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Colegio de la Purisima Concepcion

School of Criminology
Review Class 2007

REVIEW NOTES
In
CRIMINAL EVIDENCE

By: Atty. Soteo Gardose

Evidence - is defined as the means, sanctioned by the rules of court, of ascertaining in a judicial
proceeding the truth respecting a matter of fact.
“Matter of fact” - refers to a matter, the existence of which is determined by the sense, or by
reasoning based upon the evidence.
Fact in issue – means (a) all facts which, by the form of the pleadings in any action, are affirmed on
one side, and denied on the other; or (b) if there be no pleadings, or no issue is joined between the parties,
all facts from which the existence, non-existence, nature or extent of any right, liability or disability
asserted or denied in any such case would by law follow.

Distinction between factum probandum and factum probans:

1. Factum probandum refers to the proposition which is to be established; the factum probans refers
to the material that will establish the proposition.
2. The former is hypothetical that one party affirms and the other denies which the court has not yet
committed in either direction; the latter is conceived of as existent, and is offered as such for the
consideration of the tribunal submitted as a reality to convince the tribunal that the former is a
reality.
3. The rules of evidence shall be the same (1) in all courts, whether inferior or superior courts, and
(2) on all trials and hearings, whether civil or criminal (Sec. 2, Rule 128).

Types or kinds of evidence:

1. Direct, cumulative, circumstantial and corroborative evidence
2. Judicial and extra-judicial evidence
3. Positive and negative evidence
4. Prima facie and conclusive evidence
5. Primary (Best) and Secondary evidence

Direct or positive evidence – is that which proves the fact in dispute directly without need of any
inference or presumption. It true, it will be conclusive of the disputed fact.
Cumulative evidence – is that additional evidence of the same kind, and to the same state of facts. Its
admission is within the discretion of the trial court except in a case where corroboration is necessary. It
verifies or repeats the direct evidence already obtained.
Indirect or circumstantial evidence – is that which tends to establish a fact by proving another fact.
It does not of itself conclusively establish a disputed fact, but merely creates an inference or presumption
of its existence. By showing other facts the ultimate fact sought to be established is sustained.
Circumstantial evidence has no direct bearing on the facts in issue.
Corroborative evidence – is the additional evidence of a different character to the same point. While
it has no direct bearing on the facts in issue, it reflects on other facts from which logical inferences may
be drawn as to the very facts in issue.
Judicial evidence – includes all testimony given by witnesses in court, all documents produced and
read by the court, and all tings personally examined by the court for the purpose of proof.
Extra-judicial evidence – includes all evidential facts which are known to the courts only by way of
inference from some form of judicial evidence.
Positive evidence - is that where the witness states that an event happened or that a thing exists.
Negative evidence – is that where the witness states that he did not see or does not know of the
happening of the event or the existence of the thing.
Prima facie evidence – is that which, standing alone, unexplained or uncontradicted, is sufficient to
establish the fact; and, if not rebutted, remains sufficient for that purpose.
Conclusive evidence – is that which the law does not allow to be contradicted, as in the case of a
conclusive presumption. It may also refer to evidence which is so strong as to overwhelm all other
evidence to the contrary or that which is so convincing as to amount to a demonstration and is
incontrovertible.

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Primary or best evidence – is that which affords the greatest certainty of the fact in question.
Example: A deed or other written instrument is primary evidence of its contents.
Secondary evidence – is that which is inferior to a primary evidence, and which upon its face shows
that better evidence exists. Example: A copy of a written instrument or the recollection of a witness as to
its contents.

Requirements before evidence may be admissible:

(1) Evidence must be relevant to the issues of the cases; and
(2) It must be competent, that is, not excluded by the rules on evidence (Sec. 3, Rule 128).

Evidence to be relevant must throw light upon, or have a logical relation to the facts in issue to be
established by one party or disproved by the other.
Evidence is competent when it is not excluded by any of the rules of evidence such as when it is
hearsay or because it is not the best evidence which is within the power of a party to produce.

Kinds or classes of admissibility:

1. Multiple admissibility – is one where an act which is admissible for one purpose is admitted
for other purposes; or where a fact which is entirely admissible so far as some rules are concerned is
excluded because it fails to satisfy some other rules. Example: Even if the confession of the accused
may not be competent as against his co-accused because it is hearsay to the latter, or to prove
conspiracy between them without the conspiracy being established by other evidence, the same is
nevertheless, admissible as evidence of the declarant’s own guilt, and should be admitted as such.
2. Conditional admissibility – may happen that some facts may be inadmissible when they are
presented but may be relevant only because they have some connection with other facts not yet
presented. Such facts may be admitted conditionally. Example: The court may admit conditionally
the confession of the co-accused to prove conspiracy provided the prosecution should assure that it
will present other evidence that such confession has connection therewith.
3. Curative admissibility – may happen that one may offer evidence which is inadmissible but
which is admitted because there is no objection from the opposite party. The latter is not justified in
introducing a reply to the same kind of evidence, if properly objected to, unless its needed to erase the
unfavorable inference which might otherwise have been caused from the original evidence.

