TSN - Rules On Evidence
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TsarrieUrsua2019 AMENDMENTS TO THE REVISED RULES ON EVIDENCE
RULE 128
GENERAL PROVISIONS
Section 1. Evidence defined. - Evidence is the means, sanctioned by these rules, of
ascertaining in a judicial proceeding the truth respecting a matter of fact. (1)
Section 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. (2)
Section 3. Admissibility of evidence. - Evidence is admissible when it is relevant to
the issue and not excluded by t he Constitution, the law or these Rules. (3a)
Section 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 the probability or improbability of the fact in issue. (4)
RULE 129
WHAT NEED NOT BE PROVED
Section 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, official acts of the legislative, executive
and judicial departments of the National Government of the Philippines, the laws of
nature, the measure of time, and the geographical divisions. (1a)
Section 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.
Section 3. Judicial notice, when hearing necessary. - During the pre-trial and the
trial, the court, motu proprio or upon motion, shall hear the parties on the
propriety of taking judicial notice of any matter.
Before judgment or on appeal, the court, motu proprio or upon motion, may take
judicial notice of any matter and shall hear the parties thereon if such matter is
decisive of a material issue in the case. (3a)
Section 4. Judicial admissions. - An admission, oral or written, made by the party in
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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 t he imputed admission was not, in fact, made. (4a)
RULE 130
RULES OF ADMISSIBILITY
A. OBJECT (REAL) EVIDENCE
Section 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. (1)
B. DOCUMENTARY EVIDENCE
Section 2. Documentary evidence - Documents as evidence consist of writings,
recordings, photographs or any material containing letters, words, sounds, numbers,
figures, symbols, or their equivalent, or other modes of written expression offered as
proof of their contents. Photographs include still pictures, drawings, stored images,
x-ray films, motion pictures or videos. (n)
Slide 18. This is a very important revision, because the traditional concept is when we
say documentary evidence, of course, it's a document not if they're writing something
in writing. But with this revision. It is no longer confined to documents or writings.
So this is a very, very substantial revision, it expanded the definition of documentary
evidence.
Slide 19. This revision is lifted from the Federal Rules of Evidence and also from the
Uniform Rules of Evidence (URE) of the United States proposed by the American Bar
Association.
The purpose of expanding the definition is to embrace in the broadest possible terms
every memorial that preserves written and spoken language, including recorded
sounds. For the longest time, even the SC and jurisprudence has repeatedly
acknowledged photographs or documentary evidence.
And you will see on this slide some of the decisions, the Supreme Court to that effect.
But now we are not limiting it just to what we can see, but also to what we hear,
because even sounds memorialized are now considered documentary evidence.
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Now, how will this revolutionize trial or litigation in our country. Most of us, those of us
who are involved in trials, always decry the delay occasioned to us by the absence of
originals, the original documents, but more so by the loss of these documents, through
some reasons, which are beyond our control, sometimes, even sometimes when
they're even in the falsity of the court.
So with this, we can already immediately guard against this, these delays this law says
now, with the introduction of this particular revision and the subsequent revisions
under this title.
1. Original Document Rule (Revised Title)
Slide 21. This is what we knew as the best evidence rule. But even then, the best
evidence rule was always problematic, because both judges and litigants often
confuse the best evidence rule with another group, that parol evidence rule.
For example, a document is being presented and a witness is being asked about the
document instead of saying, “Objection, Your Honor, on the basis of the best evidence
rule”, sometimes counsel will raise the objection of violation of the parol evidence rule
or vice versa. No. So there was confusion there. But here, the very, very heart of this rule
is that the fourth one is that if you have reduced your agreement in writing, to give me
the original of that right theme, because that is the best evidence of your agreements.
That is because of the requirement of trustworthiness or reliability.
So it is a bit of a misnomer to call it best evidence because when you speak of best
evidence, we're actually not talking about all types of evidence there are three you
have documentary, object evidence, you have testimonial evidence. So this is really just
the best document evidence rule, because it only refers to documents and that is why
the SC has deemed it best not to call it by the proper nomenclature and that is the
original document rule to avoid confusion.
The original document rule applies only when the contents of the document are in
question, that they are the very issue or at the core of the case. And so if that is the
issue, then the Court naturally would want to see the original of that document. And
now you have to look at it, not just confined to paper or to written documents, as I said,
this will now include videos, and other and other recordings, even your drawings.
Slide 22. Some quotes from jurisprudence that are still good even with the change in
the nomenclature, the original document rule. It applies only when the contents of the
document are the subject of the inquiry. If the issue is, “Was the document actually
executed, or does it exist?” then there is no question or issue as to the contents of the
document, the original document rule will not apply.
