proceedings and who did not act under the control of the party using it.

Rule 8: Business Records as Exception to the Hearsay Rule Sec. 1. Inapplicability of the hearsay rule. – A memorandum, report, record or data compilation of acts, events, conditions, opinions, or diagnoses, made by electronic, optical or other similar means at or near the time of or from transmission or supply of information by a person with knowledge thereof, and kept in the regular course or conduct of a business activity, and such was the regular practice ot make the memorandum, report, record, or data compilation by electronic, optical or similar means, all of which are shown by the testimony of the custodian or other qualified witnesses, is excepted from the rule or hearsay evidence. Sec. 2. Overcoming the presumption. – The presumption provided for in Section 1 of this Rule may be overcome by evidence of the untrustworthiness of the source of information or the method or circumstances of the preparation, transmission or storage thereof.

Rule 9: Method of proof Sec. 1. Affidavit of evidence. – All matters relating to the admissibility and evidentiary weight of an electronic document may be established by an affidavit stating facts of direct personal knowledge of the affiant or based on authentic records. The affidavit must affirmatively show the competence of the affiant to testify on the matters contained therein. Sec. 2. Cross-examination of deponent. – The affiant shall be made to affirm the contents of the affidavit in open court and may be cross-examined as a matter of right by the adverse party.

Rule 10: Examination of Witnesses Sec. 1. Electronic testimony. – After summarily hearing the parties pursuant to Rule 9 of these Rules, the court may authorize the presentation of testimonial evidence by electronic means. Before so authorizing, the court shall determine the necessity for such presentation and prescribe terms and conditions as may be necessary under the circumstance, including the protection of the rights of the parties and witnesses concerned. Sec. 2. Transcript of electronic testimony. – When examination of a witness is done electronically, the entire proceedings, including the questions and answers, shall be transcribed by a stenographer, stenotypes or other recorder authorized for the purpose, who shall certify as correct the transcript done by him. The transcript should reflect the fact that the proceedings, either in whole or in part, had been electronically recorded. Sec. 3. Storage of electronic evidence. – The electronic evidence and recording thereof as well as the stenographic notes shall form part of the record of the case. Such transcript and recording shall be deemed prima facie evidence of such proceedings.

Rule 11: Audio, Photographic, Video and Ephemeral Evidence Sec. 1. Audio, video and similar evidence. – Audio, photographic and video evidence of events, acts or transactions shall be admissible provided is shall be shown, presented or displayed to the court and shall be identified, explained or authenticated by the person who made the recording or by some other person competent to testify on the accuracy thereof. Sec. 2. Ephemeral electronic communication. – Ephemeral electronic communications shall be proven by the testimony of a person who was a party to the same or has personal knowledge thereof. In the absence or unavailability of such witnesses, other competent evidence may be admitted.

A recording of the telephone conversation or ephemeral electronic communication shall be covered by the immediately preceding section. If the foregoing communications are recorded or embodied in an electronic document, then the provisions of Rule 5 shall apply.

Rule 12: Effectivity Sec. 1. Applicability to pending case. – These Rules shall apply to cases pending after their effectivity. Sec. 2. Effectivity. – These Rules shall take effect on the first day of August 2001 following their publication before the 20th day of July 2001 in two newspapers of general circulation in the Philippines.

(when object evidence, when documentary evidence) Object as evidence People v Tacipit. In reviewing the evidence of this case, this Court was guided by the three(3) settled principles in reviewing rape cases, namely, (1) an accusation for rape can be made with facility; it is difficult to prove but more difficult for the person accused, though innocent, to disprove it; (2) in view of the intrinsic nature of the crime of rape where only two persons are usually involved, the testimony of the complainant must be scrutinized with extreme caution; (3) the evidence for the prosecution must stand or fall on its own merits, and cannot be allowed to draw strength from the weakness of the evidence for the defense. Villaflor v Summers. An ocular inspection of the body of the accused is permissible, but torture force must be avoided. The purpose of the provision is merely to prohibit compulsory testimonial self-incrimination. The right cannot be invoked in order to exclude object evidence. People v Jara. Circumstantial evidence, as a basis for conviction of crime, should be acted on and weighed with great caution, particularly where the crime is heinous and the penalty is death, as in the instant cases. In determining the sufficiency of circumstantial evidence to support a conviction, each case is to be determined on its own peculiar circumstances and all of the facts and circumstances are to be considered together as a whole, and, when so considered, may be sufficient to support a conviction, although one or more of the facts taken separately would not be sufficient for this purpose. No general rule has been formulated as to the quantity of circumstantial evidence which wig suffice for any case, but that matters not. For all that is required is that the circumstances proved must be consistent with each other, and at the same time inconsistent with the hypothesis that he is innocent and with every other rational hypothesis except that of guilt. People v Ruiz. Plea of self defense is unavailing in the light of the evidence presented. | Slug was found to have been fired from the unlicensed gun of Ruiz | Paraffin tests showed no nitrates on the hands of the deceased. | Paraffin tests indicated that the gun was fired at close range and with deliberate aim and with complete freedom since the shot was to the head and not to the body. | Taken together with the inconsistencies of the testimony of the accused, the court finds that the prosecution satisfactorily proved guilt of the accused.

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Special thanks to classmates for the case doctrines People v Bardaje. according to the medical findings, "no evidence of external injuries was found around the vulva or any part of the body" of Complainant, a fact which is strange, indeed, considering that Complainant was allegedly "dragged" slapped" into unconsciousness, "wrestled" with, and criminally abused. Physical evidence is of the highest order and speaks more eloquently than any witnesses put together. We are also faced with the medical finding of "old healed lacerations" in the hymen which, according to the testimony of the examining physician would have occurred two weeks or even one month before if said lacerations had been caused by sexual intercourse. Sison v People. The rule in this jurisdiction is that photographs, when presented in evidence must be identified by the photographer as to its production and testified as to the circumstances under which they were produced. The value of this kind of evidence lies in its being a correct representation or reproduction of the original and its admissibility is determined by its accuracy in portraying the scene at the time of the crime. The photographer is not the only witness who can identify the pictures he has taken. || The correctness of the photograph as a faithful representation of the objects portrayed can be proved prima facie, either by testimony of the person who made it or by other competent witnesses, after which the court can admit it subject to impeachment as to its accuracy. People v Vallejo. In assessing the probative value of DNA evidence, the courts should considerthe following data: how the samples were collected, how they were handled, the possibility of contamination of the samples, the procedure followed in analyzing the samples, whether the proper standards and procedures were followed in conducting the tests, and the qualification of the analyst who conducted the tests. Demonstrative Evidence People v Amestuzo. Demonstrative evidence is that which stands for the real thing, such as a map, diagram or photograph. This case is unclear as to what constitutes demonstrative evidence. Visiting the handicrafts factory where Bagas worked where he was identified by Ampatin may be treated as a view. People v Berame. The demonstrative evidence in this case were: (1) Testimony from one Carmencita Trinidad who, coming from the church, heard the shots after which she saw two persons running away from the house of the deceased, one of whom was slightly taller than she [verified when it was shown that Doming's height as compared to hers was precisely that]; (2) At about the same time, a certain Jorge Durano, whose house was located at the back of the hospital near the seashore and cemetery of Danao City, testified that he saw a person walking fast going towards a barrio in the north near the swampy area, his attention being called to such individual wearing rubber shoes [a rubber shoe left in a swampy area by someone leaving in a hurry the scene of the crime was recovered and just the right size and did fit appellant's right foot] People v Bulawin. Of course, alibi is known to be the weakest of all defenses. It is easy to concoct, difficult to disprove. 18 Nonetheless, where the evidence for the prosecution is weak and betrays lack of concreteness on the question of whether or not defendant is the author of the crime charged, alibi as a defense assumes importance. Not very long ago, this Court, speaking through Mr. Justice J.B.L. Reyes, in People vs. Fraga, L-12005, August 31, 1960, pointed out that "[t]he rule that alibi must be satisfactorily proven was never intended to change the burden of proof in criminal cases; otherwise, we will see the absurdity of an accused being put in a more difficult position here the prosecution's evidence is vague and weak than where it is strong." People v Delmendo. Natural reaction of (n) is to reveal it to authorities at earnest opportunity. Silence casts doubt on subsequent identification.

http://www.abanet.org/lpm/lpt/articles/tch06061.shtml http://www.seanet.com/~rod/digiphot.html http://chnm.gmu.edu/aq/photos/texts/60clj406.htm http://www.ojp.usdoj.gov/ovc/publications/bulletins/dna_4_2001/welcome.html

D. Documentary Evidence In general -- R130, Sec. 2. Documentary evidence – Documents as evidence consist of writings or any material containing letters, words, numbers, figures, symbols or other modes of written expression offered as proof of their contents. Best Evidence Rule In general, best evidence R130,Sec. 3. Original document must be produced; exceptions – When the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document itself, except in the following cases:

(a) When the original has been lost or destroy or cannot be produced in court, without bad faith on the part of the offeror; (b) When the original is in the custody or under the control of the party against whom the evidence is offered, and the latter fails to produce it after

reasonable notice; (c) When the original consist of numerous accounts or other documents which cannot be examined by the court without great loss of time and the

act sought to be established from them is only the general result of the whole; and (d) When the original is a public record in the custody of a public officer or is recorded in a public office.

Citibank, N.A. v. Sabeniano. In general, the best evidence rule requires that the highest available degree of proof must be produced. Accordingly, for documentary evidence, the contents of a document are best proven by the production of the document itself, to the exclusion of any secondary or substitutionary evidence. The best evidence rule applies only when the content of such document is the subject of the inquiry. Where the issue is only as to whether such document was actually executed, or exists, or on the circumstances relevant to or surrounding its execution, the best evidence rule does not apply and testimonial evidence is admissible. SC did not violate the best evidence rule when it considered and weighed as evidence the photocopies and microfilm copies of the PNs, MCs, and letters submitted by the petitioners to establish the existence of Sabeniano’s loans. The terms or contents of these documents were never the point of contention in the Petition at bar. Sabeniano questioned the documents as to their existence or execution, or when the former is admitted, as to the purpose for which the documents were executed, matters which are, undoubtedly, external to the documents, and which had nothing to do with the contents thereof. || The photocopy of the Declaration of Pledge submitted by Citibank before the RTC was undated. Sabeniano denied that it was her signature on the Declaration of Pledge. Sabeniano was able to secure a copy of the Declaration of Pledge, certified by an officer of Citibank-Geneva, which bore the date 24 September 1979. Sabeniano, however, presented her passport and plane tickets to prove that she was out of the country on the said date and could not have signed the pledge. She claimed that the signature was a forgery. When a document is assailed on the basis of forgery, the best evidence rule applies. As a rule, forgery cannot be presumed and must be proved by clear, positive and convincing evidence and the burden of proof lies on the party alleging forgery. The best evidence of a forged signature in an instrument is the instrument itself reflecting the alleged forged signature. The fact of forgery can only be established by a comparison between the alleged forged signature and the authentic and genuine signature of the person whose signature is theorized upon to have been forged. Citibank failed to comply with the production of the original Declaration of Pledge. NPC v Godilla. The record shows that the plaintiff has been given every opportunity to present the originals of the Xerox or photocopies of the documents it offered. It never produced the originals. The plaintiff attempted to justify the admission of the photocopies by contending that "the photocopies offered are equivalent to the original of the document" on the basis of the Electronic But, the Xerox copies do not constitute the electronic

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Special thanks to classmates for the case doctrines evidence defined in Section 1 of Rule 2 of the Rules on Electronic Evidence. || The information in those Xerox or photocopies was not received, recorded, retrieved or produced electronically. Moreover, such electronic evidence must be authenticated which the plaintiff failed to do. Finally, the required Affidavit to prove the admissibility and evidentiary weight of the alleged electronic evidence was not executed, much less presented in evidence. || The Xerox or photocopies offered should, therefore, be stricken off the record. Aside from their being not properly identified by any competent witness, the loss of the principals thereof was not established by any competent proof. Home Insurance Corporation v. CA. The subrogation receipt can only establish the relationship between Home Insurance and Nestle as well as the amount paid to settle the claim. The insurance contract would have clearly indicated the scope of the coverage but there is no evidence of this. It cannot simply be supposed that the hauling was included in the coverage; it is possible that the coverage ended with the arrastre. In other words, then rights transferred to Home by Nestle — still assuming there was a valid subrogation — might not include the right to sue Mabuhay. || The original contract of insurance have not been presented. It is curious that Home Insurance disregarded Rule130 Section 3 of the Rules of Court knowing that the best evidence of the insurance contract was its original copy, which was presumably in the possession of Home itself. Failure to present this original (or even a copy of it), for reasons the Court cannot comprehend, must prove fatal to this petition. Lim Tanhu v Ramolete. Under Article 55 of the Civil Code, the declaration of the contracting parties that they take each other as husband and wife "shall be set forth in an instrument" signed by the parties as well as by their witnesses and the person solemnizing the marriage. Accordingly, the primary evidence of a marriage must be an authentic copy of the marriage contract. While a marriage may also be proved by other competent evidence, the absence of the contract must first be satisfactorily explained. Surely, the certification of the person who allegedly solemnized a marriage is not admissible evidence of such marriage unless proof of loss of the contract or of any other satisfactory reason for its non-production is first presented to the court. In the case at bar, the purported certification issued by a Mons. Jose M. Recoleto, Bishop, Philippine Independent Church, Cebu City, is not, therefore, competent evidence, there being absolutely no showing as to unavailability of the marriage contract and, indeed, as to the authenticity of the signature of said certifier, the jurat allegedly signed by a second assistant provincial fiscal not being authorized by law, since it is not part of the functions of his office. Besides, inasmuch as the bishop did not testify, the same is hearsay. Air France v Carrascoso. Oral evidence cannot prevail over written evidence. And, written evidence may form part of res gestae. People v Tanjutco. It must be remembered that the prosecution had to prove the amount allegedly embezzled by the accused. This, the prosecution tried to do by establishing the amounts received by the accused-appellant and comparing it with those deposited in the bank; the resulting difference being treated as the amount abstracted from the funds of the complainant. The ledgers and bank statements naturally are not just secondary, but the primary evidence of the deposits made, while the monthly bank statements found in the files of complainant Roman Santos which were supposed to confirm the amounts he had ordered the accused-appellant to be deposited, are the best evidence of the amounts actually entrusted to the latter. Interpacific Transit Inc v Aviles. The airway bills should have been considered. In assessing this evidence, the lower courts confined themselves to the best evidence rule and the nature of the documents being presented, which they held did not come under any of the exceptions to the rule. There is no question that the photocopies were secondary evidence and as such were not admissible unless there was ample proof of the loss of the originals; and neither were the other exceptions allowed by the Rules applicable. However, there is also the rule that objection to documentary evidence must be made at the time it is formally offered as an exhibit and not before. Objection prior to that time is premature. || Objection to the documentary evidence must be made at the time it is formally offered, not earlier. The Identification of the document before it is marked as an exhibit does not constitute the formal offer of the document as evidence for the party presenting it. Objection to the Identification and marking of the document is not equivalent to objection to the document when it is formally offered in evidence. What really matters is the objection to the document at the time it is formally offered as an exhibit. || The rule is that evidence not objected to is deemed admitted and may be validly considered by the court in arriving at its judgment. This is true even if by its nature the evidence is inadmissible and would have surely been rejected if it had been challenged at the proper time. Concept of original document R130, Sec. 4. Original of a document –

(a) The original of a document is one the contents of which are the subject of inquiry (b) When a document is in two or more copies executed at or about the same time, with identical contents, all such copies are equally regarded as

originals. (c) When an entry is repeated in the regular course of business, one being copied from another at or near the time of the transaction, all the

entries are likewise equally regarded as originals. CompaniaMaritima v Limson. - TC correctly held defendant liable for said amount because the same (carbon copies of bills of lading & ships’ cargo manifests) actually represented freight charges based on the carbon originals of the ship's copy of the bills of lading where Limson appeared as consignee. || This only shows that the ship's cargo manifests or the ship's copy of the bills of lading can be accepted as evidence of shipments made by defendant since he was allowed to accept delivery of said shipments even without presented his copy of the bill of lading. Fiscal of Pampanga v Reyes. general rule is that a complaint or an information must set out the particular defamatory words as published. A mere statement of their substance is insufficient. EXCEPTION: Where the libel is published in an unofficial language. “It is proper, and in general, necessary, to set out the communication as it was originally made, with an exact translation into English…” In the case at bar, the article was printed in Pampango. Therefore, it falls under the exception and the insertion of the translation into Spanish in the Information is sufficient. ||| The general rules regarding admissibility apply to cases of libel and slander. The evidence must be relevant, and not hearsay. Therefore, the production of the best evidence, in the form of the newspaper where the article itself was published constitutes as the best evidence. People v Tan. “When carbon sheets inserted between 2 or more sheets of paper so that the writing and signature on the outside sheet produces 2 facsimile upon sheets beneath, such signature being reproduced by the same stroke of the pen which made the surface or exposed impression, all sheets so written on are regarded as duplicate originals and any of them may be introduced without accounting for the reproduction of the others.” || “Carbon copy confession possesses all the probative value of the original; it does not require accounting for non-production of the original.” Mahilum et al v. CA. With respect to the contention that the deed of sale should not have been admitted as evidence because it is only a copy and the non-production of the original has not been explained, it should be pointed out that said exhibit is itself a signed carbon copy or duplicate executed at the same time as the original. This is what is known as duplicate original, and it may be introduced in evidence without accounting for the non-production of the other copies Secondary Evidence R130, Sec. 5. When original document is unavailable – When the original document has been lost or destroyed, or cannot be produced in court, the offeror, upon proof of its execution or existence and the cause of its unavailability without bad faith on his part, may prove its contents by a copy, or by a recital of its contents in some authentic document, or by the testimony of witnesses in the order stated

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Special thanks to classmates for the case doctrines R130, Sec. 6. When original document is in adverse party’s custody or control – If the document is in the custody or under the control of the adverse party, he must have reasonable notice to produce it. If after such notice and after satisfactory proof of its existence, he fails to produce the document, secondary evidence may be presented in the case of its loss. R130, Sec. 7. Evidence admissible when original document is a public record – When the original of a document is in the custody of a public officer or is recorded in a public office, its contents may be proved by a certified copy issued by the public officer in custody thereof. Cf. R132, Sec. 24. Proof of official record – The record of public documents referred to in paragraph (a) of Section 19, when admissible for any purpose,

may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by his deputy, and accompanied, if the record is not kept in the Philippines, with a certificate that such officer has the custody. If the office in which the record is kept is in a foreign country, the certificate may be made by a secretary of the embassy or legation, consul-general, consul, vice-consul, or consular agent or by any officer in the foreign service of the Philippines stationed in the foreign country in which the record is kept, and authenticated by the seal of his office.