Matters that need not be proved:

1. Judicial notice,
2. Judicial admissions.

Judicial notice – is defined as the cognizance of certain facts which judges may properly take and act
on without proof because they already know them.

Requisites of judicial notice:

1. The matter must be of common and general knowledge.
2. The matter must be will and authoritatively settled and not doubtful or uncertain.
3. The matter must be known to be within the limit of the jurisdiction of the court.

Matters that do not need the introduction of evidence because they are taken mandatory judicial notice
by the court (Section 1, Rule 129):
1. The existence and territorial extent of states, their forms of government and symbols of
nationality.
2. The law of nations.
3. The admiralty and maritime courts of the world and their seals.
4. The political constitution and history of the Philippines.
5. The official acts of the legislative, executive and judicial departments of the Philippines.
6. The laws of nature.
7. The geographical divisions and political history of the world.

Judicial admissions – are defined as consisting of statements made by the parties in the course of
judicial proceedings. They include admissions in pleadings, or in the course of a trial or other
proceedings. They may be in the form of oral or written admissions.

Forms or sources of evidence:

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1. Object evidence
2. Documentary evidence
3. Testimonial evidence

Object (Real) evidence – is that which is addressed to the sense of the tribunal such as objects
presented to the court for inspection. It consists of tangible things submitted for inspection which enable
the court by the direct use of its senses to perceive facts about those things in evidence. It includes the
examination of a party in a suit, physically or mentally, and the view of the court of premises or property
concerning which a controversy exists.Examples: Bullets, knives, jewels, etc., submitted for inspection
to enable the judge thru his senses to perceive facts about them.
Documentary evidence – is that which is supplied by written instruments, or derived from symbols
by which ideas are represented on material substances. Examples: Letters, will, deed, or contract.

Some rules in documentary evidence:

1. Best evidence rule
2. Parol evidence rule

Best evidence rule - means that no evidence shall be received which is merely substitutionary in its
nature, so long as the original evidence can be had. This rule is adopted to prevent fraud as the failure to
produce the best evidence will give rise to an unfavorable inference that the party is withholding it
because it would not support his claim.

What constitutes original document:

1. The original of a document is one the contents of which are the subject of inquiry;
2. 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.
3. 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.

Original copy (primary)- Other copy (secondary)-

1. First paper written on (1) handwritten duplicates if not

2. Duplicate original or signed simultaneously
Facsilimile (2) typewritten duplicates if
3. Carbon copies (if signed not signed simultaneously
on top without removing (3) photostatic, Xerox, blue print,
the carbon paper) white print, tape records,
transcripts

A duplicate original - is a signed carbon copy or duplicate of a document executed at the same time
with the original and may be introduced in evidence without accounting for the non-production of the
original.
Secondary evidence – is, as an exception to the best evidence rule, that which is inferior to primary
which from necessity, in some cases, is substituted for stronger and better proof.

Exception to the best evidence rule:

1. When the original has been lost or destroyed
2. When the original is in the possession of the adverse party
3. When the original is a record in the custody of a public officer- its contents may be proved
by a copy certified by the custodian thereof;
4. When the original is recorded in existing public record (Sec. 7)- its contents may be proved
by a copy certified by the custodian thereof;
5. When the original consists of voluminous accounts or documents.

Requisites before introduction of secondary evidence of the lost or destroyed original writing:
1. Proof of due execution of lost or destroyed original through testimony of: (a) person or
persons who executed it; (b) person before whom whom its execution was executed
2. Sufficiency of proof of loss or destruction by any person who knew the fact of loss or
destruction.

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After due execution of a document has been proved, together with the fact that the same has been
lost or destroyed, its contents may be proved:
1. by a copy of said document, or
2. by a recital of its contents in some authentic document, or
3. by the recollection of witnesses.

Elements of possession by adverse party as an excuse for non-production of original:

1. That the original is in the possession, or more broadly speaking under the control of the opponent.
2. That demand or notice is made to him by the proponent, signifying that the document will be
needed.

Parol evidence rule- means that when the terms of an agreement have been reduced to writing, it is to
be considered as containing all such terms, and therefore there can be, between the parties and their
successors in interest, no evidence of the terms of the agreement other than the contents of the writing.