Slide 23.
Section 3. Original document must be produced; exceptions. - When the subject
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of inquiry is the contents of a document, writing, recording, photograph or other
record, no evidence is admissible other than the original document itself, except in
the following cases:
a. When the original is lost or destroyed, 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, or the original cannot be obtained by local judicial processes or
procedures;
c. When the original consists of numerous accounts or other documents which
cannot be examined in court without great loss of time and the fact sought to
be established from them is only the general result of the whole;
d. When the original is a public record in the custody of a public officer or is
recorded in a public office; and
e. When the original is not closely-related to a controlling issue. (3a)
But there are exceptions to this rule now. And these exceptions were already existing
under the old provision that we have revised. The revisions that we're referring to the
addition of the recordings of photographs or other records.
What are these exceptions? The first is when the original is lost or destroyed or cannot
be produced in court without any bad faith on the part of the offeror.
The next one is when the original is in the custody of the adversary. But here, the Court
added another exception, the addition is underscored at the bottom of the page, it
says “or the original cannot be obtained by local judicial processes or procedures”. This
is only a recognition of jurisprudence that we already have, that if the document or the
documentary evidence is in a foreign jurisdiction in our processes cannot secure them,
then there is a ground or a justifiable cause for the introduction of secondary evidence.
The Court only recognized that rule, which is it has memorializing its decisions and
now they have already included it as part of paragraph B.
Slide 24. C refers to numerous or voluminous documents. And then we have a
specialist provision about this later on. And then letter D, when the original is a public
record, of course in the hospital of a public officer, and then the Court added letter E,
when the original is not closely related to a controlling issue. This is a new provision
letter E.
Why did the court add this exception when the original is not closely related to a
controlling issue. This is what is referred to as a collateral matter. From the general
provisions from rule one to eight collateral evidence on collateral matters are
prohibited because they're not relevant. Relevance is number one then competence. If
you're not relevant, because it's a collateral matter then it should not be admitted. But
here, there are also collateral matters which are admissible under the same section in
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rule 128. If they tend to any degree now to prove the probability or improbability of the
fact that an issue then collateral matters may be admitted to so this particular
exception refers to collateral matters. When the original is not closely related to a
controlling issue, this should be read in conjunction with section four of rule 128.
Slide 25. These are just explanations, some examples of the exceptions that I have
mentioned. I've mentioned the jurisprudence handed SC, which is now
institutionalized in addition to that particular paragraph.
Slide 26-27.
Section 4. Original of document. –
a. An“original”ofadocumentisthedocumentitselforanycounterpartintendedtohaveth
esame effect by a person executing or issuing it. An “original” of a photograph
includes the negative or any print therefrom. If data is stored in a computer or
similar device, any printout or other output readable by sight or other means,
shown to reflect the data accurately, is an “original.”
b. A “duplicate” is a counterpart produced by the same impression as the original, or
from the same matrix, or by means of photography, including enlargements and
miniatures, or by mechanical or electronic re-recording, or by chemical
reproduction, or by other equivalent techniques which accurately reproduce the
original.
c. A duplicate is admissible to the same extent as an original unless (1) a genuine
question is raised as to the authenticity of the original, or (2) in the circumstances,
it is unjust or inequitable to admit the duplicate in lieu of the original. (4a)
Here we have a very important revision, what we consider the original of a document
and then side by side with what we have revised, we will read it the original of a
document is the document itself. The very document that was executed the contents
of which are in issue, that's the original document.
Now we go to the next part, which is the important revision it says or any counterpart
intended to have the same effect by the person executing or issuing it. For the longest
time, we've known that carbon copies are intended to be originals also. So the carbon
copy is a counterpart of the original. In fact, it is covered by paragraph B of the old
provision, when a document is in two or more copies executed at or about the same
time. It is also intended to be an original.
If we continue to the revised provision, An “original” of a photograph includes the
negative or any print therefrom. If data is stored in a computer or similar device, any
printout or other output readable by sight or other means, shown to reflect the data
accurately is an “original.” Where did we get this provision? If you recall your rules on
electronic evidence, we have that phrase functional equivalent.
So you have the original and then you have a functional equivalent, for example, you
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have your document in your computer, that's your original and then you send it to
someone by email, and then you generate a printout that is a functional equivalent.
And so in the case of Maliksi versus Comelec, the flash cards which stored the images
of the ballots, we're considered as anything out from that flashcard they were
considered by the Supreme Court as functional equivalence of the actual ballots,
which were cast by the voters. So that is the important revision in this particular
section A.