R132, Sec. 19 (a). Public documents are: the written official acts, or records of the official acts of the sovereign authority, official bodies and tribunals, and public officers, whether of the Philippines, or of a foreign country

R132, Sec. 25. What attestation of copy must state – Whenever a copy of a document or record is attested for the purpose of the evidence, the attestation must state, in substance, that the copy is a correct copy of the original, or a specific part thereof, as the case may be. The attestation must be under the official seal of the attesting officer, if there be any, or if he be the clerk of a court having such seal, under the seal of such court

Lazatin v Campos. According to the Court, petitioner’s proofs do not show or tend to show that at one time or another, a specific court of competent jurisdiction rendered in an adoption proceeding initiated by the late spouses an order approving his adoption as a child of the latter. In fact, the court where he alleged that an adoption proceeding was held notified the probate court that after due diligence, no such record (adoption proceeding) exists. The absence of such order of adoption by the court, as provided by a statute, cannot be substituted by parol evidence that a child has lived with a person, not his parent, and has been treated as a child to establish such adoption. Secondary evidence is nonetheless admissible where the records of adoption proceeding were actually lost or destroyed. However, the petitioner failed to establish the former existence of the adoption papers and its subsequent loss or destruction. This is indispensable. The correct order of proof must be followed: existence; execution; loss; and contents. Ong Ching Po v. CA. Ching Po was charged with “visiting and being in a house where opium was kept and used upon the person” and was acquitted on appeal by the CFI because he admitted in his testimony that he lived in said house as he was its lessee and the opium and pipe found inside it were his. He was then charged with and convicted of illegal possession of the opium and pipe. He now appeals the conviction to the Supreme Court on two grounds: 1) double jeopardy, and 2) inadmissibility of his testimony in the prior case. Relevant declarations made by a defendant or by a third party under his authority are admissible in a criminal case. This is based on the rule that no man would voluntarily declare anything against himself unless it were true. Besides, the right against self-incrimination may be waived, which is what Ching Po did in the first case. Finally, if a voluntary unsworn statement of a person charged with a crime is admissible against him then a statement made under oath should at least stand on the same footing. Michael and Co v Enriquez. The execution and delivery of the document may be established by the person or persons who executed it, by the person before whom its execution was acknowledge, or by any person who was present and saw it executed and delivered or who, after its execution and delivery, saw it and recognized the signatures; or by a person to whom the parties to the instrument had previously confessed the execution thereof. The destruction of the instrument may be proved by any person knowing the fact. The loss may be shown by any person who knew the fact of its loss, or by anyone who has made, in the judgment of the court, a sufficient examination in the place or places where the document or papers of similar character are usually kept by the person in whose custody the document lost was, and has been unable to find it; or who has make any other investigation which is sufficient to satisfy the court that the instrument is indeed lost. If it appears, on an attempt to prove the loss, that the document is in fact in existence, then the proof of the loss or destruction fails and secondary evidence is inadmissible unless section 322 of the Code of Civil Procedure should be applicable. After proper proof of the due execution and delivery of the instrument and its loss or destruction, oral evidence may be given of its contents by any person who signed the document, or who read it, or who heard it read knowing, or it being proved from the other sources, that the document so read was the one in question. Such evidence may also be given by any person who was present when the contents of the document were talked over between the parties thereto to such an extent as to give him reasonably full information as to its contents; or the contents may be proved by any person to whom the parties to the instrument have confessed or stated the contents thereof; or by a copy thereof; or by a recital of its contents in some authentic document. People v Lava. The handwriting of a person may be proved by any witness who believes it to be the handwriting of such person, and has seen the person write. Evidence respecting the handwriting may also be given by comparison, made by the witness or the court, with writings admitted or treated as genuine by the party against whom the evidence is offered, or proved to be genuine to the satisfaction of the judge. || We find that the reconstitution was made in accordance with the provisions of Act 3110, which provides for the procedure in the reconstitution of court records. Section 59 of said acts provides that destroyed documentary evidence shall be reconstituted by means of secondary evidence which maybe presented to any Justice of the Supreme Court or any other officer commissioned by the Court. Section 14 of the act provides that the destroyed or lost documentary evidence shall be replaced by secondary evidence. A photostatic copy of an original document is admissible as a secondary evidence of the contents of the original. Photostatic copies are faithful reproductions of the contents of the originals and they constitute evidence of a satisfactory nature. Villa Rey Transit v Ferrer. Section 5 of Rule 130 of the Rules of Court provides for the requisites for the admissibility of secondary evidence when the original is in the custody of the adverse party, thus: (1) opponent's possession of the original; (2) reasonable notice to opponent to produce the original; (3) satisfactory proof of its existence; and (4) failure or refusal of opponent to produce the original in court.11 Villarama has practically admitted the second and fourth requisites. As to the third, he admitted their previous existence in the files of the Corporation and also that he had seen some of them. Regarding the first element, Villarama's theory is that since even at the time of the issuance of the subpoena duces tecum, the originals were already missing, therefore, the Corporation was no longer in possession of the same. However, it is not necessary for a party seeking to introduce secondary evidence to show that the original is in the actual possession of his adversary. It is enough that the circumstances are such as to indicate that the writing is in his possession or under his control. Neither is it required that the party entitled to the custody of the instrument should, on being notified to produce it, admit having it in his possession. Hence, secondary evidence is admissible where he denies having it in his possession. Cia. Maritima v Allied Free Workers Union. The accountants’ reports are not admissible because the voluminous character of the records on which the accountants’ reports were based, and the difficulty attending their production, were not duly established. Also, the requisite- that the records should be made accessible to the adverse party to establish a basis for their cross examination- was not met by the Compania. In any case, a close scrutiny of the accountant’s reports reveal their lack of probative value ( biased, hearsay, mere summary) Effect of calling for a document R130, Sec. 8. Party who calls for document not bound to offer it – A party who calls for the production of a document and inspects the same is not obliged to offer it as evidence

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Special thanks to classmates for the case doctrines Parol Evidence Rule R130, Sec. 9. Evidence of written agreements – When the terms of an agreement have been reduced to writing, it is considered as containing all the terms agreed upon and there can be, between the parties and their successors in interest, no evidence of such terms other than the contents of the written agreement. However, a party may present evidence to modify, explain or add to the terms of the written agreement if he puts in issue in his pleading:

(a) An intrinsic ambiguity, mistake or imperfection in the written agreement; (b) The failure of the written agreement to express the true intent and agreement of the parties thereto; (c) The validity of the written agreement; or (d) The existence of other terms agreed to by the parties or their successors in interest after the execution of the written agreement.

The term “agreement” includes wills. Conde v CA. It is clear in the memo that Cordero acknowledged receipt of P165 and assumed the obligation to maintain the repurchase in peaceful possession. To uphold Cordero’s testimony that he signed the document merely to show that he had no objection to the repurchase is against the parol evidence rule. The purpose of the parol evidence rule is to give stability to written agreements and to remove the temptation and possibility of perjury. Ortanez v. CA. Inciong, Jr v CA. There is NO merit in petitioner's assertion that since the promissory note "is not a public deed with the formalities prescribed by law but . . . a mere commercial paper which does not bear the signature of . . . attesting witnesses," parol evidence may "overcome" the contents of the promissory note. Rule 130, sec. 9 does not specify that the written agreement be a public document. What is required is that the agreement be in writing founded on "long experience that written evidence is so much more certain and accurate than that which rests in fleeting memory only, that it would be unsafe, when parties have expressed the terms of their contract in writing, to admit weaker evidence to control and vary the stronger and to show that the parties intended a different contract from that expressed in the writing signed by them." || Thus, for the parol evidence rule to apply, a written contract need not be in any particular form, or be signed by both parties. As a general rule, bills, notes and other instruments of a similar nature are not subject to be varied or contradicted by parol or extrinsic evidence. Lucio Cruz v CA. Lechugas v CA. “the parol evidence rule does not apply, and may not properly be invoked by either party to the litigation against the other, where at least one of the parties to the suit is not party or a privy of a party to the written instrument in question and does not base a claim on the instrument or assert a right originating in the instrument or the relation established thereby.” Remolante v Tibe. Robles v Lizarraga. Lizarraga Hermanos reneges on the oral agreement and so Zacarias sues without alleging in his complaint that the written agreement (deed of sale) fails to express the true agreement between them. The Supreme Court said that putting that in issue in his pleading was unnecessary because proof of any collateral or parole agreement not inconsistent with the terms of the written agreement are admissible even if they relate to the same thing. When an accessory oral contract is complete in itself without the written agreement, then it isn’t covered by the parole evidence rule. Yacapin v Neri. All former contracts must be considered as merged in the contract, the fourth document, and the verbal agreement to execute the contract in favor of the spouses, which was part of that transaction. De la Rama v Ledesma. It is a well accepted principle of law that evidence of a prior or contemporaneous verbal agreement is generally not admissible to vary, contradict or defeat the operation of a valid instrument. || While parol evidence is admissible in a variety of ways to explain the meaning of written contracts, it cannot serve the purpose of incorporating into the contract additional contemporaneous conditions which are not mentioned at all in the writing, unless there has been fraud or mistake. Indeed, the exceptions to the rule do not apply in the instant case, there being no intrinsic ambiguity or fraud, mistake, or failure to express the true agreement of the parties. If indeed the alleged reservation had been intended, businessmen like the parties would have placed in writing such an important reservation. PNR v CFI. They cannot introduce parole evidence to prove the conditions because no exception was pleaded in the complaint. They merely alleged that the donation was subject to 5 conditions, without pleading that the deed did not express the true intent of the parties in order to support their allegation that the donation was conditional. Not having pleaded such exception, their parole evidence on the alleged conditions is dismissible upon seasonable objection interposed during the trial by PNR’s counsel. Ramirez v Orientalist Co and Fernandez. BPI v Fidelity and Surety Co. The amount of evidence necessary to sustain a prayer for relief where it is sought to impugn a fact in a document is always more than a mere preponderance of evidence. The bookkeeping entries of the bank cannot be considered as competent evidence against a stranger to the transaction. Jose Soriano v General de Tobacos. Julio v Dalandan. The Court said that the defendants argument overlooks the fact that no oral evidence is necessary. The express trust imposed upon defendants by their predecessor appears in the document itself. For, while it is true that said deed did not in definitive words institute defendants as trustees, a duty is therein imposed upon them — when the proper time comes — to turn over both the fruits and the possession of the property to Victoria Julio. What is important is whether the trustor manifested an intention to create the kind of relationship which in law is known as a trust. It is unimportant that the trustor should know that the relationship "which he intends to create is called a trust, and whether or not he knows the precise characteristics of the relationship which is called a trust." Here, that trust is effective as against defendants and in favor of the beneficiary thereof, plaintiff Victoria Julio, who accepted it in the document itself. Labasan v Lacuesta. General Rule: In the interpretation of a contract that if the terms thereof are clear and leave no doubt upon the intention of the contracting parties the literal meaning of the stipulation shall control. || Exception: When the words appear to be contrary to the evident intention of the parties, the intention shall prevail over the terms. Peabody v Broomfield. The rule that extrinsic evidence is not admissible to vary the terms of a written agreement has reference to the terms or obligations expressed in a contract the existence of which is proved or admitted. This rule does not prevent the introduction of extrinsic evidence to show that a supposed contract never became effective be reason of the failure of some collateral condition or stipulation prerequisite to liability. Land Settlement and Development Corporation v Garcia Plantation. The lower court should have admitted the parol evidence sought to be introduced to prove the failure of the document in question to express the true intent and agreement of the parties. It should not have improvidently and hastily excluded said parol evidence, knowing that the subject- matter treated therein, was one of the exceptions to the parol evidence rule. When the operation of the contract is made to depend upon the occurrence of an event, which, for that reason is a condition precedent, such may be established by parol evidence.|| Where the agreement extending time for payment of the defendants' accounts to a date subsequent to the filing of the action to recover

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Special thanks to classmates for the case doctrines the said indebtedness, made reference to a previous agreement, the trial court should have admitted evidence of surrounding circumstances to show that the supposed agreement to extend never became effective by reason of failure of some collateral condition. Market Developers Inc, v IAC. It was erroneous for the respondent courts to affirm that the original contract concluded on June 20, 1978, continued to regulate the relations of the parties. What it should have held instead was that the first written contract had been cancelled and replaced by the second verbal contract because of the change in the destination of the cargo. To hold that the old agreement was still valid and subsisting notwithstanding this substantial change was to impose upon the petitioner a condition he had not, and would not have, accepted under the new agreement. || The parol evidence rule is clearly inapplicable because that involves the verbal modification — usually not allowed — of a written agreement admittedly still valid and subsisting. In the case at bar, the first written agreement had not merely been modified but actually replaced by the second verbal agreement, which is perfectly valid even if not in writing like the first. Mactan Cebu International Airport Authority v CA. In the case at bench, the fact which private respondents seek to establish by parol evidence consists of the agreement or representation made by the NAC that induced Inez Ouano to execute the deed of sale; that the vendors and their heirs are given the right of repurchase should the government no longer need the property. Where a parol contemporaneous agreement was the moving cause of the written contract, or where the parol agreement forms part of the consideration of the written contract, and it appears that the written contract was executed on the faith of the parol contract or representation, such evidence is admissible. It is recognized that proof is admissible of any collateral parol agreement that is not inconsistent with the terms of the written contract though it may relate to the same subject matter. The rule excluding parol evidence to vary or contradict a writing does not extend so far as to preclude the admission of existing evidence to show prior or contemporaneous collateral parol agreements between the parties, but such evidence may be received, regardless of whether or not the written agreement contains any reference to such collateral agreement, and whether the action is at law or in equity. || More importantly, no objection was made by petitioner when private respondents introduced evidence to show the right of repurchase granted by the NAC to Inez Ouano. It has been repeatedly laid down as a rule of evidence that a protest or objection against the admission of any evidence must be made at the proper time, and if not so made, it will be understood to have been waived. Abrenica v Gonda. Protest or objection against the admission of any evidence must be made at the proper time, and that if not so made it will be understood to have been waived. The proper time to make a protest or objection is when, from the question addressed to the witness, or from the answer thereto, or from the presentation of the proof, the inadmissiblity of the evidence is, or may be, inferred. || The contract between Abrenica and Gonda was a verbal one and for the period of seven years. Such a contract could not be proven by trial, except by means of some written instrument in accordance with the provisions of subsections 1 and 5, section 335, of the Code of Civil Procedure.