Exceptions to the parol evidence rule:

1. Where there is a mutual mistake or imperfection in the written agreement

a. .Where the writings fail to express the true intent and agreement of the parties- e.g. where it is
shown that such a conveyance has been executed to secure the payment of money, equity will
treat it as a mortgage.
2. Where the validity of the agreement is put in issue by the pleadings- it may be shown by parol
evidence that a contract was in fact made for an illegal consideration or was otherwise illegal in its
inception.
3. When there is an intrinsic ambiguity in the writing.

Distinctions between parol evidence rule and best evidence rule:

1. The first precludes or prohibits varying the terms of a writing, while the second prohibits the
introduction of inferior evidence where better evidence is available.
2. The first is a rule of substantive law (materiality) rather than evidence, while the second goes
into the form in which evidence of a document is introduced to the court.
3. Where a copy of a document is offered to prove the terms of a writing the parol evidence rule
can not be invoked, while best evidence rule applies to all kinds of writings.
Testimonial evidence – is the testimony given in court or the deposition by one who has observed
that to which he is testifying; or one who, though he has not observed the facts is nevertheless qualified to
give an opinion relative to such facts.
A witness - is a person whose statements and declaration under oath are made on an oral examination,
or by deposition or affidavit.
General qualification of a witness: All persons who, having organs of sense, can perceive, and by
perceiving, can make known their perception to others, may be witnesses. Neither parties nor other
persons interested in the case shall be excluded nor those who have been convicted of crime; nor any
person on account of his opinion on matters of religious belief. Qualification of witnesses must exist at
the time of utterance of the testimony, because it is at that time that they are needed.
Who can testify in court: Only qualified witnesses may testify, that is, they must be competent.
Competency of a witness to testify: The word competency is not the same as credibility and
sufficiency. Competency deals entirely with legal capacity, for the testimony of a witness may be
unworthy of the belief and standing and is insufficient and yet receivable, if the witness has legal capacity
to testify.

The test of a witness’ competency:

1. capacity to perceive
2. capacity to make known his perception to others

Disqualifications of witnesses to testify:

1. Disqualification by reason of mental and physical incapacity
2. Disqualification by reason of interest or relationship such as: (a) dead man statute or
survivorship; (b) marital; and (c) parental and filial privilege.
3. Disqualification by reason of privileged communication such as: (a) that of a husband and wife;
(b) that of an attorney and client; (c) that of a physician and patient; (d) that of minister/priest and
penitent; (e) communications made to public officers in official confidence the disclosure of
which would prejudice public interest.

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Mental disqualification - those who are found of unsound mind at the time of their production as
witness.
Physical disqualification - children who appear to the court to be of such tender age and inferior
capacity as to be incapable of receiving correct impressions of the facts respecting which they are
examined. The intelligence, not the age of the young child, should be the test of his competency as a
witness.
Dead man statute or survivor disqualification - parties or assignor of parties to a case, or persons in
whose behalf a case 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. This is more applicable in civil cases.
Marital disqualification - during their marriage a husband cannot be examined for or against his
wife without her consent; nor a wife for or against her husband without his consent, escept: (1) In a civil
against by the husband against the wife or vice-versa (2) In a criminal case for a crime committed by one
against the other or against his or her direct descendants or ascendants.

Requisites of marital disqualification:

1. The spouse must be legally married;
2. Either spouse must be a party to the case.
3. The case is not one against the other.

Parental and Filial privilege - no person may be compelled to testify against his parents, other direct
ascendants, children or other direct descendants. Under this rule there are three important aspects which
must be taken into consideration in connection with the prohibition to wit:
1. The descendant has the choice whether or not to testify against his parents or ascendants.
2. The privilege of the descendant not to be compelled to testify against his ascendants can be
invoked only in a criminal case but not in a civil case
3. The parents or ascendants can be compelled to testify for or against their descendants.

Disqualification by reason of privileged communications:

1. The husband or wife during the marriage or afterwards, 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 the latter’s direct descendants or
ascendants.
2. 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 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.
3. A person authorized to practice medicine, surgery or obstetrics cannot, in civil cases, without
the consent of the patient, be examined as to any information which they 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 character of the patient.
4. A minister or priest cannot, without the consent of the person making the confession, be
examined as to any confession made to him in his professional capacity in the course of discipline
enjoined by the church to which he belongs.
5. 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.
6. Privilege of publisher, editor or reporter: The publisher, editor or duly accredited reporter
of any newspaper, magazine or periodical of general circulation can not 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 interest of the State, (now security of the
State).

Distinctions between privileged marital communication and marital disqualification:

1. In the first, the privilege is applicable whether they are parties or not in a case; whereas in the
second, it is applicable only when one or both spouses are parties.
2. In the first, privilege applies to testimony on confidential communications only; whereas in
the second, it applies to testimony in any fact.