Let's go to Section B, A “duplicate” is a counterpart produced by the same impression
as the original, or from the same matrix, or by means of photography, including
enlargements and miniatures, or by mechanical or electronic re-recording, or by
chemical reproduction, or by other equivalent techniques which accurately reproduce
the original.
This is really just a detailed version of paragraph B of the old provision, taking into
account the advances in technology.
Paragraph C refers to a duplicate which is admissible to the same extent as an
original. These are our restrictions, if there is a genuine question raised as to the
authenticity of the original or industry consensus that is unjust or inequitable
duplicate and you have the original then the duplicate will be inadmissible. General
rule duplicate is like an original, it is a counterpart it is admissible except in those two
instances.
Slide 28. The amendment in 4a does not modify the meaning of the existing rule, the
original document is still the one the original contents of which are the subject of the
inquiry. And even as amended that term original does not necessarily mean the first
writing recording or photographs are the same, but rather it refers to the writing,
recording or photograph that is an issue in the litigation. It now refers to the output
from a computer to print out under the rules on electronic evidence, and then
duplicate being equivalent to the original.
Slide 29. What are the kinds of original documents? First you have documents where
the contents are the subject of the inquiry, that's the basic concept of the original APA
document, we are retaining it and this is a post that I took from a decision of the
Supreme Court regarding an original document. Then letter B, a duplicate is an
original, it's considered an original that is also still retained and I referred to carbon
sheets, which is a classic example of the duplicate original
Slide 30. Then letter C, which is Entry is repeated in the regular course of business, one
being copied from another at or near the time of the transaction, all entries are
regarded as originals. This is still retained, but now we have it under the new Section 7
which is entitled summaries.
2. Secondary Evidence
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Section 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
or her part, may prove its contents by a copy, or by recital of its contents in some
authentic document, or by the testimony of witnesses in the order stated. (5a)
Slide 31. Section 5, when the original of a document is unavailable. The change in the
provision refers only to the addition of gender inclusive language, but it's basically still
the same. So this provision starts off the enumeration of secondary evidence, which
may be resorted to if the original of a document is no longer available or it could not be
produced in Court within a reasonable time.
What are these alternative evidence or secondary evidence? Well, you can produce/
prove it by a recital of its contents in some other authentic document, or by a copy, or
by the testimony of witnesses in the order stated in the rule. At the bottom I have for
you requisites to establish the loss of a document of the original document to justify
the addition of secondary evidence.
*The offeror must prove:
a. existence or due execution of the original;
b. loss/destruction of original or reason for non-production;
c. absence of bad faith on the part of the offeror;
Order of proof is: existence, execution, loss, and contents.
Section 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 or she
must have reasonable notice to produce it. If after such notice and after satisfactory
proof of its existence, he or she fails to produce the document, secondary evidence
may be presented as in the case of its loss. (6a)
Slide 32. Section 6. When the document is in the adverse parties costs of your control
again, the revisions refer only to gender inclusive language. And at the bottom, I have
for you the requisites again, for the introduction of secondary evidence.
You must prove that the original exists, the document is in the cost of your control of
your adversary, the adverse party was given reasonable notice through produced
originals, but the adverse party failed to produce it despite such notice, and despite
reasonable opportunity to produce it. In this particular case, during the hearing
counsel for the litigant, undertook to bring the particular documents in the custody of
his client to court but never did so. And that is why when the plaintiffs submitted the
photocopies in its offer of evidence, the trial court admitted the photocopies.
Section 7. Summaries. – When the contents of documents, records, photographs, or
numerous accounts are voluminous and cannot be examined in court without great
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loss of time, and the fact sought to be established is only the general result of the
whole, the contents of such evidence may be presented in the form of a chart,
summary, or calculation.
The originals shall be available for examination or copying, or both, by the adverse
party at a reasonable time and place. The court may order that they be produced in
court. (n)
Slide 33. This is an entirely new provision. But it speaks of when the contents of
documents, records, photographs, or numerous accounts are voluminous, as i've said
this is in essence, what used to be in Section 4, are voluminous and cannot be
examined in court without great loss of time and the facts sought to be established is
only the general result of the whole, then the contents of such evidence may be
presented in the form of a chart, summary or a calculation. The originals shall be
available for examination or copying, or both, by the adverse party at a reasonable time
and place. The court may order that they be produced in court.