E. Testimonial Evidence

Qualification and Competency R130, Sec. 20. Witnesses; their qualifications – Except as provided in the next succeeding section, all persons who can perceive, and perceiving, can make known their perception to others, may be witnesses. Religious or political belief, interest in the outcome of the case, or conviction of a crime unless otherwise provided by law, shall not be a ground for disqualification. Icutanim v Hernandez and Vinson. Carandag v Cabatuando. The law itself provides that a party or any other person interested in the outcome of a case may testify (Section 18, Rule 130, Rules of Court). The testimony of an interested witness, this Court has said, should not be rejected on the ground of bias alone, and must be judged on its own merits, and if such testimony is clear and convincing and not destroyed by other evidence on record, it may be believed. Neither can said testimony be said to be self-serving. This Court has said that self-serving evidence is an evidence made by a party out of court at one time; it does not include a party's testimony as a witness in court. Addenbrook v People. Disqualifications Mental incapacity and immaturity

R130, Sec. 21. Disqualification by reason of mental incapacity or immaturity – The following persons cannot be witnesses: (a) Those whose mental condition, at the time of their production for examination, is such that they are incapable of intelligently making known

their perception to others; (b) Children whose mental maturity is such as to render them incapable of perceiving the facts respecting which they are examined and of relating

them truthfully. Rule on Examination of Child Witness. Sec. 1. Applicability of the Rule.- Unless otherwise provided, this Rule shall govern the examination of child witnesses who are victims of crime, accused of a crime, and witnesses to crime. It shall apply in all criminal proceedings and non-criminal proceedings involving child witnesses. Sec. 2. Objectives.- The objectives of this Rule are to create and maintain an environment that will allow children to give reliable and complete evidence, minimize trauma to children, encourage children to testify in legal proceedings, and facilitate the ascertainment of truth. Sec. 3. Construction of the Rule - This Rule shall be liberally construed to uphold the best interests of the child and to promote maximum accommodation of child witnesses without prejudice to the constitutional rights of the accused. Sec. 4. Definitions. –

(a) A “child witness” is any person who at the time of giving testimony is below the age of eighteen (18) years. In child abuse cases, a child includes one over eighteen (18) years but is found by the court as unable to fully take care of himself or protect himself from abuse, neglect, cruelty, exploitation or discrimination because of a physical or mental disability or condition.

(b) “Child abuse” means physical, psychological or sexual abuse and criminal neglect as defined in Republic Act No. 7610 and other related laws.

(c) “Facilitator” means a person appointed by the court to pose questions to a child. (d) “Record regarding a child” or “record” means any photograph, videotape, audiotape, film, handwriting, typewriting, printing, electronic

recording, computer data or printout, or other memorialization, including any court document, pleading, or any copy or reproduction of any of the foregoing, that contains the name, description, address, school or any other personal identifying information about a child or his family and that is produced or maintained by a public agency, private agency or individual.

(e) A “guardian ad litem” is a person appointed by the court where the case is pending for a child who is a victim of, accused of, or a witness to a crime to protect the best interests of the said child.

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Special thanks to classmates for the case doctrines (f) A “support person” is a person chosen by the child to accompany him to testify at or attend a judicial proceeding or deposition to provide

emotional support for him. (g) “Best interests of the child” means the totality of the circumstances and conditions as are most congenial to the survival, protection, and

feelings of security of the child and most encouraging to his physical, psychological, and emotional development. It also means the least detrimental available alternative for safeguarding the growth and development of the child.

(h) “Developmental level” refers to the specific growth phase in which most individuals are expected to behave and function in relation to the advancement of their physical, socio-emotional, cognitive, and moral abilities.

(i) “In-depth investigative interview” or “disclosure interview” is an inquiry or proceeding conducted by duly trained members of a multi-disciplinary team or representatives of law enforcement or child protective services for the purpose of determining whether child abuse has been committed.

Sec. 5. Guardian ad litem. – (a) The court may appoint a guardian ad litem for a child who is a victim of, accused of, or a witness to a crime to promote the best interests of

the child. In making the appointment, the court shall consider the background of the guardian ad litem and his familiarity with the judicial process, social service programs, and child development, giving preference to the parents of the child, if qualified. The guardian ad litem may be a member of the Philippine Bar. A person who is a witness in any proceeding involving the child cannot be appointed as a guardian ad litem.

(b) The guardian ad litem: (1) shall attend all interviews, depositions, hearings, and trial proceedings in which a child participates; (2) shall make recommendations to the court concerning the welfare of the child; (3) shall have access to all reports, evaluations, and records necessary to effectively advocate for the child, except privileged

communications; (4) shall marshal and coordinate the delivery of resources and special services to the child; (5) shall explain, in language understandable to the child, all legal proceedings, including police investigations, in which the child is

involved; (6) shall assist the child and his family in coping with the emotional effects of crime and subsequent criminal or non-criminal proceedings

in which the child is involved; (7) may remain with the child while the child waits to testify; (8) may interview witnesses; and (9) may request additional examinations by medical or mental health professionals if there is a compelling need therefor.

(c) The guardian ad litem shall be notified of all proceedings but shall not participate in the trial. However, he may file motions pursuant to Sections 9, 10, 25, 26, 27 and 31(c). If the guardian ad litem is a lawyer, he may object during trial that questions asked of the child are not appropriate to his developmental level.

(d) The guardian ad litem may communicate concerns regarding the child to the court through an officer of the court designated for that purpose.

(e) The guardian ad litem shall not testify in any proceeding concerning any information, statement, or opinion received from the child in the course of serving as a guardian ad litem, unless the court finds it necessary to promote the best interests of the child.

(f) The guardian ad litem shall be presumed to have acted in good faith in compliance with his duties described in Sub-section (b). Sec. 6. Competency.- Every child is presumed qualified to be a witness. However, the court shall conduct a competency examination of a child, motu proprio or on motion of a party, when it finds that substantial doubt exists regarding the ability of the child to perceive, remember, communicate, distinguish truth from falsehood, or appreciate the duty to tell the truth in court.

(a) Proof of necessity.- A party seeking a competency examination must present proof of necessity of competency examination. The age of the child by itself is not a sufficient basis for a competency examination.

(b) Burden of proof.- To rebut the presumption of competence enjoyed by a child, the burden of proof lies on the party challenging his competence.

(c) Persons allowed at competency examination.- Only the following are allowed to attend a competency examination: (1) The judge and necessary court personnel; (2) The counsel for the parties; (3) The guardian ad litem; (4) One or more support persons for the child; and (5) The defendant, unless the court determines that competence can be fully evaluated in his absence.

(d) Conduct of examination. – Examination of a child as to his competence shall be conducted only by the judge. Counsel for the parties, however, can submit questions to the judge that he may, in his discretion, ask the child.

(e) Developmentally appropriate questions.- The questions asked at the competency examination shall be appropriate to the age and developmental level of the child; shall not be related to the issues at trial; and shall focus on the ability of the child to remember, communicate, distinguish between truth and falsehood, and appreciate the duty to testify truthfully.

(f) Continuing duty to assess competence.- The court has the duty of continuously assessing the competence of the child throughout his testimony.

Sec. 7. Oath or affirmation.- Before testifying, a child shall take an oath or affirmation to tell the truth. Sec. 8. Examination of a child witness.- The examination of a child witness presented in a hearing or any proceeding shall be done in open court. Unless the witness is incapacitated to speak, or the question calls for a different mode of answer, the answers of the witness shall be given orally.

The party who presents a child witness or the guardian ad litem of such child witness may, however, move the court to allow him to testify in the manner provided in this Rule. Sec. 9. Interpreter for child –

(a) When a child does not understand the English or Filipino language or is unable to communicate in said languages due to his developmental level, fear, shyness, disability, or other similar reason, an interpreter whom the child can understand and who understands the child may be appointed by the court, motu proprio or upon motion, to interpret for the child.

(b) If a witness or member of the family of the child is the only person who can serve as an interpreter for the child, he shall not be disqualified and may serve as the interpreter of the child. The interpreter, however, who is also a witness, shall testify ahead of the child.

(c) An interpreter shall take an oath or affirmation to make a true and accurate interpretation.

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Special thanks to classmates for the case doctrines Sec. 10. Facilitator to pose questions to child. –

(a) The court may, motu proprio or upon motion, appoint a facilitator if it determines that the child is unable to understand or respond to questions asked. The facilitator may be a child psychologist, psychiatrist, social worker, guidance counselor, teacher, religious leader, parent, or relative.

(b) If the court appoints a facilitator, the respective counsels for the parties shall pose questions to the child only through the facilitator. The questions shall either be in the words used by counsel or, if the child is not likely to understand the same, in words that are comprehensible to the child and which convey the meaning intended by counsel.

(c) The facilitator shall take an oath or affirmation to pose questions to the child according to the meaning intended by counsel. Sec. 11. Support persons. – (a) A child testifying at a judicial proceeding or making a deposition shall have the right to be accompanied by one or two persons of his own

choosing to provide him emotional support. (1) Both support persons shall remain within the view of the child during his testimony. (2) One of the support persons may accompany the child to the witness stand, provided the support person does not completely obscure the

child from the view of the opposing party, judge, or hearing officer. (3) The court may allow the support person to hold the hand of the child or take other appropriate steps to provide emotional support to the

child in the course of the proceedings. (4) The court shall instruct the support persons not to prompt, sway, or influence the child during his testimony.

(b) If the support person chosen by the child is also a witness, the court may disapprove the choice if it is sufficiently established that the attendance of the support person during the testimony of the child would pose a substantial risk of influencing or affecting the content of the testimony of the child.

(c) If the support person who is also a witness is allowed by the court, his testimony shall be presented ahead of the testimony of the child. Sec. 12. Waiting area for child witnesses.- The courts are encouraged to provide a waiting area for children that is separate from waiting areas used by other persons. The waiting area for children should be furnished so as to make a child comfortable. Sec. 13. Courtroom environment.- To create a more comfortable environment for the child, the court may, in its discretion, direct and supervise the location, movement and deportment of all persons in the courtroom including the parties, their counsel, child, witnesses, support persons, guardian ad litem, facilitator, and court personnel. The child may be allowed to testify from a place other than the witness chair. The witness chair or other place from which the child testifies may be turned to facilitate his testimony but the opposing party and his counsel must have a frontal or profile view of the child during the testimony of the child. The witness chair or other place from which the child testifies may also be rearranged to allow the child to see the opposing party and his counsel, if he chooses to look at them, without turning his body or leaving the witness stand. The judge need not wear his judicial robe.

Nothing in this section or any other provision of law, except official in-court identification provisions, shall be construed to require a child to look at the accused.

Accommodations for the child under this section need not be supported by a finding of trauma to the child. Sec. 14. Testimony during appropriate hours.- The court may order that the testimony of the child should be taken during a time of day when the child is well-rested. Sec. 15. Recess during testimony.- The child may be allowed reasonable periods of relief while undergoing direct, cross, re-direct, and re-cross examinations as often as necessary depending on his developmental level. Sec. 16. Testimonial aids.- The court shall permit a child to use dolls, anatomically-correct dolls, puppets, drawings, mannequins, or any other appropriate demonstrative device to assist him in his testimony. Sec. 17. Emotional security item.- While testifying, a child shall be allowed to have an item of his own choosing such as a blanket, toy, or doll. Sec. 18. Approaching the witness.- The court may prohibit a counsel from approaching a child if it appears that the child is fearful of or intimidated by the counsel. Sec. 19. Mode of questioning.- The court shall exercise control over the questioning of children so as to (1) facilitate the ascertainment of the truth; (2) ensure that questions are stated in a form appropriate to the developmental level of the child; (3) protect children from harassment or undue embarrassment; and (4) avoid waste of time.

The court may allow the child witness to testify in a narrative form. Sec. 20. Leading questions.- The court may allow leading questions in all stages of examination of a child if the same will further the interests of justice. Sec. 21. Objections to questions.- Objections to questions should be couched in a manner so as not to mislead, confuse, frighten, or intimidate the child. Sec. 22. Corroboration.- Corroboration shall not be required of a testimony of a child. His testimony, if credible by itself, shall be sufficient to support a finding of fact, conclusion, or judgment subject to the standard of proof required in criminal and non-criminal cases. Sec. 23. Excluding the public.- When a child testifies, the court may order the exclusion from the courtroom of all persons, including members of the press, who do not have a direct interest in the case. Such an order may be made to protect the right to privacy of the child or if the court determines on the record that requiring the child to testify in open court would cause psychological harm to him, hinder the ascertainment of truth, or result in his inability to effectively communicate due to embarrassment, fear, or timidity. In making its order, the court shall consider the developmental level of the child, the nature of the crime, the nature of his testimony regarding the crime, his relationship to the accused and to persons attending the trial, his desires, and the interests of his parents or legal guardian. The court may, motu proprio, exclude the public from the courtroom if the evidence to be produced during trial is of such character as to be offensive to decency or public morals. The court may also, on motion of the accused, exclude the public from trial, except court personnel and the counsel of the parties. Sec. 24. Persons prohibited from entering and leaving courtroom.- The court may order that persons attending the trial shall not enter or leave the courtroom during the testimony of the child. Sec. 25. Live-link television testimony in criminal cases where the child is a victim or a witness. (a) The prosecutor, counsel or the guardian ad litem may apply for an order that the testimony of the child be taken in a room outside the

courtroom and be televised to the courtroom by live-link television. Before the guardian ad litem applies for an order under this section, he shall consult the prosecutor or counsel and shall defer to the

judgment of the prosecutor or counsel regarding the necessity of applying for an order. In case the guardian ad litem is convinced that the decision of the prosecutor or counsel not to apply will cause the child serious emotional trauma, he himself may apply for the order.

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Special thanks to classmates for the case doctrines The person seeking such an order shall apply at least five (5) days before the trial date, unless the court finds on the record that the need

for such an order was not reasonably foreseeable. (b) The court may motu proprio hear and determine, with notice to the parties, the need for taking the testimony of the child through live-link

television. (c) The judge may question the child in chambers, or in some comfortable place other than the courtroom, in the presence of the support person,

guardian ad litem, prosecutor, and counsel for the parties. The questions of the judge shall not be related to the issues at trial but to the feelings of the child about testifying in the courtroom.

(d) The judge may exclude any person, including the accused, whose presence or conduct causes fear to the child. (e) The court shall issue an order granting or denying the use of live-link television and stating the reasons therefor. It shall consider the

following factors: (1) The age and level of development of the child; (2) His physical and mental health, including any mental or physical disability; (3) Any physical, emotional, or psychological injury experienced by him; (4) The nature of the alleged abuse; (5) Any threats against the child; (6) His relationship with the accused or adverse party; (7) His reaction to any prior encounters with the accused in court or elsewhere; (8) His reaction prior to trial when the topic of testifying was discussed with him by parents or professionals; (9) Specific symptoms of stress exhibited by the child in the days prior to testifying; (10) Testimony of expert or lay witnesses; (11) The custodial situation of the child and the attitude of the members of his family regarding the events about which he will testify; and (12) Other relevant factors, such as court atmosphere and formalities of court procedure.

(f) The court may order that the testimony of the child be taken by live-link television if there is a substantial likelihood that the child would suffer trauma from testifying in the presence of the accused, his counsel or the prosecutor as the case may be. The trauma must be of a kind which would impair the completeness or truthfulness of the testimony of the child.

(g) If the court orders the taking of testimony by live-link television: (1) The child shall testify in a room separate from the courtroom in the presence of the guardian ad litem; one or both of his support

persons; the facilitator and interpreter, if any; a court officer appointed by the court; persons necessary to operate the closed-circuit television equipment; and other persons whose presence are determined by the court to be necessary to the welfare and well-being of the child;

(2) The judge, prosecutor, accused, and counsel for the parties shall be in the courtroom. The testimony of the child shall be transmitted by live-link television into the courtroom for viewing and hearing by the judge, prosecutor, counsel for the parties, accused, victim, and the public unless excluded.

(3) If it is necessary for the child to identify the accused at trial, the court may allow the child to enter the courtroom for the limited purpose of identifying the accused, or the court may allow the child to identify the accused by observing the image of the latter on a television monitor.

(4) The court may set other conditions and limitations on the taking of the testimony that it finds just and appropriate, taking into consideration the best interests of the child.

(h) The testimony of the child shall be preserved on videotape, digital disc, or other similar devices which shall be made part of the court record and shall be subject to a protective order as provided in Section 31(b).

Sec. 26. Screens, one-way mirrors, and other devices to shield child from accused. – (a) The prosecutor or the guardian ad litem may apply for an order that the chair of the child or that a screen or other device be placed in the

courtroom in such a manner that the child cannot see the accused while testifying. Before the guardian ad litem applies for an order under this Section, he shall consult with the prosecutor or counsel subject to the second and third paragraphs of Section 25(a) of this Rule. The court shall issue an order stating the reasons and describing the approved courtroom arrangement.

(b) If the court grants an application to shield the child from the accused while testifying in the courtroom, the courtroom shall be arranged to enable the accused to view the child.

Sec. 27. Videotaped deposition. – (a) The prosecutor, counsel, or guardian ad litem may apply for an order that a deposition be taken of the testimony of the child and that it be

recorded and preserved on videotape. Before the guardian ad litem applies for an order under this Section, he shall consult with the prosecutor or counsel subject to the second and third paragraphs of Section 25(a).

(b) If the court finds that the child will not be able to testify in open court at trial, it shall issue an order that the deposition of the child be taken and preserved by videotape.

(c) The judge shall preside at the videotaped deposition of a child. Objections to deposition testimony or evidence, or parts thereof, and the grounds for the objection shall be stated and shall be ruled upon at the time of the taking of the deposition. The other persons who may be permitted to be present at the proceeding are: (1) The prosecutor; (2) The defense counsel; (3) The guardian ad litem; (4) The accused, subject to sub-section (e); (5) Other persons whose presence is determined by the court to be necessary to the welfare and well-being of the child; (6) One or both of his support persons, the facilitator and interpreter, if any; (7) The court stenographer; and (8) Persons necessary to operate the videotape equipment.