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3. In the first, privilege remains even after death of spouses; whereas in the second, it ceases
after dissolution of marriage.
4. In the first, privilege exists whether case is criminal or civil; whereas in the second, it does
not apply in a civil cases.

Admission - is any statement of fact made by a party against his interest or unfavorable to the
conclusion for which he contends or is inconsistent with the facts alleged by him.

Elements/requisites for admission to be admissible:

1. It must relate to a relevant fact
2. It must be offered in evidence against the party making it

Classification of admission:
1. Judicial, or those made on the record, or in connection with the judicial proceeding in which it is
offered
2. Extra-judicial, or those made elsewhere, irrespective of time, place, or to whom made.

Compromise - is a contract whereby the parties, by making reciprocal concessions, avoid a litigation
or put an end to one already commenced.
Offer to compromise - is an offer made by the accused to the offended party or prosecution under
some consideration or condition with the end in view of avoiding litigation or putting an end to one
already commenced. In criminal cases, it may be received in evidence against the accused as an implied
admission of guilt. It is allowed in civil cases.
A plea of guilty to a lesser offense – is one, with the consent of the offended party and the public
prosecutor, made by the accused before the court pleading guilty to the offense one degree lower than that
which is charged against him. It is not admissible in evidence against the accused who made the plea or
offer in case such is not admitted.
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 EXCEPT if the offer is upon the
condition that the offended party shall desist from or withdraw criminal action already commenced and in
which case it may be received in evidence against the accused as an implied admission of guilt.

Some rules to remember in testimonial evidence:

1. Res inter alios acta rule (admission by third party)
2. Hearsay rule
3. Opinion rule
4. Character evidence rule

“Res inter alios acta” (Admission by third party) – is a rule which means that the rights of a party
cannot be prejudiced by an act, admission, declaration, or omission of another.

Exceptions to “res inter alios acta” rule:

1. Admission by co-partner
2. Admission by agent
3. Admission by joint owner or debtor or one jointly interested
4. Admission by conspirator
5. Admission by privies

Requirements before admission by the partner may be admissible against his co-partner or
agent:
1. That the partnership or agency be established by evidence other than the act or declaration sought
to be introduced
2. That the act or declaration be within the scope of the partnership or agency
3. That the partnership or agency be in existence at the time of the act or declaration

The reason for the rule why admission by the party is admissible against his co-partner or agent is
because they are identified in interest and that each is agent for the other.

Requirements before admission by conspirator may be given in evidence against his co-
conspirator:
1. The conspiracy is properly established by independent evidence
2. The admission is made during the course of the conspiracy

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3. The admission relates to some matter involved in the conspiracy itself

This rule applies only to extrajudicial acts or declaration. It does not apply to testimony given on the
witness stand where the defendant has the opportunity to cross examine the declarant.

Requirements before admission by privies may be admissible in evidence:

1. The act, declaration or omission must qualify or affect the title of the property;
2. The act, declaration or omission must have occurred during the continuance of the actor’s interest;
3. The rule is only co-extensive with the identity of interest.

Privies - 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.

Classes of privies:
1. Privies by blood, such as heir to the ancestor;
2. Privies in representation, such as executors and administrators to the deceased;
3. Privies by estate, such as between donor and donee, lessor and lessee;
4. Privies in respect of contract
5. Privies on account of estate and contract together

Admission by silence – is a presumed fact that may be received in evidence against a party if he does
nor says nothing upon an act or declaration made in his presence and within his hearing or observation
when such 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.

Factors to be considered in order that the silence of a party may be taken as an admission:
1. Whether the silent person hears and understands the settlement;
2. Whether the truth of the facts embraced in such utterance is within the knowledge of the silent
person;
3. Whether the circumstances are such as to afford the silent person an opportunity to act and speak
freely,
4. Whether the statement is made under circumstances and by such person as naturally to call for a
reply

In criminal cases, the basis of this rule is that the natural reaction of one accused of the commission of
a crime or of the implication therein is to deny the accusation if it is unjust or unfounded.

Confession - is a categorical acknowledgment of guilt made by an accused in a criminal case, without

any exculpatory statement or explanation and may be given in evidence against him.

Classes of confession:
1. Judicial confession - is defined as a confession made before a committing magistrate or in a court
in the due course of legal proceedings. It is a plea of guilty made before a committing magistrate or in
open court to an indictment or information when the accused is arraigned for trial.
2. Extra-judicial confession - is one made elsewhere than before a magistrate or in court.