This is a lift from federal rules of evidence. But to us this is just an elaboration on, or
some form of guidance to both the judges and the litigants that if the documents or
records are voluminous, and you really do not need to present all of them. But you just
want to present a conclusion based on all these documents. All you need to do is to
present to the Court in the form of a summary. It can be by way of a chart or a graph,
or calculations, the court in effect by adding this new provision is just giving guidance
on how to present evidence of this sort.
Slide 34. The succeeding sections, 8 and 9 are just renumbered because of the addition
of Section 7 on summaries, but there are no other changes.
3. Parol Evidence
Section 10. 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, as 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 o r she puts in issue in a
verified 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.
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The term “agreement” includes wills. (9a)
Slide 35. Now we go into the Parol Evidence Rule. Okay. And I mentioned this earlier, in
relation to the original evidence rule or the Best Evidence Rule because of the
confusion, right? Okay, what is the Parol Evidence Rule in essence? In essence, when
the terms or the agreement of the parties have been reduced to writing, there can be
no other evidence of such terms but that writing -- that is the essence of Parole
Evidence Rule. So you cannot introduce testimony to alter the terms or to add to it or
to subtract from it. Okay, so that is the essence of the Parole Evidence Rule. Now, there
is no change in this provision. This is the old Section 9, now it's Section 10. Except to
add gender inclusive language again, but we added the word verified, okay? So a
party may present evidence to modify, explain or add to the terms of the agreement, if
he or she puts in issue in a verified pleading, Now, the Supreme Court is particular, it
has to be a verified pleading. Normally, you raise it in your Answer, and the Answer is
verified, because not in all instances, only in specific instances. But if it has a
counterclaim, it is normally verified. The Supreme Court does not want to take that
chance. So the Supreme Court now explicitly requires that you do this or you make
these allegations in a verified pleading. Okay, and what are these things that you can
allege in order to justify the introduction of parol evidence? Well, we know the list. The
first is, you know, an intrinsic ambiguity imperfection in the drafting of the agreement
or a mistake in the drafting.
Slide 36. And then you have the failure of the agreement to express the true intent and
agreement of the parties.
Slide 37. And then the validity of the written agreement itself is put in issue or the
existence of other terms agreed upon after the execution of the written agreement. So
no change in the enumeration. The only change is to add the word “verified” to the
pleading.. Okay. Let's go to the next slide.
Okay, here. Oral testimony of a person who has an interest in the outcome of the case
may be presented and admitted in lieu of documentary evidence provided that the
existence of any of the following has been put in issue in a party's verified pleading, or
has not been objected to by the adverse party. All right. So you have the enumeration
there. And then letter B is if it serves as the basis of the conclusion proposed by the
presenting party, as exemplified in the case cited here, Spouses Paras vs. Quinoa
Construction and Development Corporation G.R. No. 171601, 8 April 2015. Right. Let's go
to the next slide.
Slide 38. Okay, still on Parol Evidence, the issue of admitting Parol Evidence is a matter
that is proper to the trial, not the appellate stage of the case, okay? So this objection
cannot be raised for the first time on appeal. It has to be raised at the earliest possible
time, because it is subject to waiver. The authorities actually say that this Parol
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Evidence Rule is limiting? Now, it impedes the search for the truth, because it is a
restriction. On the other hand, you weigh the sanctity of the contract between the
parties, because of the essence of the mutuality, we as much as possible, want to hold
the parties conclusively to the terms that they agreed upon. So it depends every time
to the discretion of the Court: Which of the two values should it give more -- should it
give more priority to? Let's go to the next slide.