(d) The rights of the accused during trial, especially the right to counsel and to confront and cross-examine the child, shall not be violated during the deposition.

(e) If the order of the court is based on evidence that the child is unable to testify in the physical presence of the accused, the court may direct the latter to be excluded from the room in which the deposition is conducted. In case of exclusion of the accused, the court shall order that the

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Special thanks to classmates for the case doctrines testimony of the child be taken by live-link television in accordance with Section 25 of this Rule. If the accused is excluded from the deposition, it is not necessary that the child be able to view an image of the accused.

(f) The videotaped deposition shall be preserved and stenographically recorded. The videotape and the stenographic notes shall be transmitted to the clerk of the court where the case is pending for safekeeping and shall be made a part of the record.

(g) The court may set other conditions on the taking of the deposition that it finds just and appropriate, taking into consideration the best interests of the child, the constitutional rights of the accused, and other relevant factors.

(h) The videotaped deposition and stenographic notes shall be subject to a protective order as provided in Section 31(b). (i) If, at the time of trial, the court finds that the child is unable to testify for a reason stated in Section 25(f) of this Rule, or is unavailable for any

reason described in Section 4(c), Rule 23 of the 1997 Rules of Civil Procedure, the court may admit into evidence the videotaped deposition of the child in lieu of his testimony at the trial. The court shall issue an order stating the reasons therefor.

(j) After the original videotaping but before or during trial, any party may file any motion for additional videotaping on the ground of newly discovered evidence. The court may order an additional videotaped deposition to receive the newly discovered evidence.

Sec. 28. Hearsay exception in child abuse cases.- A statement made by a child describing any act or attempted act of child abuse, not otherwise admissible under the hearsay rule, may be admitted in evidence in any criminal or non-criminal proceeding subject to the following rules: (a) Before such hearsay statement may be admitted, its proponent shall make known to the adverse party the intention to offer such statement

and its particulars to provide him a fair opportunity to object. If the child is available, the court shall, upon motion of the adverse party, require the child to be present at the presentation of the hearsay statement for cross-examination by the adverse party. When the child is unavailable, the fact of such circumstance must be proved by the proponent.

(b) In ruling on the admissibility of such hearsay statement, the court shall consider the time, content and circumstances thereof which provide sufficient indicia of reliability. It shall consider the following factors: (1) Whether there is a motive to lie; (2) The general character of the declarant child; (3) Whether more than one person heard the statement; (4) Whether the statement was spontaneous; (5) The timing of the statement and the relationship between the declarant child and witness; (6) Cross-examination could not show the lack of knowledge of the declarant child; (7) The possibility of faulty recollection of the declarant child is remote; and (8) The circumstances surrounding the statement are such that there is no reason to suppose the declarant child misrepresented the

involvement of the accused. (c) The child witness shall be considered unavailable under the following situations:

(1) Is deceased, suffers from physical infirmity, lack of memory, mental illness, or will be exposed to severe psychological injury; or (2) Is absent from the hearing and the proponent of his statement has been unable to procure his attendance by process or other reasonable

means. (d) When the child witness is unavailable, his hearsay testimony shall be admitted only if corroborated by other admissible evidence. Sec. 29. - Admissibility of videotaped and audiotaped in-depth investigative or disclosure interviews in child abuse cases.— The court may admit videotape and audiotape in-depth investigative or disclosure interviews as evidence, under the following conditions: (a) The child witness is unable to testify in court on grounds and under conditions established under Section 28 (c). (b) The interview of the child was conducted by duly trained members of a multidisciplinary team or representatives of law enforcement or child

protective services in situations where child abuse is suspected so as to determine whether child abuse occurred. (c) The party offering the videotape or audiotape must prove that:

(1) the videotape or audiotape discloses the identity of all individuals present and at all times includes their images and voices; (2) the statement was not made in response to questioning calculated to lead the child to make a particular statement or is clearly shown to

be the statement of the child and not the product of improper suggestion; (3) the videotape and audiotape machine or device was capable of recording testimony; (4) the person operating the device was competent to operate it; (5) the videotape or audiotape is authentic and correct; and (6) it has been duly preserved. The individual conducting the interview of the child shall be available at trial for examination by any party. Before the videotape or audiotape

is offered in evidence, all parties shall be afforded an opportunity to view or listen to it and shall be furnished a copy of a written transcript of the proceedings.

The fact that an investigative interview is not videotaped or audiotaped as required by this Section shall not by itself constitute a basis to exclude from evidence out-of-court statements or testimony of the child. It may, however, be considered in determining the reliability of the statements of the child describing abuse. Sec. 30. Sexual abuse shield rule.— (a) Inadmissible evidence.- The following evidence is not admissible in any criminal proceeding involving alleged child sexual abuse:

(1) Evidence offered to prove that the alleged victim engaged in other sexual behavior; and (2) Evidence offered to prove the sexual predisposition of the alleged victim.

(b) Exception.- Evidence of specific instances of sexual behavior by the alleged victim to prove that a person other than the accused was the source of semen, injury, or other physical evidence shall be admissible.

A party intending to offer such evidence must: (1) File a written motion at least fifteen (15) days before trial, specifically describing the evidence and stating the purpose for which it is

offered, unless the court, for good cause, requires a different time for filing or permits filing during trial; and (2) Serve the motion on all parties and the guardian ad litem at least three (3) days before the hearing of the motion. Before admitting such evidence, the court must conduct a hearing in chambers and afford the child, his guardian ad litem, the parties, and

their counsel a right to attend and be heard. The motion and the record of the hearing must be sealed and remain under seal and protected by a protective order set forth in Section 31(b). The child shall not be required to testify at the hearing in chambers except with his consent.

Sec. 31. Protection of privacy and safety. – (a) Confidentiality of records.- Any record regarding a child shall be confidential and kept under seal. Except upon written request and order of

the court, a record shall only be released to the following:

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Special thanks to classmates for the case doctrines (1) Members of the court staff for administrative use; (2) The prosecuting attorney; (3) Defense counsel; (4) The guardian ad litem; (5) Agents of investigating law enforcement agencies; and (6) Other persons as determined by the court.

(b) Protective order.- Any videotape or audiotape of a child that is part of the court record shall be under a protective order that provides as follows: (1) Tapes may be viewed only by parties, their counsel, their expert witness, and the guardian ad litem. (2) No tape, or any portion thereof, shall be divulged by any person mentioned in Sub-section (a) to any other person, except as necessary

for the trial. (3) No person shall be granted access to the tape, its transcription or any part thereof unless he signs a written affirmation that he has

received and read a copy of the protective order; that he submits to the jurisdiction of the court with respect to the protective order; and that in case of violation thereof, he will be subject to the contempt power of the court.

(4) Each of the tape cassettes and transcripts thereof made available to the parties, their counsel, and respective agents shall bear the following cautionary notice:

“This object or document and the contents thereof are subject to a protective order issued by the court in (case title), (case number). They shall not be examined, inspected, read, viewed, or copied by any person, or disclosed to any person, except as provided in the protective order. No additional copies of the tape or any of its portion shall be made, given, sold, or shown to any person without prior court order. Any person violating such protective order is subject to the contempt power of the court and other penalties prescribed by law.”

(5) No tape shall be given, loaned, sold, or shown to any person except as ordered by the court. (6) Within thirty (30) days from receipt, all copies of the tape and any transcripts thereof shall be returned to the clerk of court for

safekeeping unless the period is extended by the court on motion of a party. (7) This protective order shall remain in full force and effect until further order of the court.

(c) Additional protective orders.- The court may, motu proprio or on motion of any party, the child, his parents, legal guardian, or the guardian ad litem, issue additional orders to protect the privacy of the child.

(d) Publication of identity contemptuous.- Whoever publishes or causes to be published in any format the name, address, telephone number, school, or other identifying information of a child who is or is alleged to be a victim or accused of a crime or a witness thereof, or an immediate family of the child shall be liable to the contempt power of the court.

(e) Physical safety of child; exclusion of evidence.- A child has a right at any court proceeding not to testify regarding personal identifying information, including his name, address, telephone number, school, and other information that could endanger his physical safety or his family. The court may, however, require the child to testify regarding personal identifying information in the interest of justice.

(f) Destruction of videotapes and audiotapes.- Any videotape or audiotape of a child produced under the provisions of this Rule or otherwise made part of the court record shall be destroyed after five (5) years have elapsed from the date of entry of judgment.

(g) Records of youthful offender.- Where a youthful offender has been charged before any city or provincial prosecutor or before any municipal judge and the charges have been ordered dropped, all the records of the case shall be considered as privileged and may not be disclosed directly or indirectly to anyone for any purpose whatsoever. Where a youthful offender has been charged and the court acquits him, or dismisses the case or commits him to an institution and

subsequently releases him pursuant to Chapter 3 of P. D. No. 603, all the records of his case shall also be considered as privileged and may not be disclosed directly or indirectly to anyone except to determine if a defendant may have his sentence suspended under Article 192 of P. D. No. 603 or if he may be granted probation under the provisions of P. D. No. 968 or to enforce his civil liability, if said liability has been imposed in the criminal action. The youthful offender concerned shall not be held under any provision of law to be guilty of perjury or of concealment or misrepresentation by reason of his failure to acknowledge the case or recite any fact related thereto in response to any inquiry made to him for any purpose.

“Records” within the meaning of this Sub-section shall include those which may be in the files of the National Bureau of Investigation and with any police department or government agency which may have been involved in the case. (Art. 200, P. D. No. 603) Sec. 32. Applicability of ordinary rules.- The provisions of the Rules of Court on deposition, conditional examination of witnesses, and evidence shall be applied in a suppletory character. Sec. 33. Effectivity.- This Rule shall take effect on December 15, 2000 following its publication in two (2) newspapers of general circulation. People v Esponola. Appellants assail the testimony of Gonzales on the ground of his alleged mental incapacity. Section 20 of Rule 130 provides that "except as provided in the next succeeding section, all persons who can perceive, and perceiving, can make known their perception to others, may be witnesses." Section 21, inter alia, disqualifies as witnesses, "those whose mental condition, at the time of their production for examination, is such that they are incapable of intelligently making known their perception to others." A mental retardate is not therefore, per se, disqualified from being a witness. As long as his senses can perceive facts and if he can convey his perceptions in court, he can be a witness. In the case at bar, we find that Gonzales had a tendency to be repetitious and at times had to be asked leading questions, but he was not unintelligible to be beyond understanding. He was clear and unyielding in identifying the appellants as the perpetrators of the crime. On the whole, his account of the crime was coherent enough to shed light on the guilt or innocence of the accused. To be sure, modern rules on evidence have downgraded mental incapacity as a ground to disqualify a witness. 37 As observed by McCormick, the remedy of excluding such a witness who may be the only person available who knows the facts, seems inept and primitive. 38 Our rules follow the modern trend of evidence. People v Hayag. Deaf and dumb persons are not incompetent as witnesses merely because they are deaf and dumb if they are able to communicate the facts by a method which their infirmity leaves available to them, and are of sufficient mental capacity to observe the matters as to which they will testify and to appreciate the obligation of an oath; but where the person is not so educated as it is possible to make him understand the questions which are put to him he is not competent. || The method to be employed in eliciting the testimony of a deaf-mute should be that which is best suited to attain the desired end, the particular method of examination resting largely in the discretion of the trial court. People v Sueta. When an alleged victim of rape says that she has been violated, she says in effect all that is necessary to show that rape has been inflicted on her and so long as her testimony meets the test of credibility, the accused may be convicted on the basis thereof. People v Pedrosa. The star witnesses for the prosecution in this case are children of tender years. And from the mouths of the children we get the truth. An intelligent boy is undoubtedly the best observer to be found. The world begins to take him by storm with its thousand matters of interest; what the school and his daily life furnish cannot satisfy his overflowing and generous heart. He lays hold of everything new, striking,

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Special thanks to classmates for the case doctrines strange; all his senses are on the stretch to assimilate it as far as possible. No one notices a change in the house, no one discovers the bird's nest, no one observes anything out of the way in the fields; but nothing of that sort escapes the boy; everything which emerges above the monotonous level of daily life gives him a good opportunity for exercising his wits, for extending his knowledge, and for attracting the attention of his elders, to whom he communicates his discoveries. The spirit of the youth not having as yet been led astray by the necessities of life, its storms and battles, its factions and quarrels, he can freely abandon himself to everything which appears out of the way; his life has not yet been disturbed by education, though he often observes more clearly and accurately than any adult. Besides, he has already got some principles; lying is distasteful to him, because he thinks it mean; he is no stranger to the sentiment of self-respect, and he never loses an opportunity of being right in what he affirms. Thus he is, as a rule, but little influenced by the suggestions of others, and he describes objects and occurrences as he has really seen them. We say again that an intelligent boy is as a rule the best witness in the world || Truly, children of sound mind are likely to be more observant of incidents which take place within their view than older persons, so their testimony is likely to be more correct and truthful than that of older persons, and where once established that they have fully understood the nature and character of an oath, as in this case before us, their testimony should be given full faith and credence People v Mendoza. It is clear that any child, regardless of age, can be a competent witness if he can perceive. || Wigmore: no rule defines any particular age as conclusive of incapacity; Underhill: it may not be said that there is any particular age at which as a matter of law all children are competent or incompetent. || The requirements of a child’s competency as witness: Capacity of observation, Capacity of recollection, Capacity of communication || A close and careful examination of Paul Michael’s testimony shows that he could be deemed a child of above average intelligence. His initial hesitance to name his father as the person who committed the crime was sufficiently explained by the trial court, seeing as the court had the opportunity to observe the child.

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Special thanks to classmates for the case doctrines Marital disqualification

R130, Sec. 22. Disqualification by reason of marriage – During the marriage, neither the husband nor the wife may testify for or against the other without the consent of the affected spouse, except in a civil case by one against the other, or in a criminall case fo a crime committed by one against the other or the latter’s direct descendants or ascendants - differentiate from relative incompetencies US v Concepcion. The rule prohibits one spouse from giving testimony against the other without the latter’s consent, unless in a civil case between the spouses, or a criminal case whereby one committed a crime against the other. Without consent, the testimony is inadmissible. || Common law rule adopted by U.S. The rule is based upon considerations of public policy growing out of the marital relation. To allow one to testify for or against the other would be to subject him or her to great temptation to commit perjury and to endanger the harmony and confidence of the marital relation. Lezama v Rodriguez. People v Castaneda. WHEN AN OFFENSE DIRECTLY ATTACKS, OR DIRECTLY AND VITALLY IMPAIRS, THE CONJUGAL RELATION, IT COMES WITHIN THE EXCEPTION to the statute that one shall not be a witness against the other except in a criminal prosecution for a crime committed by one against the other (Cargill v. State). In this case, said criminal act positively undermined the connubial relationship. Taken collectively, the actuations of the witness-wife underscore the fact that the martial and domestic relations between her and the accused-husband have become so strained that there is no more harmony to be preserved said nor peace and tranquility which may be disturbed. The security and confidence of private life which the law aims at protecting will be nothing but Ideals which, through their absence, merely leave a void in the unhappy home.

Relative Incompetencies Dead man’s statute R130, Sec.23. Disqualification by reason of death or insanity of adverse party – Parties or assignors of parties to a case, or persons in whose behalf a case is prosecuted, against an executor or administrator or other representative of a deceased person, or against a person of unsound mind, upon a claim or demand against the estate of such deceased person or against such person of unsound mind, cannot testify as to any matter of fact occurring vefore the death of such deceased person or before such person became of unsound mind. Guerrero v St. Claire’s Realty. Goni v. CA. Razon v IAC. The reason for the rule is that if persons having a claim against the estate of the deceased or his properties were allowed to testify as to the supposed statements made by him (deceased person), many would be tempted to falsely impute statements to deceased persons as the latter can no longer deny or refute them, thus unjustly subjecting their properties or rights to false or unscrupulous claims or demands. The purpose of the law is to "guard against the temptation to give false testimony in regard to the transaction in question on the part of the surviving party." || Delimitation. The rule, however, delimits the prohibition it contemplates in that it is applicable to a case against the administrator or its representative of an estate upon a claim against the estate of the deceased person. Privilege Communications R130, Sec. 24. Disqualification by reason of privileged communication – The following persons cannot testify as to matters learned in confidence in the following cases: (a) The husband or the wife, during or after the marriage, cannot be examined, without the consent of the other as to any communication received

in confidence by one from the other during the marriage except in a civil case by one against the other, or in a criminal case for a crime committed by one against the other or the latter’s direct descendants or ascendants;

(b) An attorney cannot, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of, or with a view to, professional employment, nor can an attorney’s secretary, stenographer, or clerk be examined, without the consent of the client and his employer, concerning any fact the knowledge of which has been acquired in such capacity;

(c) A person authorized to practice medicine, surgery, or obstetrics cannot in a civil case, without the consent of the patient, be examined as to an advice or treatment given by him or any information which he may have acquired in attending such patient in a professional capacity, which information was necessary to enable him to act in that capacity, and which would blacken the reputation of the patient;

(d) A minister or priest, cannot, without the consent of the person making the confession, be examined as to any confession made to or any advice given by him in his professional character in the course of discipline enjoined by the church to which the minister or priest belongs;

(e) A public officer cannot be examined during his term of office or afterwards, as to communications made to him in official confidence, when the court finds that the public interest would suffer by the disclosure.