Requisites of admissibility of a confession:

1. The confession must in the first place be made by the defendant in the case and the admission
of a third person is not available to the defendant as a confession of the former.
2. It must be incriminating to the extent of admitting liability. It is not enough that it admits the
overt act and at the same time sets up a justification.
3. The confession must be sufficiently certain to identify the crime and the criminal but need not
in terms state the time and place to which it refers.
4. The confession must be complete in itself and the entire statement must be put in evidence in
justice to the defendant as well as to the government.
5. The statement must be voluntary. This means that the statement must be free and
uninfluenced by inducement, threat or under influence.

Confession need not be under oath as there is no provision of law which nullifies confession or
admissions as competent evidence unless made under oath. Confessions need not be sworn to before an

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officer authorized to administer oath in order to be admissible or of probative value, as even oral
declaration, if voluntarily made, are competent.

Distinctions between admission and confession:

1. Admission is a statement of fact which does not involve an acknowledgment of guilt or

liability as in the case of confession.
2. An admission may be express or tacit while a confession must be express.
3. Admission may be made by third person and in certain cases, are admissible against a party
while confession can be made only by the party himself and, in some instances, are admissible against
his co-accused.

Hearsay - has been defined as evidence which derives its value, not solely from the credit to be given
to the witness upon the stand, but in part from the veracity and competency of some other persons. It is
not admissible in evidence.
The reason for the exclusion of hearsay evidence is that it is designed to preserve the right of parties
to cross-examine the original witness or person claiming to have knowledge of the transaction or
occurrence.
Hearsay rule – is a rule which provides that a witness can testify only on those facts which he knows
of his personal knowledge, that is, which are derived from his own perception.

Exceptions to the hearsay rule:

1. Dying declaration;
2. Declaration against interest;
3. Statements about matters of public or general interest, or common reputation;
4. Statements as part of the res gestae;
5. Entries in the course of business or in the performance of duty;
6. Official written statements; and
7. Books and maps;
8. Testimony at a former trial or proceeding.

Dying declaration or sometimes referred to as ante mortem statement- is that made by the victim of a
homicide as to material facts concerning the cause and circumstances of the killing, and which is uttered
under a fixed belief that death is impending and is certain to follow immediately, or in a very short time,
without an opportunity for retraction and in the absence of all hopes of recovery.

Conditions of admission of dying declaration:

1. That death be imminent and that declarant be conscious of that fact;

2. That the declaration relates to the facts or circumstances pertaining to the fatal injury or
death;
3. That the subject matter be such competent to testify to, and that, therefore, the declaration
must relate to facts only, and not to the declarant’s opinion or conclusion.
4. That the declaration be offered in a criminal case where the declarant’s death is the subject of
inquiry.

Statement as part of res gestae – is a statement 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 the 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.
Res gestae- literally means, “thing done”, and includes the circumstances, facts and declarations
incidental to the main fact or transaction necessary to illustrate its character. It is so connected therewith
as to constitute a part of the transaction.

The basis for the admission of declarations under the res gestae is the well founded belief that
statements made instinctively at the time of a specific transaction or event, without the opportunity for
formulation of statement favorable to one’s own cause are likely to cast important light upon the matter in
issue.

Kinds of statement as part of res gestae:

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1. Spontaneous exclamations, and

2. Statements accompanying an equivocal act or verbal act.

Requisites of spontaneous exclamation as part of res gestae as an exception to hearsay rule:

1. Statements must have been made while a startling occurrence is taking place or immediately
prior or subsequent thereto;
2. Such statements must be spontaneous, and;
3. Such statements must relate to the circumstances of the startling occurrence.

Illustrations of spontaneous exclamation:

-The exclamation of the driver, referring to approaching truck before collision, “look at the fool on
the wrong side of the road” is admissible as part of res gestae.
-The exclamation of a street car motorman when his car was ten or fifteen feet distant from the
automobile in dangerous position: “I am going to hit them, my brakes won’t work”, is admissible as part
of res gestae.
-The testimony that just before collision a bystander called, “stop”, is part of res gestae.
-The victim’s statement immediately after receiving the wounds naming the accused as the author of
the aggression is legal evidence as part of res gestae.
-The statement of one of the accused owing responsibility for the crime, made to the Chief of Police
who approached the combatants during the fight, forms part of res gestae and carries much weight.
-The statement of the wounded victim made in the course of the incident, when he was taken by his
captors after which he was last heard of until his body was found, forms part of the res gestae.

Requisites of admissibility of utterance accompanying verbal act as part of res gestae as an

exception to hearsay rule:

1. The act to be characterized by the words must be independently material to the issue;
2. The act must be equivocal;
3. The words must aid in giving legal significance to the act; and
4. The words must accompany the act.