4. Interpretation of Documents
Section 11. Interpretation of a writing according to its legal meaning. – The
language of a writing is to be interpreted according to the legal meaning it bears in
the place of its execution, unless the parties intended otherwise. (10)
Section 12. Instrument construed so as to give effect to all provisions. – In the
construction of an instrument, where there are several provisions or particulars, such
a construction is, if possible, to be adopted as will give effect to all. (11)
Section 13. Interpretation according to intention; general and particular
provisions. – In the construction of an instrument, the intention of the parties is to
be pursued; and when a general and a particular provision are inconsistent, the latter
is paramount to the former. So a particular intent will control a general one that is
inconsistent with it. (12)
Section 14. Interpretation according to circumstances. – For the proper
construction of an instrument, the circumstances under which it was made,
including the situation of the subject thereof and of the parties to it, may be shown,
so that the judge may be placed in the position of those whose language he or she is
to interpret. (13a)
Section 15. Peculiar signification of terms. – The terms of a writing are presumed to
have been used in their primary and general acceptation, but evidence is admissible
to show that they have a local, technical, or otherwise peculiar signification, and were
so used and understood in the particular instance, in which case the agreement
must be construed accordingly. (14)
Section 16. Written words control printed. – When an instrument consists partly of
written words and partly of a printed form, and the two are inconsistent, the former
controls the latter. (15)
Section 17. Experts and interpreters to be used in explaining certain writings. –
When the characters in which an instrument is written are difficult to be deciphered,
or the language is not understood by the court, the evidence of persons skilled in
deciphering the characters, or who understands the language, is admissible to
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declare the characters or the meaning of the language. (16)
Section 18. Of two constructions, which preferred.– When the terms of an
agreement have been intended in a different sense by the different parties to it, that
sense it to prevail against either party in which he or she supposed the other
understood it, and when different constructions of a provision are otherwise equally
proper, that is to be taken which is the most favorable to the party in whose favor the
provision was made. (17a)
Section 19. Construction in favor of natural right. – When an instrument is equally
susceptible of two interpretations, one in favor of natural right and the other against
it, the former is to be adopted. (18)
Section 20. Interpretation according to usage.– An instrument may be construed
according to usage, in order to determine its true character. (19)
Slide 39-44. Okay, so the succeeding slides refers to interpretation of documents.
These are just renumbered provisions. And if there are any changes, they only refer to
gender inclusiveness. So we can go through the succeeding slides, until you get the
letter C testimonial evidence, there are no changes in those provisions, except to
include gender inclusive language. Okay, let's go to the slide on testimonial evidence.
C. TESTIMONIAL EVIDENCE
1. Qualification of Witnesses
Section 21. Witnesses; their qualifications. – All persons who can perceive, and
perceiving, can make known their perception to others, may be witnesses. (20a)
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.
(20)
[Section 21. Disqualification by reason of mental incapacity or immaturity.
(Deleted)]
Slide 46. So now we go to the qualification of witnesses. This is a renumbered
provision. Okay. So we start with Section 21. The first provision is, of course, witnesses
enter their qualifications, okay. That's basic. So all persons who can perceive and
perceiving can make known their perception to others may be witnesses. There's no
change in that. But we just renumbered it, now it's Section 21. Okay.
Slide 47. Now, the old Section 21 was the disqualification by reason of mental
incapacity or immaturity. And it had reference to those whose mental condition or
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their immaturity, under the old rules, were considered to be not capable of intelligently
communicating their perceptions. All right, so the Court has deemed it proper to
delete this in step with jurisprudence and the international trend. No. So you see there
are some quotes from our own jurisprudence regarding mental retardation as not
affecting credibility of a witness as long as the testimonies are coherent. In the same
manner, because of the rule and the examination of child witnesses, every child is now
presumed to be qualified as a witness.
Section 22. Testimony confined to personal knowledge. – A witness can testify
only to those facts which he or or she knows of his or her personal knowledge; that is,
which are derived from his o r her own perception. (36a)
Slide 48. Okay, let's go to the next slide okay. So, this is important not because of the
change because the change here is only for gender inclusive language. But this is the
very basis for anyone's capacity to testify so a witness can testify only to those facts,
which he or she knows of his or her own personal knowledge and derived from his or
her own perception, okay. So this is very important, because although there is very
little revision to this provision, the concept is now changing. Okay, we are changing
the concept drastically.
Slide 49. Okay, so now, this used to be the old concept of hearsay. Before, if a person
testifies on something which is not based on his personal knowledge, the objection
that will be raised is, “Objection, the testimony is hearsay or the statement is hearsay.”
But here, the Supreme Court has thought it best to refer to this provision by its correct
way. And the objection is lack of firsthand knowledge. The testimony is not based on
one's personal knowledge so you lack firsthand knowledge - that is now the new
concept of “hearsay”, we no longer call it “hearsay,” because “hearsay” now will refer to
something else, which I will explain in the in the succeeding slides, okay. So, please
remember this is very important. So, the old concept of hearsay word testimony is
not based on one's own personal knowledge or one's own perception is done away
with. Now, we call it lack of firsthand knowledge. Because the requirement is that
the witness must specify only as to those facts, which are based on his or her own
personal knowledge or his or her own perception. Now, what is this independently
relevant statement? Under our own concept of hearsay, a witness may testify on
matters which were related to him or her by another individual. So the objection
usually to that kind of testimony is hearsay, because it's not based on that witness's
personal knowledge --- which is WRONG, because it is still based on the witness's
personal knowledge as told to him or to her by the third person. So, that is what we
used to call as an independently relevant statement. It is admissible, it is proof of what
the third person told the witness, but it is not proof of the truth of what the third
person really to the witness. And that is what we know, as an independently relevant
statement.