U.S. v Antipolo. The use of the word "afterwards" in the phrase "during the marriage or afterwards" was intended to cover cases in which a marriage has been dissolved otherwise than by death of one of the spouses — as, for instance, by decree of annulment or divorce. || The declarations of a deceased person while in anticipation of certain impending death, concerning the circumstances leading up to the death, are admissible in a prosecution of the person charged with killing the declarant. Such dying declarations are admissible in favor of the defendant as well as against him. (It has been expressly held in several jurisdictions in the United States that the widow of the deceased may testify regarding his dying declarations. Krohn v. CA. Requisites in order that the privilege may be successfully invoked: (a) the privilege is claimed in a civil case; (b) the person against whom the privilege is claimed is one duly authorized to practice medicine, surgery or obstetrics; (c) such person acquired the information while he was attending to the patient in his professional capacity; (d) the information was necessary to enable him to act in that capacity; and, (e) the information was confidential and, if disclosed, would blacken the reputation (formerly character) of the patient. || In the instant case, the person against whom the privilege is claimed is not one duly authorized to practice medicine, surgery or obstetrics. He is simply the patient's husband who wishes to testify on a document executed by medical practitioners. Plainly and clearly, this does not fall within the claimed prohibition. Regala v Sandiganbayan. The general rule that a lawyer may not invoke the privilege and refuse to divulge the name or identity of his client is qualified by some important exceptions – when disclosure of the client’s name would (1) implicate that client in the very activity for which he sought the lawyer's advice, or (2) open the client to civil liability, or (3) furnish the only link that would form the chain of testimony necessary to convict an individual of a crime. [The case at bar falls under exceptions (1) and (3)] People v Sandiganbayan. Lim v CA. Since the object of the privilege is to protect the patient, it may be waived if no timely objection is made to the physician's testimony. In order that the privilege may be successfully claimed, the following requisites must concur: (1) the privilege is claimed in a civil case; (2) the person against whom the privilege is claimed is one duly authorized to practice medicine, surgery or obstetrics; (3) such person acquired the information

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Special thanks to classmates for the case doctrines while he was attending to the patient in his professional capacity; (4) the information was necessary to enable him to act in that capacity; and (5) the information was confidential, and, if disclosed, would blacken the reputation (formerly character) of the patient." || The physician may be considered to be acting in his professional capacity when he attends to the patient for curative, preventive, or palliative treatment. Thus, only disclosures which would have been made to the physician to enable him "safely and efficaciously to treat his patient" are covered by the privilege. || It is to be emphasized that "it is the tenor only of the communication that is privileged. The mere fact of making a communication, as well as the date of a consultation and the number of consultations, are therefore not privileged from disclosure, so long as the subject communicated is not stated." Neri v Senate. Executive privilege is the right of the President and high-level executive branch officials to withhold information from Congress, the courts and the public. It is a privilege of confidentiality which applies to certain types of information of a sensitive character that would be against the public interest to disclose. Executive privilege is based on the constitution because it relates to the President’s effective discharge of executive powers. Its ultimate end is to promote public interest and no other. It is not absolute. Any claim of executive privilege must be weighed against other interests recognized by the constitution, like the state policy of full public disclosure of all transactions involving public interest, the right of the people to information on matters of public concern, the accountability of public officers, the power of legislative inquiry, and the judicial power to secure evidence in deciding cases. Banco Filipino v Monetary Board. In the case at bar, the respondents have not established that public interest would suffer by the disclosure of the papers and documents sought by petitioner. Considering that petitioner bank was already closed as of January 25, 1985, any disclosure of the aforementioned letters, reports, and transcripts at this time pose no danger or peril to our economy. Neither will it trigger any bank run nor compromise state secrets. Respondent's reason for their resistance to the order of production are tenuous and specious. If the respondents public officials acted rightfully and prudently in the performance of their duties, there should be nothing at all that would provoke fear of disclosure. On the contrary, public interests will be best served by the disclosure of the documents. Not only the banks and its employees but also its numerous depositors and creditors are entitled to be informed as to whether or not there was a valid and legal justification for the petitioner's bank closure. It will be well to consider that— Public interest means more than a mere curiosity; it means something in which the public, the community at large, has some pecuniary interest by which their legal rights or liabilities are affected People v Capulong. We give credence to the narration of the incident by the three officers of the team because they are law enforcers and are, therefore, presumed to have regularly performed their duty in the absence of proof to the contrary || The testimony of the CANU officers are given credence because the record does not show that these officers who were responsible for the appellant's entrapment were motivated by any improper motives other than to accomplish their mission. RA 53, as amended by RA 1477, Sec. 1. Without prejudice to his liability under the civil and criminal laws, the publisher, editor, columnist or duly accredited reporter of any newspaper, magazine or periodical of general circulation cannot be compelled to reveal the source of any news-report or information appearing in said publication which was related in confidence to such publisher, editor or reporter unless the court or a House or committee of Congress finds that such revelation is demanded by the security of the State. FC, 215. No descendant shall be compelled, in a criminal case, to testify against his parents and grandparents, except when such testimony is indispensable in a crime against the descendant or by one parent against the other. RPC, 229. Revelation of secrets by an officer. — Any public officer who shall reveal any secret known to him by reason of his official capacity, or shall wrongfully deliver papers or copies of papers of which he may have charge and which should not be published, shall suffer the penalties of prision correccional in its medium and maximum periods, perpetual special disqualification and a fine not exceeding 2,000 pesos if the revelation of such secrets or the delivery of such papers shall have caused serious damage to the public interest; otherwise, the penalties of prision correccional in its minimum period, temporary special disqualification and a fine not exceeding 50 pesos shall be imposed. RPC, 230. Public officer revealing secrets of private individual. — Any public officer to whom the secrets of any private individual shall become known by reason of his office who shall reveal such secrets, shall suffer the penalties of arresto mayor and a fine not exceeding 1,000 pesos. Testimonial Privilege R130, Sec. 25. Parental and filial privilege – No person may be compelled to testify against his parents, other direct ascendatsm children or other direct descendants. Admissions and Confessions Admission against interests

R130, Sec. 26. Admissions of a party – The act, declaration or omission of a party as to a relevant fact may be given in evidence against him. Purpose of rule

US v Ching Po. With reference to the admissibility of the admissions and declarations of a defendant charged with a crime, the rule seems to be that the declarations made by a defendant or by a third party, by his authority, if relevant, are admissible against him. If the defendant has made the statements constituting an admission of the facts charged in the complaint they are admissible against him. The foregoing rule is based upon the presumption that no man would declare anything against himself, unless such declarations were true. A man's acts, conduct, and declarations, whereever made, provided they be voluntary, a readmissible against him, for the reason that it is fair to presume that they correspond with the truth, and it is his fault if they do not. Juan Ysmael and Co v Hasim. In offering in evidence the testimony given by Mr. Hemady and the Hashims in the earlier case, the defendant did not claim that said testimony contained admissions against interest by the parties to the action or their agents; if such had been the case, the testimony would have been admissible without the laying of a foundation and without the witnesses having testified in the case at bar. But the purpose of the offer of the testimony was evidently to impeach the testimony of the same witnesses in the present case and if so, a foundation should have been laid by calling the attention of the witnesses to the former statements so as to give them opportunity to explain before the statements were offered in evidence.

Admission and confession differentiated Cf. R130. Sec.26., supra. R130, Sec. 33. Confession – The declaration of an accused acknowledging his guilt of the offense charged, or any offense necessarily included therein, may be given in evidence against him. See also 1986 Consti, article III. People v Lorenzo. In a confession, there is an acknowledgment of guilt. Admission is usually applied in criminal cases to statements of fact by the accused which do not directly involve an acknowledgment of guilt of the accused or of the criminal intent to commit the offense with which he is charged. Wharton defines confession as follows: A confession is an acknowledgment in express terms, by a party in a criminal case,

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Special thanks to classmates for the case doctrines of his guilt of the crime charged, while an admission is a statement by the accused, direct or implied, of facts pertinent to the issue, and tending, in connection with proof of other facts, to prove his guilt. In other words, an admission is something less than a confession, and is but an acknowledgment of some fact or circumstance which in itself is insufficient to authorize a conviction, and which tends only to establish the ultimate fact of guilt. CMS Logging v CA. There is no evidence which established the fact that Shinko received US $77k as commission arising from the sale of CMS’s logs to various Japanese firms. It is a rule that "a statement is not competent as an admission where it does not, under a reasonable construction, appear to admit or acknowledge the fact which is sought to be proved by it". An admission or declaration to be competent must have been expressed in definite, certain and unequivocal language. People v Molleda. People v Ayson. - distinguished from declaration against interest

R130 Sec. 38. Declaration against interest – The declaration made by a person deceased, or unable to testify, against the interest of the declarant, if the fact asserted in the declaration was at the time it was made so far contrary to declarant’s own interest, that a reasonable man in his position would not have made the declaration unless he believed it to be true, may be received in evidence against himself or his successors in interest and against third persons.

Concept of self serving evidence NDC v Workmen’s Compensation. The right of a party to be present and give evidence as provided in section 49 would be meaningless if it did not include the right to testify in his own behalf. Indeed, the Rules of Court enjoins that "neither parties nor other, persons interested in the outcome of a case shall be excluded." For while a party's interest may to some extent affect his credibility, his interest alone is not a ground for disregarding his testimony. The argument that the testimony of an interested party is self-serving and therefore is inadmissible in evidence misses the essential nature of self-serving evidence and the ground for its exclusion. Self-serving evidence is evidence made by a party out of court at one time; it does not include a party's testimony as a witness in court. It is excluded on the same ground as any hearsay evidence, that is the lack of opportunity for cross-examination by the adverse party, and on the consideration that its admission would open the door to fraud and to fabrication of testimony. On the other hand, a party's testimony in court is sworn and affords the other party the opportunity for cross-examination. Exceptions - “Testimonial rehabilitation” - Multiple admissibility

Admission by conduct People v Sope and Cruz. It has been duly established that the offended party was asked by Attorney Resurreccion on behalf of Tomas Dimalanta, one of the accused, to drop the case upon the refund of the amount of P200 which the three accused had apparently conspired to get from her by means of threats and intimidation. The Court agreed with the Solicitor General that the repeated offer of one conspirator constitutes a strong indication and AN IMPLIED ADMISSION OF GUILT of said conspirator and the two accused and appellants in this case. || The alleged contradictions, unreasonableness and inconsistencies in the testimony of the principal witness for the prosecution are not serious enough to effect the credibility of said witness nor to merit serious consideration. People v Ocampo. The delay of four (4) days from the time she witnessed the rape-killing of her sister up to the time she confided to her mother and uncle, Federico Danganan, the identity of the malefactor, does not impair her credibility. Delay or vacillation in making a criminal accusation does not impair the credibility of the witness, if such delay in satisfactorily explained. Mary Jane categorically testified that she did not immediately name Ocampo as the author of the crime because "because I was afraid that he might do something to me, sir." || There can be no dispute to the legal proposition that flight from the scene of the felony is one of the indicia of a guilty conscience. However, it is equally true that in exceptional cases, culprits have become bolder by returning to their prey to ensure that the victim was successfully eliminated under the pretext of feigning innocence. The fact that this form of reverse psychology does not happen as often as flight does not mean that it can never take place.

Admission by declaration Sison v Ambalada. Even though there was no marriage contract that can be found in the archives of the church, they are still considered married. The legal presumption of marriage was not rebutted by contrary evidence, and the lack of record of an act or fact doesn’t per se disprove the existence of such act or fact. Julian presented himself as a widower when he tried to get married again and stated that he was married when he sought title to the land that Father Gabino apparently gave him as a donation (also no contract on this one). Furthermore, Father Gabino couldn’t have falsely attested in the baptismal certificates that Julian’s children with Modesta were legitimate if they weren’t. Witnesses also testified to the daybreak wedding that was made between Julian and Modesta, a tradition that is common in their town. People v Yatco.

Admission by Silence (qui tacet consenter evidetur) R130, Sec. 32. Admission by silence – An act or declaration made in the presence and within the hearing or observation of a party who does or says nothing when the act or declaration is such as naturally to call for action or comment if not true, and when proper and possible for him to do so, may be given in evidence against him. People v Paragsa. (requisites) The rule allowing silence of a person to be taken as an implied admission of the truth of the statements uttered in his presence is applicable in criminal cases. But before the silence of a party can be taken as an admission of what is said, it must appear: (1) that he heard and understood the statement; (2) that he was at liberty to interpose a denial; (3) that the statement was in respect to some matter affecting his rights or in which he was then interested, and calling, naturally, for an answer; (4) that the facts were within his knowledge; and (5) that the fact admitted or the inference to be drawn from his silence would be material to the issue (IV Francisco, The Revised Rules of Court in the Philippines, 1973 ed., p. 316). These requisites of admission by silence all obtain in the present case. Hence, the silence of Mirasol on the facts asserted by the accused and his witnesses may be safely construed as an admission of the truth of such assertion.

Compromises R130, Sec. 27. Offer of compromise not admissible – In civil cases, an offer of compromise is not an admission of any liability, and is not admissible in evidence against the offeror. In criminal cases, except those involving quasi-offenses (criminal negligence) or those allowed by law to be compromised, an offer of compromise by the accused may be received in evidence as an implied admission of guilt

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Special thanks to classmates for the case doctrines A plea of guilt later withdrawn, or an unaccepted offer of a plea of guilty to a lesser offense, is not admissible in evidence against the accused who made the plea or offer. An offer to pay or the payment of medical, hospital, or other expenses occasioned by an injury is not admissible in evidence as proof of civil or criminal liability for the injury. Res inter alios acta alteri nocere non debet. Things done between strangers ought not to injure those who are not parties to them Admission by others R130, Sec. 28. Admission by third party – The rights of a party cannot be prejudiced by an act, declaration or omission of another, except as hereinafter provided. Exceptions to res inter alios acta Vicarious admissions Agents and partners R130, Sec. 29. Admission by co-partner or agent – The act or declaration of a partner or agent of the party within the scope of his authority during the existence of the partnership or agency, may be given in evidence against such party after the partnership or agency is shown by evidence other than such act or declaration. The same rule applies to the act or declaration of a joint owner, joint debtor, or other person jointly interested with the party Co-conspirators R130, Sec. 30. Admission by conspirator – The act or declaration of a conspirator relating to the conspiracy and during its existence, may be given in evidence against the co-conspirator after the conspiracy is shown by evidence other than such act or declaration. People v Yatco. People v Guevarra. Conspiracy is "always predominantly 'mental in composition' because it consists primarily of a meeting of minds and an intent." Hence, direct proof is not essential to establish it. By its nature, conspiracy is planned in utmost secrecy, it can rarely be proven by direct evidence. || The requisites for criminal liability under this provision are: 1) participation in the criminal resolution, i.e., there is either anterior conspiracy or unity of criminal purpose and intention immediately before or simultaneously with the commission of the crime charged; and 2) cooperation in the commission of the offense by performing another act without which the crime would not have been accomplished. || At the locus criminis was Guevarra. His presence did not merely give aid or support, but emboldened the attacker as the victim was immobilized by Guevarra. People v Salvador. Admission by privies R130, Sec. 31. Admisssion by privies – Where one derives title to property from another, the act, declaration, or omission of the latter, while holding the title, in relation to the property, is evidence against the former. Alpuerto v Perez. The word "privies," as used in article 1225 of the Civil Code, denotes not only the idea of succession in right of heirship or testamentary legacy, but also succession by virtue of acts inter vivos, as by assignment, subrogation, or purchase — in fact any act whereby the successor is substituted in the place of the predecessor in interest. The purchaser at an execution sale is, therefore, a privy of the execution debtor. Under the interpretation thus placed upon the meaning of the term "privies", it is clear that Jose Perez Pastor, the purchaser at the public sale under an execution directed against Juan Llenos, must be considered a privy or successor in interest of the execution debtor. He is therefore undoubtedly bound by the instrument which conveyed the property to Eladio Alpuerto City of Manila v del Rosario. Where one derives title to real estate from another, the declaration act, or omission of the latter to the property is evidence against the former only when made while the latter holds the title. A possessory information recorded in the property register is prima facie evidence of the fact that the person who instituted the proceedings holds the property as owner; and the presumption, under article 448 of the Civil Code, is that his title is good unless the contrary is shown. By the same person R130, Sec. 34. Similar acts as evidence – Evidence that one did or did not do a certain thing at one time is not admissible to prove that he did or did not do the same or a similar thing at another time; but it may be received to prove a specific intent or knowledge, identity, plan, system, scheme, habit, custom, or usage, and the like. R130, Sec. 35. Unaccepted offer – An offer in writing to pay a particular sum of money or to deliver a written instrument or specific personal property is, if rejected without valid cause, equivalent to the actual production and tender of the money, instrument or property. See also Character evidence rule R132, Sec. 14. Evidence of good character of witness – Evidence of good character of a witness is not admissible until such character has been impeached. Exceptions Malig v Sandiganbayan. While it may be that pursuant to Section 48, Rule 130 of the Rules of Court "evidence that one did or omitted to do a certain thing at one time is not admissible to prove that he did or omitted to do the same or similar thing at another time," the same Rule also provides that "it may be received to prove a specific intent or knowledge, identity, plan, system, scheme, habit, custom or usage and the like." Emiliana Gerona's credible testimony regarding the amounts petitioners received from the Matictic project sufficiently establishes petitioners "intent" and/or "habit" of demanding and receiving money from the contractor-complainant, such that the latter, in exasperation, felt that enough was enough, to the prejudice of his future contracts. Testimonial knowledge R130, Sec. 36. Testimony generally confined to personal knowledge; hearsay excluded – A witness can testify only to those facts which he knows of his personal knowledge; that is, which are derived from his own perception, except as otherwise provided in these rules. People v Gaddi. Appellant’s claim that Ernesto Guzman's testimony on Gaddi's confession of the crime to him cannot be given credence for being hearsay is unavailing. A confession constitutes evidence of high order since it is supported by the strong presumption that no person of normal mind would deliberately and knowingly confess to a crime unless prompted by truth and his conscience Proof that a person confessed to the