Illustrations of verbal acts:

-Declarations of a grantor made at the time of the execution of a deed as to the consideration are
admissible to prove the consideration of the deed.
-Declarations of a testator made at the time he executed and delivered an instrument alleged to be a
codicil are a part of the res gestae.
-Statements made by a party at the time of payment of rent which accompany the act of payment are
part of the res gestae and admissible in evidence to explain the character of the transaction.
-But declaration of a party to a contract as to the terms thereof are inadmissible in evidence as part of
the res gestae., when made after the contract is completed.

Distinctions between dying declaration and res gestae:

1. In dying declaration, a sense of impending death takes the place of an oath, and the law regards the
declarant as testifying, while in res gestae, it is the event itself which speaks.
2. Dying declarations are confined to matters occurring after the homicidal act, while res gestae may
precede, or accompany, or follow, as events occurring as part of the principal act.

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 involving the same parties and subject
matter, may be given in evidence against the adverse party who had the opportunity to cross-examine
him.

Requisites for admissibility of testimony at a former trial:

1. The testimony was rendered in a former case between the same parties relating to the same matter;
2. The witness is dead, out to the Philippines or unable to testify in the subsequent trial; and
3. The adverse party had an opportunity to cross-examine the witness

However, if the witness himself is available, he must be produced as if he were testifying de novo and
his testimony given at former trial is merely hearsay.

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In criminal cases, however, where the former case was civil and the second one criminal, the
testimony of a witness given in the former civil action is not admissible in the subsequent criminal action.
The rule in criminal case is more strict, that is, limited to a situation where the former case at which the
former testimony was rendered is also criminal case.
Opinion - in the law of evidence, is an inference or conclusion drawn by a witness from facts, some
of which are known to him and others assumed, or drawn from facts, which, although lending probability
to the inference, do not evolve it by a process, of absolutely necessary reasoning.
Opinion Rule - is a rule which proscribes the admission of the opinion of a witness.

Exceptions to the opinion rule:

1. Opinion of an expert witness regarding a question of science, art or trade when he is skilled
therein;
2. Opinion of an ordinary witness regarding the identity or handwriting of a person, when he has
knowledge of the person or handwriting;
3. Opinion of an intimate acquaintance respecting the mental sanity of a person, the reason for
the opinion being given;

Opinion evidence - means the testimony of a witness, given or offered in the trial of an action that the
witness is of the opinion that some fact pertinent to the case exists or does not exist, offered as proof of
the existence or non-existence of the fact.

Examples of opinion of a witness:

-Statement by non-experts that certain apparatus is defective;
-Statement of a witness that accident was caused by the negligence of the defendant;

Expert testimony - is the testimony of persons who are particularly skilled, learned, or experienced in
a particular art, science, trade, business, profession, or vocation, a thorough knowledge of which is not
possessed by men in general, in regard to matters concerned therewith.

Requisites for admissibility of opinion of expert witness:

1. That the subject under examination must be one where the court needs the aid of knowledge
or experience which can not be obtained from ordinary witnesses;
2. That the witness called as an expert must possess the knowledge, skill or experience needed
to inform the court in the particular case under consideration.

It is not enough that the witness belongs to the profession or calling to which the subject matter of the
inquiry relates; he must be qualified by further showing that he possess special knowledge as to the very
question on which he proposes to express an opinion.

Three factors in qualifying a person as an expert witness:

1. Training and education;
2. Particular, first hand familiarity with the facts of the present cases;
3. Presentation of the authorities or standards on which his opinion are based.

Character - is defined as that combination of properties, qualities or peculiarities which distinguishes one
person from others.
Character evidence - is not generally admissible, EXCEPTIONS:

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
in any reasonable degree the probability or improbability of the offense charged.

Burden of proof or onus probandi – is defined as the obligation imposed upon a party who alleges
the existence of a fact or thing necessary in the prosecution or defense of an action, to establish its proof.
In criminal prosecution, as in civil cases, the burden of proving affirmative defenses is upon the
defendant. In other words, where the defendant in a criminal prosecution relies upon a distinct
substantive matter to exempt him form punishment such as self-defense and absolve him from liability, he
has the burden of proving the same.

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Burden of evidence - is defined as that logical necessity which rests on a party at any particular time
during a trial to create a prima facie case in his own favor, or to overthrow one when created against him.

Distinctions between burden of proof and burden of evidence:

1. The burden of proof does not shift; once imposed, it remains. The burden of evidence may
shit to any extent, alternating between the parties as the exigencies of the trial requires;
2. The burden of proof is fixed by the pleadings. The burden of evidence has little if any
connection with them;
3. The burden of proof is a forensic necessity. The burden of evidence is a logical necessity
decided by the use of reason.