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Slide 50. I have a quote from the decisions of the Supreme Court, if you will look at the
first line, it says evidence is hearsay when its probative force depends in whole or in
part on the competency and credibility of some persons other than the witness by
whom it is sought to be produced, so that line now is no longer in accord with our shift
from calling this hearsay to now calling it lack of firsthand knowledge. Okay, so this is
no longer hearsay -- in the traditional sense. If this comes up now, your objection is
lack of firsthand knowledge. But the rest of the quote still applies. So if the purpose of
placing the statement on the record is merely to establish the fact that the statement
or the tenor of such statement was made, then it is admissible. Now, we're referring to
an independently relevant statement as existing, regardless of the truth or falsity of a
statement, when what is relevant is the fact that such statement has been made. So
that still applies. That is still good jurisprudence (Espineli v. People, G.R. No. 179535,
June 9, 2014, citing Republic v. Heirs of Felipe Alejaga, G.R. No. 146030, December 3,
2002). Now, let's go to the next sections.
Section 23. Disqualification by reason of marriage. – During their marriage, the
husband or the wife, cannot testify against the other without the consent of the
affected spouse, 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. (22a)
Slide 51. Now we have the disqualifications. The first is, of course, the marital
disqualification rule -- disqualification by reason of marriage. This is just a stylistic
change there. The Supreme Court will change the negative tenor of the old provision
which starts with “neither” so they just made it “cannot testify” to make it more active.
Right. Okay. Let's go to the Next slide please.
Slide 52. What are the reasons for the marital disqualification rule? Well, it is an identity
of interest, we refer to it also as a community of interest. And then of course, if one
were to testify against the other, they said danger is called perjury, because you are
partial naturally and of course, the policy of law to guard the security and sanctity of
private life. And then, of course, domestic tranquility is also superior. So, that is why, in
the decisions of the Supreme Court when that identity of interest or that community
of interest no longer exists, because of the strained relations between the parties, such
as if they had been separated in fact for a considerable period of time. Then the Courts
will no longer apply this disqualification as exemplified in the jurisprudence that is
cited there (Alvarez vs. Ramirez, G.R. No. 143439. October 14, 2005). Okay, let's go to the
next slide.
Section 24. Disqualification by reason of privileged communications. – The
following persons cannot testify as to matters learned in confidence in the following
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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 or person reasonably believed by the client to be licensed to engage
in the practice of law cannot, without the consent of the client, be examined as to
any communication made by the client to him or her or his or her advice given
thereon in the course of, or with a view to, professional employment, nor can an
attorney's secretary, stenographer, or clerk, or other persons assisting the attorney be
examined, without the consent of the client and his or her employer, concerning any
fact the knowledge of which has been acquired in such capacity, except in the
following cases:
(i) Furtherance of crime or fraud. If the services or advice the lawyer were sought
or obtained to enable or aid anyone to commit or plan to commit what the client
knew or reasonably should have known to be a crime or fraud;
(ii) Claimants through same deceased client. As to a communication relevant to
an issue between parties who claim through the same deceased client,
regardless of whether the claims are by testate or intestate or by inter vivos
transaction;
(iii) Breach of duty by lawyer or client. As to a communication relevant to an issue
of breach of duty by the lawyer to his or her client, or by the client to his or her
lawyer;
(iv) Document attested by the lawyer. As to a communication relevant to an issue
concerning an attested document to which the lawyer is an attesting witness; or
(v) Joint clients. As to a communication relevant to a matter of common interest
between two or more clients if the communication was made by any of them to a
lawyer retained or consulted in common, when offered in an action between any
of the clients, unless they have expressly agreed otherwise.
(c) A physician, psychotherapist or person reasonably believed by the patient to be
authorized to practice medicine or psychotherapy cannot in a civil case, without the
consent of the patient, be examined as to any confidential communication made for
the purpose of diagnosis or treatment of the patient’s physical, mental or emotional
condition, including alcohol or drug addiction, between the patient and his or her
physician or psychotherapist. This privilege also applies to persons, including
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members of the patient’s family, who have participated in the diagnosis or treatment
of the patient under the direction of the physician or psychotherapist.
A “psychotherapist” is:
(a) A person licensed to practice medicine engaged in the diagnosis or treatment
of a mental or emotional condition, or
(b) A person licensed as a psychologist by the government while similarly
engaged.
(d) A minister, priest or person reasonably believed to be so cannot, without the
consent of the affected person, be examined as to any communication or confession
made to or any advice given by him or her, in his or her 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 or after his or her tenure as to
communications made to him or her in official confidence, when the court finds that
the public interest would suffer by the disclosure.