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Special thanks to classmates for the case doctrines commission of a crime can be presented in evidence without violating the hearsay rule [Section 30, Rule 130 of the Revised Rules of Court] which only prohibits a witness from testifying as to those facts which he merely learned from other persons but not as to those facts which he "knows of his own knowledge: that is, which are derived from his own perception." Hence, while the testimony of a witness regarding the statement made by another person, if intended to establish the truth of the fact asserted in the statement, is clearly hearsay evidence, it is otherwise if the purpose of placing the statement in the record is merely to establish the fact that the statement was made or the tenor of such statement Here, when Guzman testified that the appellant, who probably was bothered by his conscience, admitted the killing to him, there was no violation of the hearsay rule as Guzman was testifying to a fact which he knows of his own personal knowledge; that is, be was testifying to the fact that the appellant told him that he stabbed Augusta Esguerra and not to the truth of the appellant's statement. Estrada v Desierto [MR]. Comilang v Barcena. On Margarita’s testimony that Dominga told her that the respondents sent her (Dominga) money to buy the subject property, it cannot be categorized as hearsay evidence. Margarita’s testimony was not presented to prove the truth thereof, but only to establish the fact that Dominga narrated to Margarita the source of the funds used in the purchase of the subject property. What was sought to be admitted in evidence, and what was actually admitted in evidence, was the fact that the statement was made by Dominga to Margarita, not necessarily that the matters stated by her were true. The said utterance is in the nature of an independently relevant statement which may be admitted in evidence as such, but not necessarily to prove the truth thereof. Thus, while it is true that the testimony of a witness regarding a statement made by another person, if intended to establish the truth of the fact asserted in the statement, is clearly hearsay evidence, it is otherwise if the purpose of placing the statement in the record is merely to establish the fact that the statement was made or the tenor of such statement. Regardless of the truth or falsity of a statement, when the fact that it has been made is relevant, the hearsay rule does not apply and the statement may be shown. As a matter of fact, evidence as to the making of the statement is not secondary but primary, for the statement itself may constitute a fact in issue, or be circumstantially relevant as to the existence of such a fact. For this reason, the statement attributed to Dominga regarding the source of the funds used to purchase the subject property related to the court by Margarita is admissible if only to establish the fact that such statement was made and the tenor thereof. People v Gumimba. The appellant challenges the testimonies of the witnesses Magallano and Aranas as being hearsay. But the challenge fails. “The testimonies, it should be conceded, cannot serve as a proof of extrajudicial confession for an extrajudicial confession has to be in writing, among others, to be admissible in evidence. That is why the testimonies are of use in the case as corroborative evidence only. Such utility, however, cannot be defeated by the hearsay rule.”|| “The testimonies covered are independently relevant statements which are not barred by the hearsay rule. Under the doctrine of independently relevant statements, only the fact that such statements were made is relevant, and the truth or falsity thereof is immaterial. The hearsay rule does not apply. The statements are admissible as evidence. Evidence as to the making of such statement is not secondary but primary, for the statement itself may constitute a fact in issue or be circumstantially relevant as to the existence of such a fact.”|| “Also, where there is no evidence to show any dubious reason or improper motive for a prosecution witness to bear false testimony against the accused or falsely implicate him in a crime, his or her testimony should be given full faith and credit.” Exceptions to hearsay rule Dying declaration

R130, Sec. 37. Dying declaration – The declaration of a dying person, made under the consciousness of an impending death, may be received in any case wherein his death is the subject of inquiry, as evidence of the cause and surrounding circumstances of such death. US v Gil. Dying declarations have always been regarded as an exception to the general rule rejecting hearsay evidence, on the general principle, as laid down by Lord Baron Eyre, "That they are declarations made in extremity, when the party is at that point of death, and when every hope of this world is gone; when every motive to falsehood is silenced and the mind is induced by the most powerful considerations to speak the truth. A situation so solemn and so awful as to be considered by the law as creating an obligation equal to that which is imposed by a positive oath in a court of justice." That the declarant was conscious of his impending death, and that he spoke with the prospect of "almost immediate dissolution" confronting him; that he understood the meaning and effect of his statement; and that he knew he was addressing the law officers of the town and province wherein he lived, and informing them as to the circumstances which led up to his death, are facts which we think are sufficiently established by the evidence of record. People v Sabio. The admission of dying declarations has always been strictly limited to criminal prosecutions for homicide or murder as evidence of the cause and surrounding circumstances of death. People v Salison. The Court noted that at the time the deceased made the declaration he was in great pain. He expressed a belief on his imminent death and the hope that his declaration could be used as evidence regarding the circumstances thereof. A person would not say so if he believes he would recover and be able to testify against his assailants. At all events, assuming that declaration is not admissible as a dying declaration, it is still admissible as part of the res gestae, since it was made shortly after the startling incident and, under the circumstances, the victim had no opportunity to contrive. People v Bautista. If it is true that Leticia Bandarlipe actually saw her husband being shot by appellant, or that her dying husband told her that it was appellant who shot him, why did she not report what she saw and heard to the two barangay tanods, Gagaza and de Leon, who responded to her shouts for help; and, why was she reluctant to file a complaint against the gunman whom she allegedly saw shoot her husband. Her acts are contrary to the natural tendency of a witness closely related to the victim, to report a crime and describe the malefactor at the earliest possible opportunity. In fact, it was not until about ten (10) months later that Leticia executed a sworn statement pointing to appellant as the assailant of her husband Cipriano. Marturillas v People. Generally, witnesses can testify only to those facts derived from their own perception. A recognized exception, though, is a report in open court of a dying person’s declaration made under the consciousness of an impending death that is the subject of inquiry in the case. || Statements identifying the assailant, if uttered by a victim on the verge of death, are entitled to the highest degree of credence and respect. Persons aware of an impending death have been known to be genuinely truthful in their words and extremely scrupulous in their accusations. The dying declaration is given credence, on the premise that no one who knows of one’s impending death will make a careless and false accusation. Hence, not infrequently, pronouncements of guilt have been allowed to rest solely on the dying declaration of the deceased victim. To be admissible, a dying declaration must 1) refer to the cause and circumstances surrounding the declarant’s death; 2) be made under the consciousness of an impending death; 3) be made freely and voluntarily without coercion or suggestions of improper influence; 4) be offered in a criminal case, in which the death of the declarant is the subject of inquiry; and 5) have been made by a declarant competent to testify as a witness, had that person been called upon to testify.

declaration against interest

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Special thanks to classmates for the case doctrines R130, Sec. 38. Declaration against interest – The declaration made by a person deceased, or unable to testify, against the interest of the declarant, if the fact asserted in the declaration was at the time it was made so far contrary to declarant’s own interest, that a reasonable man in his position would not have made the declaration unless he believed it to be true, may be received in evidence against himself or his successors in interest and against third persons. People v Toledo. Dying declaration is admitted of necessity in order, as the Supreme Court of Mississippi states, "to reach those man slayers who perpetrate their crimes when there are no other eyewitnesses." But the person accused of a crime, under the same principle of necessity, is not permitted to free himself by offering in evidence the admission of another under oath that this other committed the crime. Again admissions are receivable against either a pecuniary or a proprietary interest, but not against a penal interest. We fail to see why it can be believed that a man will be presumed to tell the truth in the one instance but will not be presumed to tell the truth in the other instance. Again the exhibit would have been admitted against its maker at his trial, if he had not died. But the document is held inadmissible to exonerate another. Yet the truth of the exhibit is not different in the first case that in the second. Fuentes v CA. There are three (3) essential requisites for the admissibility of a declaration against interest: (a) the declarant must not be available to testify; (b) the declaration must concern a fact cognizable by the declarant; and (c) the circumstances must render it improbable that a motive to falsify existed. || One striking feature that militates against the acceptance of such a statement is its patent untrustworthiness. Zoilo who is related to accused-appellant had every motive to prevaricate. The same can be said of accused-appellant and his uncle Felicisimo. Secondly, we need not resort to legal rhetorics to find that the admission of such a statement may likewise be, according to Wigmore, "shocking to the sense of justice." Let us assume that the trial court did admit the statement of Zoilo and on that basis acquitted accused-appellant. Let us assume further that Zoilo was subsequently captured and upon being confronted with his admission of guilt readily repudiated the same. There is nothing, absolutely nothing, that can bind Zoilo legally to that statement. || The most important reason why the admission against penal interest cannot be accepted in the instant case is that the declarant is not "unable to testify." There is no showing that Zoilo is dead, mentally incapacitated or physically incompetent which Sec. 38 obviously contemplates. His mere absence from the jurisdiction does not make him ipso facto unavailable under this rule. It is incumbent upon the defense to produce each and every piece of evidence that can break the prosecution and assure the acquittal of the accused. People v Bernal. Motive is generally irrelevant, unless it is utilized in establishing the identity of the perpetrator. Coupled with enough circumstantial evidence of facts from which it may be reasonably inferred that the accused was the malefactor, motive may be sufficient to support a conviction. Openda, Jr.'s revelation to Enriquez regarding his illicit relationship with Bernal's wife is admissible in evidence, pursuant to Section 38, Rule 130. With the deletion of the phrase "pecuniary or moral interest" from the present provision, it is safe to assume that "declaration against interest" has been expanded to include all kinds of interest, that is, pecuniary, proprietary, moral or even penal. A statement may be admissible when it complies with the following requisites, to wit: "(1) that the declarant is dead or unable to testify; (2) that it relates to a fact against the interest of the declarant; (3) that at the time he made said declaration the declarant was aware that the same was contrary to his aforesaid interest; and (4) that the declarant had no motive to falsify and believed such declaration to be true."

Philippine Free Press v CA. Allegations of duress or coercion against a dead person should be taken with utmost caution because the deceased is deprived or is bereft of opportunity to cross-examine the persons to whom the statements are attributed. The temptation and opportunity for fraud operate against the testimony. Parel v Prudencio. The theory under which declarations against interest are received in evidence notwithstanding they are hearsay is that the necessity of the occasion renders the reception of such evidence advisable and, further that the reliability of such declaration asserts facts which are against his own pecuniary or moral interest

Pedigree R130, Sec. 39. Act or declaration about pedigree – The act or declaration of a person deceased, or unable to testify, in respect to the pedigree of another person related to him by birth or marriage, may be received in evidence other than such act or declaration. The word “pedigree” includes relationship, family genealogy, birth, marriage, death, the dates when and the places where these fact occurred, and the names of the relatives. it embraces also facts of family history intimately connected with pedigree. Gravador v Mamigo. In the second place, the import of the declaration of the petitioner's brother, contained in a verified pleading in a cadastral case way back in 1924, to the effect that the petitioner was then 23 years old, cannot be ignored. Made ante litem motam by a deceased relative, this statement is at once a declaration regarding pedigree within the intendment and meaning of section 33 of Rule 130 of the Rules of Court. Tison v CA. The primary proof to be considered in ascertaining the relationship between the parties concerned is the testimony of Corazon Dezoller Tison to the effect that Teodora Dezoller Guerrero in her lifetime, or sometime in 1946, categorically declared that the former is Teodora's niece. Such a statement is considered a declaration about pedigree which is admissible, as an exception to the hearsay rule, under Section 39, Rule 130 of the Rules of Court, subject to the following conditions: (1) that the declarant is dead or unable to testify; (2) that the declarant be related to the person whose pedigree is the subject of inquiry; (3) that such relationship be shown by evidence other than the declaration; and (4) that the declaration was made ante litem motam, that is, not only before the commencement of the suit involving the subject matter of the declaration, but before any controversy has arisen thereon. Solinap v Locsin. The filiation of illegitimate children, like legitimate children, is established by (1) the record of birth appearing in the civil register or a final judgment; or (2) an admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned. In the absence thereof, filiation shall be proved by (1) the open and continuous possession of the status of a legitimate child; or (2) any other means allowed by the Rules of Court and special laws. The due recognition of an illegitimate child in a record of birth, a will, a statement before a court of record, or in any authentic writing is, in itself, a consummated act of acknowledgment of the child, and no further court action is required. In fact, any authentic writing is treated not just a ground for compulsory recognition; it is in itself a voluntary recognition that does not require a separate action for judicial approval. Where, instead, a claim for recognition is predicated on other evidence merely tending to prove paternity, i.e., outside of a record of birth, a will, a statement before a court of record or an authentic writing, judicial action within the applicable statute of limitations is essential in order to establish the child's acknowledgment Tecson v COMELEC. Being public documents, the death certificate of Lorenzo Pou, the marriage certificate of Allan F. Poe and Bessie Kelly, and the birth certificate of FPJ, constitute prima facie proof of their contents. The trustworthiness of public documents and the value given to the entries made therein could be grounded on 1) the sense of official duty in the preparation of the statement made, 2) the penalty which is usually affixed to a breach of that duty, 3) the routine and disinterested origin of most such statements, and 4) the publicity of record which makes more likely the prior exposure of such errors as might have occurred

family tradition

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Special thanks to classmates for the case doctrines R130, Sec. 40. Family reputation or tradition regarding pedigree – The reputation or tradition existing in a family previous to the controversy, in respect to the pedigree of any one of its members, may be received in evidence if the witness testifying thereon by also a member of the family, either by consanguinity or affinity. Entries in family bibles or other family books or charts, engraving on rings, family portraits and the like, may be received as evidence of pedigree. Ferrer v de Ynchausti. The children of Rosa Matilde are suing their mother’s alleged siblings for the share in the intestate estate of their alleged grandmother. One issue involves whether Rosa Matilde is a legitimate daughter of the alleged grandmother and her first husband. One of the pieces of evidence considered by the court is the day book (diary?) of one of the alleged brothers containing entries making it impossible for Rosa Matilde to be a daughter, let alone a legitimate one, of her alleged mother. In considering said diary, the Supreme Court considered it as being similar to entries in family Bibles or other family books or charts… as evidence of pedigree. Even if the entries were not made at the same time as the events they’re relating, the entries are still admissible. Such fact is not a defect as the law does not require them to be made at the same time. In re Mallare. The witnesses, all natives of Macalelon (where Florencio’s father and paternal grandmother lived), who had personal knowledge of the person, birth and residency of both Ana Mallare and her son Esteban, were one in their declaration that Ana Mallare is a Tagalog who had continuously resided in the place, and that Esteban, her son, was reputedly born out of wedlock. Such declarations constitute admissible evidence of the birth and illegitimacy of Esteban Mallare. Reputation has been held admissible as evidence of age, birth, race, or race-ancestry, and on the question of whether a child was born alive. Unlike that of matters of pedigree, general reputation of marriage may proceed from persons who are not members of the family — the reason for the distinction is the public interest that is taken in the question of the existence of marital relations.

common reputation R130, Sec. 41. Common Reputation – Common reputation existing previous to the controversy, respecting facts of public or general interest more than thirty years old, or respecting marriage or moral character, may be given in evidence. Monuments and inscriptions in public places may be given as evidence of common reputation. City of Manila v Del Rosario.