Presumption - is defined as an inference of the existence or non-existence of some fact which courts
are required or permitted to draw from the proof of other facts. It is an inference which common sense,
enlightened by human knowledge and experience, draws from the connection, relation, and coincidence
of facts and circumstances with each other

Classification of presumptions:
1. Presumption of law or praesumptiones juris et de jure;
2. Presumptions of fact or praesumptiones hominis.

Presumption of law - is a legal presumption that need not be pleased or proved if the facts on which
they are based are duly averred and established.
Presumption of fact - is a deduction which reason draws from a fact proved without an express
direction of law to that effect.

Classes of presumption of law:

1. Conclusive presumptions- those that are not permitted to be overcome by any proof to the
contrary.
2. Disputable presumptions- those which may be disputed, opposed, refused or rebutted. When
a rebuttable presumption arises, it continues until overcome by proof to the contrary, or by some
stronger presumption.
3. Quasi-conclusive presumptions- those that may not be rebutted by any evidence other than
those which specifically provided by law.

In case of conflicting presumptions, the weaker presumption should be deemed to be overcome by the
stronger. The presumption in favor of the regularity of official acts and judicial proceedings will
ordinarily prevail over that of identity of persons from identity of name.
In the case of two equal presumptions, one in favor of innocence and one in favor of guilt, the one in
favor of innocence is to be applied. In other words, a disputable presumption can not prevail against a
presumption of innocence.

Instances of conclusive presumptions:

1. Estoppel in pais - Wherever a party has, by his own declaration, act, or omission,
intentionally and deliberately led another to believe a particular thing true, and to act upon such
belief, he can not, in any litigation arising out of such declaration, act or omission, be permitted to
falsify it.

 Illustrations:
 -Estoppel from denying corporate existence of a corporation;
 -Estoppel to deny authority of agent;
 -Estoppel to deny valid title;
 -Estoppel to deny ownership of property;
 -Etc.

2. Estoppel against tenant - The tenant is not permitted to deny the title of his landlord at the
time of the commencement of the relation of landlord and tenant between them. Illustration-
Contract of lease between lessor and the lessee, the latter cannot deny title of the former.

Instances of disputable presumptions:

1. That a person is innocent of crime or wrong;
2. That an unlawful act was done with an unlawful intent;

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3. That a person intends the ordinary consequences of his voluntary act;

4. That evidence willfully suppressed would be adverse if produced;
5. 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 possesses, or exercises acts
of ownership over, are owned by him;
6. That a person acting in a public office was regularly appointed or elected to it;
7. That official duty has been regularly performed;
8. That a court, or judge acting as such, whether in the Philippines or elsewhere, was acting in
the lawful exercise of jurisdiction;

Presumption of innocence - to overthrow the presumption of innocence, the prosecution must

establish the accused’s guilt by proof beyond reasonable doubt or that degree of proof which produce
conviction in an unprejudiced mind.
Presumption of willful suppression of evidence – is a presumption to the effect that evidence
deliberately suppressed would be adverse if presented does not apply if the evidence claimed to be
presented is merely corroborative or is available to the other party.
Presumption of regular performance of duty – is a presumption accorded to public officers that in
the performance of their duties they have performed it regularly in the absence of proof to the contrary
but it cannot prevail over the constitutional presumption of innocence of the accused.
In order that the presumption of whoever is found in possession of stolen thing is the doer of a
wrongful act or taker of the stolen property, the following requisites must concur:

1. The crime was committed

2. It was committed recently
3. The stolen property was found in the possession of the defendant
4. The defendant is unable to explain his possession satisfactorily

Presentation of evidence-

Examination of witnesses – is the act of propounding questions to the witness presented in a trial or
hearing 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 answer of the witness shall be given orally.
Questions calling for conclusions of a witness or for conclusions of law should not be put.
Statements which are not in interrogative form, and which embody propositions of law, should not be
made to witnesses.

Rights and obligations of a witness:

1. To be protected from irrelevant, improper, or insulting questions and from harsh or insulting
demeanor;
2. Not to be detained longer than the interests of justice require;
3. Not to be examined except only as to matters pertinent to the issue;
4. Not to give an answer which will tend to subject him to penalty for an offense unless
otherwise provided by law;
5. Not to give an answer which will degrade his reputation, unless it be to the very fact at issue
or to a fact from which the fact in issue would be presumed. But a witness must answer to the fact of
his previous final conviction for an offense.
Order in the examination of a witness:
1. Direct examination by the proponent;
2. Cross examination by the opponent;
3. Re-direct examination by the proponent;
4. Re-cross examination by the opponent;

Leading questions - are those that suggest to the witness the answer which the examining party
desires and are not allowed during direct examination.

Instances when leading questions may be allowed during direct examination:

1. When the questions relate to preliminary matters.
2. When there is difficulty in getting direct and intelligible answers from the witness who
ignorant, or a child of tender years, or is a feeble-minded or deaf mute.
3. In the interrogation of an unwilling or hostile witness.