The communication shall remain privileged, even in the hands of a third person who
may have obtained the information, provided that the original parties to the
communication took reasonable precaution to protect its confidentiality. (24a)
Slide 53. And then we have the disqualifications by reason of privileged
communications. We have several changes here, of course, you start again with the
husband and the wife, no change there. And then let's go to the attorney-client. An
attorney, or a person reasonably believed by the client, to be licensed to engage in the
practice of law. That is very important because the motivation of the client to divulge
or to disclose his or her secrets, is the belief that this person is a lawyer or is licensed to
practice law. So we have to protect the public, the general public, against those
unscrupulous individuals who assume our position and illegally practice law when they
should not, and that is why the Court deemed it best to include that particular change.
And towards the end of the provision, you have there, in addition to the stenographer
or clerk, or other persons assisting the attorney, it may be a paralegal, that is very, very
common nowadays - to have your paralegal assist you. And so these are the changes
in the attorney-client provision. And then now we have the exceptions, “except in the
following cases.” Now, we are very, very clear as to the exceptions. When will the
attorney-client privilege not apply? Okay, can we go to the next slide, please?
Slide 54. So before we go to the exceptions, these are just quotes to explain or
underscore the importance of the attorney-client privilege. Let me just very quickly
refresh your memories about the Doctrine of Absolute Privilege. If you remember, in
that landmark case of Tolentino vs. Baylosis, G.R. No. L-15742, January 31, 1961). I think
it's a 1909 Case, the Supreme Court first discussed the doctrine of absolute privilege. In
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that case of Tolentino vs. Baylosis, the counsel was asking for attorneys fees in his
complaint, and in the Answer, the opposing counsel questioned the entitlement of the
counsel to the attorneys fees being prayed for and he said several things which were
libelous in nature. Now, the doctrine of absolute privilege protects our lawyer’s
statements, whether they be oral or in writing, for so long as they're in the context or in
the environment of a judicial proceeding. There is only one condition for the
protection: that the utterances be or the statements (oral or written) be relevant to the
issue. Okay, so that is the only limitation. But otherwise, everything that you say in the
context of a judicial proceeding is absolutely privileged. You cannot be sued civilly for
damages. And neither can you be sued criminally for libel. And, but of course, there is
the administrative case that can be filed against you which is what happened in the
case of the Tolentino vs. Baylosis, they were administratively reprimanded because of
the offensive language that they used against each other, but otherwise, that obtains
for judicial proceedings for all lawyers. Okay. Let's go to the next slide.
Slide 55. Now, we look at the first exception, when the lawyer-client privilege was not
applied. The first refers to the furtherance of crime or fraud -- if the services or advice
the lawyer were sought or obtained to enable or aid anyone to commit or plan to
commit what the client knew or reasonably should have known to be a crime or fraud.
Let's go to the next slide.
Slide 56. Crime or Fraud (“future crime-fraud exception”). This is very obvious. The
lawyer-client privilege should not be used as a shield for committing a crime or for
committing fraud. We are always reminded of how noble this profession is, certainly.
We should not use our profession to aid the formation of any crime or fraud and that is
why if a client seeks advice or ask the lawyer for any other form of assistance to further
a crime or any fraud, then the lawyers are no longer bound by the privilege. Okay, let's
go to the next slide.
Slide 57. The next exception is: claimants to the same deceased client -- As to a
communication relevant to an issue between parties who claim through the same
deceased client, regardless of whether the claims are by testate or intestate succession
or by inter vivos transaction. Okay, let's go to the next slide.
Slide 58. Now this applies to succession cases, an attorney-client privilege, of course,
survives the death of the client. But always in testate or intestate succession, what we
want to do is to distribute the estate as quickly as possible to the persons who were
really intended by the deceased or by the decedent to benefit from it. And so, there
will be no good purpose for using this privilege here to bar the lawyer from disclosing
what the details or intent of the decedent was. Okay, let's go to the next slide.
Slide 59. The third exception refers to breach of duty by the lawyer or client -- as to a
communication relevant to an issue of breach of duty by the lawyer to his or her vice
versa.
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Slide 60. This is what is called a “self-defense exception”. Now, of course, if your client
stops paying you and refuses to pay you your attorneys fees, you can bring a case to
collect your fees, then you will no longer be bound by this privilege. Because this is in
self-defense. This is considered akin to a self-defense exception, in the same manner if
you commit malpractice, your client also will no longer be bound by this privilege. No,
because the view is that there is already a waiver of the privilege because of the
allegations of breach of duty against a lawyer. Right, let's go to the next slide.