Res gestae R130, Sec. 42. Part of res gestae – Statements made by a person while a startling occurrence is taking place or immediately prior or subsequent thereto with respect to the circumstances thereof, may be given in evidence as part of res gestae. So, also, statements accompanying an equivocal act material to the issue, and giving it a legal significance, may be received as part of the res gestae People v Putian. The statement was given sometime after the stabbing while he was undergoing treatment at a medical clinic. He had no time to concoct a falsehood or to fabricate a malicious charge against Putian. No motive has been shown as to why he would frame up Putian.The statement was a part of the res gestae and proved beyond reasonable doubt that Putian inflicted upon him the stab wound that caused his death 5 days later in the hospital."Although a declaration does not appear to have been made by the declarant under the expectation of a sure and impending death, and, for the reason, is not admissible as a dying declaration, yet if such declaration was made at the time of, or immediately after, the commission of the crime, or at a time when the exciting influence of the startling occurrence still continued in the declarant's mind, it is admissible as a part of the res gestae." People v Lungayan. Complainant was a widow, 52 years of age. She had been married three times. She was not that innocent about the world. When appellant invited her at 10:00 P.M. to step out of her house, she should have declined. Going out alone with a man late in the evening is not in good taste nor safe even if the one who invited her was the barrio captain. Instead, she should have suggested that the appellant invite some other person for the purpose. People v Tolentino. True that Grace failed to mention the names of accused-appellant Tala and accused Matawaran in her extrajudicial statement, but considering the fact that at the time her statement was taken she was then groggy and delirious from the stab wound she sustained but was nevertheless, able to positively identify accused-appellant on the witness stand as one of the persons who stabbed her and the children. || Her testimony is further supported by the testimony of Lingad. This case involves the correct application of res gestae. (1) that the principal act, the res gestae, be a startling occurrence; (2) that the statements were made before the declarant had time to contrive or devise; and (3) that the statements made must concern the occurrence in question and its immediately attending circumstances which are all present in the case at bar as Geraldine had named accused-appellant as one of the perpetrators in the commission of the crime immediately after the occurrence of the stabbing incident. People v Tulagan. DBP v Radio Mindanao Network. The Court is not convinced to accept the declarations as part of res gestae. While it may concede that these statements were made by the bystanders during a startling occurrence, it cannot be said however, that these utterances were made spontaneously by the bystanders and before they had the time to contrive or devise a falsehood. Both SFO III Rochar and Lt. Col. Torres received the bystanders’ statements while they were making their investigations during and after the fire. It is reasonable to assume that when these statements were noted down, the bystanders already had enough time and opportunity to mill around, talk to one another and exchange information, not to mention theories and speculations, as is the usual experience in disquieting situations where hysteria is likely to take place. It cannot therefore be ascertained whether these utterances were the products of truth. That the utterances may be mere idle talk is not remote.

entries in the course of business R130, Sec. 43. Entries in the course of business – Entries made at, or near the time of the transactions to which they refer, by a person deceased, or unable to testify, who was in a position to know the facts therein stated, may be received as prima facie evidence, if such person made the entries in his professional capacity or in the performance of duty and in the ordinary or regular course of business or duty. Aznar v Citibank. Under this rule, the following conditions are required: (1) the person who made the entry must be dead, or unable to testify; (2) the entries were made at or near the time of the transactions to which they refer; (3) the entrant was in a position to know the facts stated in the entries; (4) the entries were made in his professional capacity or in the performance of a duty, whether legal, contractual, moral or religious; and (5) the entries were made in the ordinary or regular course of business or duty. Nestle Philippines v FY Sons. Nestle’s credit and collection manager, Rayos, who prepares statements of account based on invoices and delivery orders, testified on the indebtedness. However, the SA was undated and unsigned. The delivery orders that covered the transactions had signatures on them but none was conclusively shown to belong to a representative of FY Sons. This is not an exception to the hearsay rule on the strength of entries made in the course of business (Sec 43 Rule 130). Rayos was not involved in the delivery end of the transaction and only prepared records and documents of all the company’s accounts receivable, thus she had no personal

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Special thanks to classmates for the case doctrines knowledge of the facts reflected by the invoices and delivery orders. In fact, she wasn’t even the credit and collection manager at the time the incident happened. Security Bank and Trust Co v Gan. Requisites 1 & 3 missing. The plaintiff submits that the ledger cards constituted the best evidence of the transactions made by the defendant with the bank relative to his account, pursuant to Section 43 of Rule 130 of the Revised Rules on Evidence. There is no question that the entries in the ledgers were made by one whose duty it was to record transactions in the ordinary or regular course of the business. But for the entries to be prima facie evidence of the facts recorded, the Rule interpose[s] a very important condition, one which we think is truly indispensable to the probative worth of the entries as an exception to the hearsay rule, and that is that the entrant must be “in a position to know the facts therein stated.” Undeniably, Mr. Mercado was in a position to know the facts of the check deposits and withdrawals.

official records R130, Sec. 44. Entries in official records – Entries in official records made in the performance of his duty by a public officer of the Philippines, or by a person in the performance of a duty specially enjoined by law, are prima facie evidence of the facts stated therein. People v Leones. The written entries in the clinical case record, Exh. "2", showing the date of her admission in the hospital on April 22, 1973, her complaint of vaginal bleeding and the diagnosis of "Healing lacerated wide at 2 o'clock and 10 o'clock hymen" are prima facie evidence of the facts therein stated, the said entries having been made in official records by a public officer of the Philippines in the performance of his duty especially enjoined by law, which is that of a physician in a government hospital. (Rule 130, See. 38, Rules of Court). In the case at bar, Dr. Antonino Estioco was the admitting physician but unfortunately, he was not presented as a witness for the government. People v Gabriel. Entries in official records, as in the case of a police blotter, are only prima facie evidence of the facts therein stated. They are not conclusive. The entry in the police blotter is not necessarily entitled to full credit for it could be incomplete and inaccurate, sometimes from either partial suggestions or for want of suggestions or inquiries, without the aid of which the witness may be unable to recall the connected collateral circumstances necessary for the correction of the first suggestion of his memory and for his accurate recollection of all that pertain to the subject. It is understandable that the testimony during the trial would be more lengthy and detailed than the matters stated in the police blotter. || Entries in official records made in the performance of his duty by a public officer or by a person in the performance of a duty specially enjoined by law are prima facie evidence of the facts therein stated. But to be admissible in evidence three (3) requisites must concur: (a) The entry was made by a police officer or by another person specially enjoined by law to do so; (b) It was made by the public officer in the performance of his duties or by such other person in the performance of a duty specially enjoined by law; and, (c) The public officer or other person had sufficient knowledge of the facts by him stated, which must have been acquired by him personally or through official information. Wallem Maritime v NLRC. The ship captain's logbook is vital evidence as Article 612 of the Code of Commerce requires him to keep a record of the decisions he had adopted as the vessel's head. || The entry in the logbook is so sketchy that, unsupported by other evidence, it leaves so many questions unanswered. Although Macatuno candidly admitted in his affidavit having hit Sason on the chest twice, he did not admit using a spanner. The conflicting versions of the incident rendered it impossible to determine whether it was Macatuno or Gurimbao who wielded said tool. In the absence of a more detailed narration in the logbook entry of the circumstances surrounding the alleged assault, the same cannot constitute a valid justification to terminate Macatuno's employment. Barcelon v Commissioner of Internal Revenue. Jurisprudence is replete with cases holding that if the taxpayer denies ever having received an assessment from the BIR, it is incumbent upon the latter to prove by competent evidence that such notice was indeed received by the addressee. The onus probandi was shifted to respondent to prove by contrary evidence that the Petitioner received the assessment in the due course of mail. The Supreme Court has consistently held that while a mailed letter is deemed received by the addressee in the course of mail, this is merely a disputable presumption subject to controversion and a direct denial thereof shifts the burden to the party favored by the presumption to prove that the mailed letter was indeed received by the addressee

commercial lists R130, Sec. 45. Commercial lists and the like – Evidence of statements of matters of interest to persons engaged in an occupation contained in a list, register, periodical or other published compilation is admissible as tending to prove the truth of any relevant matter so stated if that compilation is published for use by persons engaged in that occupation and is generally used and relied upon by them therein.

Learned treatises R130, Sec. 46. Learned treatises – A published treatise, periodical or pamphlet on a subject of history, law, science or art is admissible as tending to prove the truth of a matter stated therein if the court takes judicial notice, or a witness expert in the subject testifies, that the writer of the statement in the treatise, periodical or pamphlet is recognized in his profession or calling as expert in the subject.

prior testimony R130, Sec. 47. Testimony or deposition at a former proceeding – The testimony or deposition of a witness deceased or unable to testify, given in a former case or proceeding, judicial or administrative, involving the same parties and subject matter, may be given in evidence against the adverse party who had the opportunity to cross-examine him. Tan v CA. Here, the witnesses in question were available. Only, they refused to testify. No other person that prevented them from testifying, is cited. Certainly, they do not come within the legal purview of those unable to testify. Manliclic v Calaunan. For Section 47, Rule 130 to apply, the following requisites must be satisfied: (a) the witness is dead or unable to testify; (b) his testimony or deposition was given in a former case or proceeding, judicial or administrative, between the same parties or those representing the same interests; (c) the former case involved the same subject as that in the present case, although on different causes of action; (d) the issue testified to by the witness in the former trial is the same issue involved in the present case; and (e) the adverse party had an opportunity to cross-examine the witness in the former case

Opinion Rule R130, Sec. 48. General Rule – The opinion of a witness is not admissible, except as indicated in the following sections. R130, Sec. 49. Opinion of Expert Witness – The opinion of a witness on a matter requiring special knowledge, skill, experience or training which he is shown to possess, may be received in evidence. R130, Sec. 50. Opinion of ordinary witnesses – The opinion of a witness for which proper basis is given, may be received in evidence regarding –

(a) the identity of a person about whom he has adequate knowledge (b) a handwriting with which he has sufficient familiarity; and (c) The mental sanity of a person with whom he is sufficiently acquainted.

The witness may also testify on his impressions of the emotion, behavior, condition or appearance of a person.

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Special thanks to classmates for the case doctrines People v Adoviso. The failure of a witness to reveal at once the identity of the accused as one of the perpetrators of the crime does not affect, much less impair his credibility as a witness. The general or common rule is that witnesses react to a crime in different ways. There is no standard form of human behavioral response to a strange, startling and frightening event, and there is no standard rule by which witnesses to a crime must react. China Banking v. CA. The rule of evidence requiring the opinion of expert witnesses applies only to such matters clearly within the domain of medical science, and not to matters that are within the common knowledge of mankind which may be testified to by anyone familiar with the facts. Thus, to prove whether one is blind, it is not necessary to submit a medical certificate attesting to the blindness or to require an expert witness, such as an ophthalmologist, to testify to such fact, since the fact of blindness can be determined through common knowledge and by anyone with sufficient familiarity of such fact. In this case, Avelina, then alive during the trial of the case, categorically testified and attested to her own blindness, a fact which even the trial court noted. Daubert v Merrel Dow Pharmaceuticals. "general acceptance" is not a necessary precondition to the admissibility of scientific evidence under the Federal Rules of Evidence, but the Rules of Evidence--especially Rule 702--do assign to the trial judge the task of ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand. Pertinent evidence based on scientifically valid principles will satisfy those demands. Character Evidence R130, Sec. 51. Character evidence not generally admissible; exceptions –

(a) In criminal cases: (1) The accused may prove his good moral character which is pertinent to the moral trait involved in the offense charged (2) Unless in rebuttal, the prosecution may not prove his bad moral character which is pertinent to the moral trait involved in the offense

charged. (3) The good or bad moral character of the offended party may be proved if it tends to establish any reasonable degree the probability or

improbability of the offense charged (b) In Civil Cases:

Evidence of the moral character of a party in a civil case is admissible only when pertinent to the issue of character involved in the case. (c) In the case provided for in Rule 132, section 14.

Cf. R132, Sec. 14, supra. US v Pineda. What the appellant is here relying on is the maxim res inter alios acta. As a general rule, the evidence of other offenses committed by a defendant is inadmissible. But appellant has confused this maxim and this rule with certain exceptions thereto. The effort is not to convict the accused of a second offense. Nor is there an attempt to draw the mind away from the point at issue and thus to prejudice defendant's case. The purpose is to ascertain defendant's knowledge and intent, and to fix his negligence. If the defendant has on more than one occasion performed similar acts, accident in good faith is possibly excluded, negligence is intensified, and fraudulent intent may even be established. It has been said that there is no better evidence of negligence than the frequency of accidents.. People v Irang. The testimony of Juana de la Cruz to the effect that her house, situated only about one hundred meters from that of Perfecto Melocotones, was assaulted that same night by some malefactors with white stripes upon their faces, and that one of them, with pockmarks on his face and a scar on his left eyelid and dressed in a maong-colored suit, who later turned out to be the herein accused-appellant, opened her box, indirectly corroborates Maximiniana Vicente's testimony that the man of the same description was the open who went to her house and demanded delivery of her money and jewelry, having recognized him later to be the herein accused-appellant. While evidence of another crime is, as a rule, not admissible in a prosecution for robbery, it is admissible when it is otherwise relevant, as where it tends to identify defendant as the perpetrator of the robbery charged, or tends to show his presence at the scene or in the vicinity of the crime at the time charged, or when it is evidence of a circumstance connected with the crime

F. Burdens of Evidence/ Burdens of Proof R131, Sec. 1. Burden of Proof – Burden of proof is the duty of a party to present evidence on the facts in issue necessary to establish his claim or defense by the amount of evidence required by law. R131, Sec. 2. Conclusive presumptions – The following are instances of conclusive presumptions:

(a) Whenever a party has, by his own declaration, act, or omission, intentionally and deliberately led to another to believe a particular thing true, and to act upon such belief, he cannot, in any litigation arising out of such declaration, act or omission, be permitted to falsify it.

(b) The tenant is not permitted to deny the title of his landlord at the time of commencement of the relation of landlord and tenant between them. R131, Sec. 3. Disputable presumptions. — The following presumptions are satisfactory if uncontradicted, but may be contradicted and overcome by other evidence:

(a) That a person is innocent of crime or wrong; (b) That an unlawful act was done with an unlawful intent; (c) That a person intends the ordinary consequences of his voluntary act; (d) That a person takes ordinary care of his concerns; (e) That evidence willfully suppressed would be adverse if produced; (f) That money paid by one to another was due to the latter; (g) That a thing delivered by one to another belonged to the latter; (h) That an obligation delivered up to the debtor has been paid; (i) That prior rents or installments had been paid when a receipt for the later one is produced; (j) That a person found in possession of a thing taken in the doing of a recent wrongful act is the taker and the doer of the whole act; otherwise, that

things which a person possess, or exercises acts of ownership over, are owned by him; (k) That a person in possession of an order on himself for the payment of the money, or the delivery of anything, has paid the money or delivered the

thing accordingly; (l) That a person acting in a public office was regularly appointed or elected to it; (m) That official duty has been regularly performed; (n) That a court, or judge acting as such, whether in the Philippines or elsewhere, was acting in the lawful exercise of jurisdiction; (o) That all the matters within an issue raised in a case were laid before the court and passed upon by it; and in like manner that all matters within

an issue raised in a dispute submitted for arbitration were laid before the arbitrators and passed upon by them; (p) That private transactions have been fair and regular; (q) That the ordinary course of business has been followed; (r) That there was a sufficient consideration for a contract;

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Special thanks to classmates for the case doctrines (s) That a negotiable instrument was given or indorsed for a sufficient consideration; (t) That an endorsement of negotiable instrument was made before the instrument was overdue and at the place where the instrument is dated; (u) That a writing is truly dated; (v) That a letter duly directed and mailed was received in the regular course of the mail; (w) That after an absence of seven years, it being unknown whether or not the absentee still lives, he is considered dead for all purposes, except for

those of succession. The absentee shall not be considered dead for the purpose of opening his succession till after an absence of ten years. If he disappeared

after the age of seventy-five years, an absence of five years shall be sufficient in order that his succession may be opened. The following shall be considered dead for all purposes including the division of the estate among the heirs: (1) A person on board a vessel lost during a sea voyage, or an aircraft with is missing, who has not been heard of for four years since the

loss of the vessel or aircraft; (2) A member of the armed forces who has taken part in armed hostilities, and has been missing for four years; (3) A person who has been in danger of death under other circumstances and whose existence has not been known for four years; (4) If a married person has been absent for four consecutive years, the spouse present may contract a subsequent marriage if he or she

has well-founded belief that the absent spouse is already death. In case of disappearance, where there is a danger of death the circumstances hereinabove provided, an absence of only two years shall be sufficient for the purpose of contracting a subsequent marriage. However, in any case, before marrying again, the spouse present must institute a summary proceedings as provided in the Family Code and in the rules for declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse.

(x) That acquiescence resulted from a belief that the thing acquiesced in was conformable to the law or fact; (y) That things have happened according to the ordinary course of nature and ordinary nature habits of life; (z) That persons acting as copartners have entered into a contract of co-partnership; (aa) That a man and woman deporting themselves as husband and wife have entered into a lawful contract of marriage; (bb) That property acquired by a man and a woman who are capacitated to marry each other and who live exclusively with each other as husband and

wife without the benefit of marriage or under void marriage, has been obtained by their joint efforts, work or industry. (cc) That in cases of cohabitation by a man and a woman who are not capacitated to marry each other and who have acquire properly through their

actual joint contribution of money, property or industry, such contributions and their corresponding shares including joint deposits of money and evidences of credit are equal.