Ways of impeaching a witness of the adverse party:

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1. By contradictory evidence;
2. By evidence that his general reputation for truth, honesty or integrity is bad;
3. By evidence that he has made at another time statement inconsistent with his present testimony;
4. By evidence of his conviction of a crime, particularly when the same involves moral turpitude.

Impeaching own witness may not be allowed, exceptions:

1. In the case of hostile witness;
2. Where the witness is the adverse party or the representative of a judicial person which is the adverse
party;
3. Where the witness is not voluntarily offered but is required by law to be presented by the proponent.

Authentication and proof of documents-

Public documents- are those written acts or record of acts of the sovereign authority, of official
bodies and tribunals and public officers, legislative, judicial or executive, whether of the Philippines, or of
a foreign country, including public records kept in the Philippines of private writing notarized or
acknowledged before a notary public.

Kinds of public documents:

1. 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.
2. Documents acknowledged before notary public except last wills and testaments.
3. Public records, kept in the Philippines, of private documents required by law to entered
therein.

Private documents - are those every deed or instrument executed by a private person, without the
intervention of a notary public.
Proof of public documents: they are proved by the production of the books or records themselves or
by a copy certified by the legal keeper thereof.
Proof of private documents: Before any private document offered as authentic is received in
evidence, its due execution and authenticity must be proved either:
1. By testimony of anyone who saw the writing executed;
2. By evidence of the genuineness of the handwriting of the maker.

Proof of handwriting of a person: By any witness who believes it to be the handwriting of such
person because (a) he has seen the person write; or (b) he has seen the writing purporting to be his upon
which the witness has acted or been charged.
Judicial record - the record, official entry, or files of the proceedings in a court of justice, or of the
official act of a judicial officer in action, suit or proceedings.

Ways of impeaching judicial record:

1. By evidence of want of jurisdiction in the court or judicial officer in respect to the proceedings;
2. By evidence of collusion between the parties in the proceedings;
3. By evidence of fraud in the party offering the record in respect to the proceedings.

Offer and objection - any evidence which a party desires to submit for consideration of the court
must be formally offered, specifying the purpose for which it was offered. Only those which were
formally offered shall be considered by the court in the resolution of the case.
Offer of testimonial evidence - is made at the time the witness is called to testify.
Formal offer of documentary and object evidence - is made after a party’s testimonial evidence.
The offer may be done orally but more often, the offer is done in writing.
Objection to offer of testimonial evidence - must be made immediately at the time the witness is
called to testify and as soon as the grounds therefor become reasonably apparent.

Objection to offer of documentary evidence and other exhibit - must be made within 3 days after
notice of the offer in writing unless a different period is allowed by the court.
The ruling upon objection to offer - must be made immediately after the objection is made, unless
reasonable time is desired by the court to inform itself on the question presented.

Weight and sufficiency of evidence-

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Weight of evidence - is the probative value or credit given by the court in particular evidence
admitted to prove a fact in issue.

Preponderance of evidence - that degree of proof below “proof beyond reasonable doubt” which,
when taken in its entirety as adduced by one party is superior to that of the other. This is required in civil
cases.

Factors considered in determining preponderance of evidence:

1. All the facts and circumstances of the case;

2. Demeanor of the witnesses;
3. His intelligence, accuracy and opportunity for observation;
4. Their means and opportunity of knowing the facts to which they are to testify;
5. The probability/improbability of their testimony;
6. Their respective reliability;
7. Their respective interest or want of interest;
8. The number of witnesses produced.

Proof beyond reasonable doubt - that degree of proof which produces in the mind of an unprejudiced
person, that moral conviction that the accused did commit the offense charged. This is required in
criminal cases.

Substantial evidence - that amount of relevant evidence which a reasonable mind might accept as
adequate to justify a conclusion. This is required in administrative cases.

Corpus delicti - the body or substance of the crime; but, as applied to a particular offense, it means
the actual commission by someone of the particular crime charged.

Elements of corpus delicti:

1. That a certain result has been produced. E.g. a man died;

2. Some person is criminally responsible for the act; and
3. The accused need not necessarily be the doer of the act.

Circumstantial evidence - evidence which, without going directly to prove the existence of a fact,
gives rise to a logical inference that such fact does exist.

Sufficiency of circumstantial evidence to convict:

1. There is more than one circumstance;

2. The facts from which the inferences are derived must be proved;
3. The combination of all the circumstances is such as to produce a conviction beyond
reasonable doubt.

Perpetuation of testimony: The purpose is to perpetuate the testimony of witnesses for probable use
in a future case or in the event of further proceedings in the same case.

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