(dd) That if the marriage is terminated and the mother contracted another marriage within three hundred days after such termination of the former marriage, these rules shall govern in the absence of proof to the contrary: (1) A child born before one hundred eighty days after the solemnization of the subsequent marriage is considered to have been conceived

during such marriage, even though it be born within the three hundred days after the termination of the former marriage. (2) A child born after one hundred eighty days following the celebration of the subsequent marriage is considered to have been conceived

during such marriage, even though it be born within the three hundred days after the termination of the former marriage. (ee) That a thing once proved to exist continues as long as is usual with things of the nature; (ff) That the law has been obeyed; (gg) That a printed or published book, purporting to be printed or published by public authority, was so printed or published; (hh) That a printed or published book, purporting contain reports of cases adjudged in tribunals of the country where the book is published, contains

correct reports of such cases; (ii) That a trustee or other person whose duty it was to convey real property to a particular person has actually conveyed it to him when such

presumption is necessary to perfect the title of such person or his successor in interest; (jj) That except for purposes of succession, when two persons perish in the same calamity, such as wreck, battle, or conflagration, and it is not shown

who died first, and there are no particular circumstances from which it can be inferred, the survivorship is determined from the probabilities resulting from the strength and the age of the sexes, according to the following rules: 1. If both were under the age of fifteen years, the older is deemed to have survived; 2. If both were above the age sixty, the younger is deemed to have survived; 3. If one is under fifteen and the other above sixty, the former is deemed to have survived; 4. If both be over fifteen and under sixty, and the sex be different, the male is deemed to have survived, if the sex be the same, the older; 5. If one be under fifteen or over sixty, and the other between those ages, the latter is deemed to have survived.

(kk) That if there is a doubt, as between two or more persons who are called to succeed each other, as to which of them died first, whoever alleges the death of one prior to the other, shall prove the same; in the absence of proof, they shall be considered to have died at the same time.

R131, Sec. 4. No presumption of legitimacy or illegitimacy – There is no presumption of legitimacy or illegitimacy of a child born after 300 days following the dissolution of the marriage or the separation of the spouses. Whoever alleges the legitimacy or illegitimacy of such child must prove his allegation. RULE 132: PRESENTATION OF EVIDENCE A. EXAMINATION OF WITNESSES

R132, Sec. 1. Examination to be done in open court. — The examination of witnesses presented in a trial or hearing shall be done in open court, and under oath or affirmation. Unless the witness is incapacitated to speak, or the question calls for a different mode of answer, the answers of the witness shall be given orally. R132, Sec. 2. Proceedings to be recorded. — The entire proceedings of a trial or hearing, including the questions propounded to a witness and his answers thereto, the statements made by the judge or any of the parties, counsel, or witnesses with reference to the case, shall be recorded by means of shorthand or stenotype or by other means of recording found suitable by the court.

A transcript of the record of the proceedings made by the official stenographer, stenotypist or recorder and certified as correct by him shall be deemed prima facie a correct statement of such proceedings. R132, Sec. 3. Rights and obligations of a witness. — A witness must answer questions, although his answer may tend to establish a claim against him. However, it is the right of a witness:

(1) To be protected from irrelevant, improper, or insulting questions, and from harsh or insulting demeanor; (2) Not to be detained longer than the interests of justice require; (3) Not to be examined except only as to matters pertinent to the issue;

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

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Special thanks to classmates for the case doctrines (4) Not to give an answer which will tend to subject him to a penalty for an offense unless otherwise provided by law; or (5) Not to give an answer which will tend to degrade his reputation, unless it to be the very fact at issue or to a fact from which the fact in issue

would be presumed. But a witness must answer to the fact of his previous final conviction for an offense. R132, Sec. 4. Order in the examination of an individual witness. — The order in which the individual witness may be examined is as follows;

(a) Direct examination by the proponent; (b) Cross-examination by the opponent; (c) Re-direct examination by the proponent; (d) Re-cross-examination by the opponent.

R132, Sec. 5. Direct examination. — Direct examination is the examination-in-chief of a witness by the party presenting him on the facts relevant to the issue. R132, Sec. 6. Cross-examination; its purpose and extent. — Upon the termination of the direct examination, the witness may be cross-examined by the adverse party as to many matters stated in the direct examination, or connected therewith, with sufficient fullness and freedom to test his accuracy and truthfulness and freedom from interest or bias, or the reverse, and to elicit all important facts bearing upon the issue. R132, Sec. 7. Re-direct examination; its purpose and extent. — After the cross-examination of the witness has been concluded, he may be re-examined by the party calling him, to explain or supplement his answers given during the cross-examination. On re-direct-examination, questions on matters not dealt with during the cross-examination, may be allowed by the court in its discretion. R132, Sec. 8. Re-cross-examination. — Upon the conclusion of the re-direct examination, the adverse party may re-cross-examine the witness on matters stated in his re-direct examination, and also on such other matters as may be allowed by the court in its discretion. R132, Sec. 9. Recalling witness. — After the examination of a witness by both sides has been concluded, the witness cannot be recalled without leave of the court. The court will grant or withhold leave in its discretion, as the interests of justice may require. R132, Sec. 10. Leading and misleading questions. — A question which suggests to the witness the answer which the examining party desires is a leading question. It is not allowed, except:

(a) On cross examination; (b) On preliminary matters; (c) When there is a difficulty is getting direct and intelligible answers from a witness who is ignorant, or a child of tender years, or is of feeble

mind, or a deaf-mute; (d) Of an unwilling or hostile witness; or (e) Of a witness who is an adverse party or an officer, director, or managing agent of a public or private corporation or of a partnership or

association which is an adverse party. A misleading question is one which assumes as true a fact not yet testified to by the witness, or contrary to that which he has previously

stated. It is not allowed. R132, Sec. 11. Impeachment of adverse party's witness. — A witness may be impeached by the party against whom he was called, by contradictory evidence, by evidence that his general reputation for truth, honestly, or integrity is bad, or by evidence that he has made at other times statements inconsistent with his present, testimony, but not by evidence of particular wrongful acts, except that it may be shown by the examination of the witness, or the record of the judgment, that he has been convicted of an offense. R132, Sec. 12. Party may not impeach his own witness. — Except with respect to witnesses referred to in paragraphs (d) and (e) of Section 10, the party producing a witness is not allowed to impeach his credibility.

A witness may be considered as unwilling or hostile only if so declared by the court upon adequate showing of his adverse interest, unjustified reluctance to testify, or his having misled the party into calling him to the witness stand.

The unwilling or hostile witness so declared, or the witness who is an adverse party, may be impeached by the party presenting him in all respects as if he had been called by the adverse party, except by evidence of his bad character. He may also be impeached and cross-examined by the adverse party, but such cross-examination must only be on the subject matter of his examination-in-chief. R132, Sec. 13. How witness impeached by evidence of inconsistent statements. — Before a witness can be impeached by evidence that he has made at other times statements inconsistent with his present testimony, the statements must be related to him, with the circumstances of the times and places and the persons present, and he must be asked whether he made such statements, and if so, allowed to explain them. If the statements be in writing they must be shown to the witness before any question is put to him concerning them. R132, Sec. 14. Evidence of good character of witness. — Evidence of the good character of a witness is not admissible until such character has been impeached. R132, Sec. 15. Exclusion and separation of witnesses. — On any trial or hearing, the judge may exclude from the court any witness not at the time under examination, so that he may not hear the testimony of other witnesses. The judge may also cause witnesses to be kept separate and to be prevented from conversing with one another until all shall have been examined. R132, Sec. 16. When witness may refer to memorandum. — A witness may be allowed to refresh his memory respecting a fact, by anything written or recorded by himself or under his direction at the time when the fact occurred, or immediately thereafter, or at any other time when the fact was fresh in his memory and knew that the same was correctly written or recorded; but in such case the writing or record must be produced and may be inspected by the adverse party, who may, if he chooses, cross examine the witness upon it, and may read it in evidence. So, also, a witness may testify from such writing or record, though he retain no recollection of the particular facts, if he is able to swear that the writing or record correctly stated the transaction when made; but such evidence must be received with caution. R132, Sec. 17. When part of transaction, writing or record given in evidence, the remainder, the remainder admissible. — When part of an act, declaration, conversation, writing or record is given in evidence by one party, the whole of the same subject may be inquired into by the other, and when a detached act, declaration, conversation, writing or record is given in evidence, any other act, declaration, conversation, writing or record necessary to its understanding may also be given in evidence. R132, Sec. 18. Right to respect writing shown to witness. — Whenever a writing is shown to a witness, it may be inspected by the adverse party.

B. AUTHENTICATION AND PROOF OF DOCUMENTS R132, Sec. 19. Classes of Documents. — For the purpose of their presentation evidence, documents are either public or private.

Public documents are: (a) The written official acts, or records of the official acts of the sovereign authority, official bodies and tribunals, and public officers,

whether of the Philippines, or of a foreign country; (b) Documents acknowledge before a notary public except last wills and testaments; and (c) Public records, kept in the Philippines, of private documents required by law to the entered therein.

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Special thanks to classmates for the case doctrines All other writings are private.

R132, Sec. 20. Proof of private document. — Before any private document offered as authentic is received in evidence, its due execution and authenticity must be proved either:

(a) By anyone who saw the document executed or written; or (b) By evidence of the genuineness of the signature or handwriting of the maker.

Any other private document need only be identified as that which it is claimed to be. R132, Sec. 21. When evidence of authenticity of private document not necessary. — Where a private document is more than thirty years old, is produced from the custody in which it would naturally be found if genuine, and is unblemished by any alterations or circumstances of suspicion, no other evidence of its authenticity need be given. R132, Sec. 22. How genuineness of handwriting proved. — The handwriting of a person may be proved by any witness who believes it to be the handwriting of such person because he has seen the person write, or has seen writing purporting to be his upon which the witness has acted or been charged, and has thus acquired knowledge of the handwriting of such person. Evidence respecting the handwriting may also be given by a comparison, made by the witness or the court, with writings admitted or treated as genuine by the party against whom the evidence is offered, or proved to be genuine to the satisfaction of the judge. R132, Sec. 23. Public documents as evidence. — Documents consisting of entries in public records made in the performance of a duty by a public officer are prima facie evidence of the facts therein stated. All other public documents are evidence, even against a third person, of the fact which gave rise to their execution and of the date of the latter. R132, Sec. 24. Proof of official record. — The record of public documents referred to in paragraph (a) of Section 19, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by his deputy, and accompanied, if the record is not kept in the Philippines, with a certificate that such officer has the custody. If the office in which the record is kept is in foreign country, the certificate may be made by a secretary of the embassy or legation, consul general, consul, vice consul, or consular agent or by any officer in the foreign service of the Philippines stationed in the foreign country in which the record is kept, and authenticated by the seal of his office. R132, Sec. 25. What attestation of copy must state. — Whenever a copy of a document or record is attested for the purpose of evidence, the attestation must state, in substance, that the copy is a correct copy of the original, or a specific part thereof, as the case may be. The attestation must be under the official seal of the attesting officer, if there be any, or if he be the clerk of a court having a seal, under the seal of such court. R132, Sec. 26. Irremovability of public record. — Any public record, an official copy of which is admissible in evidence, must not be removed from the office in which it is kept, except upon order of a court where the inspection of the record is essential to the just determination of a pending case. R132, Sec. 27. Public record of a private document. — An authorized public record of a private document may be proved by the original record, or by a copy thereof, attested by the legal custodian of the record, with an appropriate certificate that such officer has the custody. R132, Sec. 28. Proof of lack of record. — A written statement signed by an officer having the custody of an official record or by his deputy that after diligent search no record or entry of a specified tenor is found to exist in the records of his office, accompanied by a certificate as above provided, is admissible as evidence that the records of his office contain no such record or entry. R132, Sec. 29. How judicial record impeached. — Any judicial record may be impeached by evidence of: (a) want of jurisdiction in the court or judicial officer, (b) collusion between the parties, or (c) fraud in the party offering the record, in respect to the proceedings. R132, Sec. 30. Proof of notarial documents. — Every instrument duly acknowledged or proved and certified as provided by law, may be presented in evidence without further proof, the certificate of acknowledgment being prima facie evidence of the execution of the instrument or document involved. R132, Sec. 31. Alteration in document, how to explain. — The party producing a document as genuine which has been altered and appears to have been altered after its execution, in a part material to the question in dispute, must account for the alteration. He may show that the alteration was made by another, without his concurrence, or was made with the consent of the parties affected by it, or was otherwise properly or innocent made, or that the alteration did not change the meaning or language of the instrument. If he fails to do that, the document shall not be admissible in evidence. R132, Sec. 32. Seal. — There shall be no difference between sealed and unsealed private documents insofar as their admissibility as evidence is concerned. R132, Sec. 33. Documentary evidence in an unofficial language. — Documents written in an unofficial language shall not be admitted as evidence, unless accompanied with a translation into English or Filipino. To avoid interruption of proceedings, parties or their attorneys are directed to have such translation prepared before trial.

C. OFFER AND OBJECTION R132, Sec. 34. Offer of evidence. — The court shall consider no evidence which has not been formally offered. The purpose for which the evidence is offered must be specified. R132, Sec. 35. When to make offer. — As regards the testimony of a witness, the offer must be made at the time the witness is called to testify.

Documentary and object evidence shall be offered after the presentation of a party's testimonial evidence. Such offer shall be done orally unless allowed by the court to be done in writing. R132, Sec. 36. Objection. — Objection to evidence offered orally must be made immediately after the offer is made.

Objection to a question propounded in the course of the oral examination of a witness shall be made as soon as the grounds therefor shall become reasonably apparent.

An offer of evidence in writing shall be objected to within three (3) days after notice of the unless a different period is allowed by the court.

In any case, the grounds for the objections must be specified. R132, Sec. 37. When repetition of objection unnecessary. — When it becomes reasonably apparent in the course of the examination of a witness that the question being propounded are of the same class as those to which objection has been made, whether such objection was sustained or overruled, it shall not be necessary to repeat the objection, it being sufficient for the adverse party to record his continuing objection to such class of questions. R132, Sec. 38. Ruling. — The ruling of the court must be given immediately after the objection is made, unless the court desires to take a reasonable time to inform itself on the question presented; but the ruling shall always be made during the trial and at such time as will give the party against whom it is made an opportunity to meet the situation presented by the ruling.

The reason for sustaining or overruling an objection need not be stated. However, if the objection is based on two or more grounds, a ruling sustaining the objection on one or some of them must specify the ground or grounds relied upon.

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Special thanks to classmates for the case doctrines R132, Sec. 39. Striking out answer. — Should a witness answer the question before the adverse party had the opportunity to voice fully its objection to the same, and such objection is found to be meritorious, the court shall sustain the objection and order the answer given to be stricken off the record.

On proper motion, the court may also order the striking out of answers which are incompetent, irrelevant, or otherwise improper. R132, Sec. 40.Tender of excluded evidence. — If documents or things offered in evidence are excluded by the court, the offeror may have the same attached to or made part of the record. If the evidence excluded is oral, the offeror may state for the record the name and other personal circumstances of the witness and the substance of the proposed testimony. RULE 133: Weight and Sufficiency of Evidence R133, Sec. 1. Preponderance of evidence, how determined. — In civil cases, the party having burden of proof must establish his case by a preponderance of evidence. In determining where the preponderance or superior weight of evidence on the issues involved lies, the court may consider all the facts and circumstances of the case, the witnesses' manner of testifying, their intelligence, their means and opportunity of knowing the facts to which there are testifying, the nature of the facts to which they testify, the probability or improbability of their testimony, their interest or want of interest, and also their personal credibility so far as the same may legitimately appear upon the trial. The court may also consider the number of witnesses, though the preponderance is not necessarily with the greater number. R133, Sec. 2. Proof beyond reasonable doubt. — In a criminal case, the accused is entitled to an acquittal, unless his guilt is shown beyond reasonable doubt. Proof beyond reasonable doubt does not mean such a degree of proof, excluding possibility of error, produces absolute certainly. Moral certainly only is required, or that degree of proof which produces conviction in an unprejudiced mind. R133, Sec. 3. Extrajudicial confession, not sufficient ground for conviction. — An extrajudicial confession made by an accused, shall not be sufficient ground for conviction, unless corroborated by evidence of corpus delicti. R133, Sec. 4. Circumstantial evidence, when sufficient. — Circumstantial evidence is sufficient for conviction if:

(a) There is more than one circumstances; (b) The facts from which the inferences are derived are proven; and (c) The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.

R133, Sec. 5. Substantial evidence. — In cases filed before administrative or quasi-judicial bodies, a fact may be deemed established if it is supported by substantial evidence, or that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion. R133, Sec. 6. Power of the court to stop further evidence. — The court may stop the introduction of further testimony upon any particular point when the evidence upon it is already so full that more witnesses to the same point cannot be reasonably expected to be additionally persuasive. But this power should be exercised with caution. R133, Sec. 7. Evidence on motion. — When a motion is based on facts not appearing of record the court may hear the matter on affidavits or depositions presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions.

G. Presentation of Evidence