Slide 61-62. Now the fourth exception refers to documents attested by the lawyer -- as
to a communication relevant to an issue concerning an attested document to which
the lawyer is an attesting witness. L et's go to the next slide, please.
Slide 63. So this is really not an exception because the lawyer who acts as an attesting
witness is not really rendering professional legal services, you are just witnessing a
document and you knew by the lawyers or by your client’s request for you to be an
attesting witness, that your role in this particular instance is not as the counsel of your
client, but to witness the execution of a particular document. So, you know, that at any
time in the future, you may be called as an attesting witness to testify on its execution.
So, really, this is not an exception, but the Court deemed it prudent to include it here
for the guidance of the bench and the bar. Okay, let's go to the next slide.
Slide 64. Okay, this is the fifth exception: joint clients. -- as to a communication relevant
to a matter of common interest between two or more clients if the communication
was made by any of them to a lawyer retained or consulted in common, when offered
in an action between any of the clients, unless they have expressly agreed otherwise.
Slide 65. By the nature of engagement, these are joint clients. So it is understood that
they accept the risk that everything that they say to their lawyers will be shared with
the other clients. Unless, if you want to keep it confidential, then you have to state it
expressly -- there has to be an express reservation to that effect. Otherwise, this is the
presumption. All right. Okay, let's go to the next slide.
Slide 66-67. Okay. Now, this is an entirely new provision again. It refers to a physician, a
psychotherapist, actually we revised physician-patient privilege and added significant
provisions on psychotherapists. So, a physician, psychotherapist or person reasonably
believed by the patient to be authorized to practice medicine or psychotherapy cannot
in a civil case without the consent of the patient be examined as to any confidential
communication made for the purpose of diagnosis or treatment of the patient's
physical mental or emotional condition including alcohol or drug addiction -- between
the patient and the physician or psychotherapist. This privilege will also apply to
persons including members of the family of the patient who participated in diagnosis
or treatment under the direction of the said physician or psychotherapist. What is the
important provision here aside from adding the psychotherapist? The next slide just
shows you who may be considered a psychotherapist. Okay. Let's go to the next slide.
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Slide 68. Okay, so the important thing here, if you will remember the old
physician-patient privilege, there is a requirement. One of the requisites was that the
statements must stand to blacken the reputation. Okay, if you recall that, it's no longer
here. Okay, now, it's no longer important. What is important is that these disclosures
were made to you, these disclosures were made to a professional or someone who was
believed to be licensed to give diagnosis and treatment to the patient, and why is this
important? It is important because according to authorities, it goes to the basic
constitutional right to privacy, there can be no more personal or more intimate
disclosures than one that you make with your physician or psychotherapist, that is
according to the authorities. And so, you must encourage the most adequate
treatment and diagnosis. You must encourage free flowing information, but how can
you make those disclosures if you're afraid that at any given point in time, these
disclosures will be made public and that is why this is very very important. So, it should
not be tied to a requisite that only those information that will blacken the reputation of
the patient are prohibited. It covers all and any communications. All right. Let's go to
the next one.
Slide 69. The next one is what we used to know as the priest-penitent disqualification
or privilege. A minister, priest or person reasonably believed to be so cannot, without
the consent of the affected person, be examined as to any communication or
confession (this is important -- we added “any communication.” It's now no longer
limited to confessions. Why is that? Because if you go to the next slide..
Slide 70. The way that it was worded before, it was a little partial. It was obviously
referring to the Catholic faith because it referred to a confession, and it referred to a
priest. Okay, so now we're just using language that is more inclusive. And we also do
not want to limit it to a confession in the traditional sense that we understand what a
confession is. So now we're including any communication. Any communication, which
is confidential or intended to be confidential in nature, by a person through a minister
or a priest, in his professional character as a spiritual adviser, or it cannot be just any
spiritual adviser -- like you look up to a certain person and because of that kind of
relationship, you may say that disclosure was through a person who was your spiritual
adviser. There must also be some course of discipline enjoined by the church. So that
person has to be recognized also by the church by some course of discipline. The
important thing is that now we have made this provision more inclusive, at least in
language. Let's go to the next slide, please.
Slide 71. And of course, we have the public officer but here, the change that was done
was to clarify, so we added “after his or her tenure”, and instead of using the word
“term,”because they said that “tenure” is more inclusive, okay, and then you have the
second paragraph, the communication shall remain privileged, even in the hands of a
third person who may have obtained the information, provided the original parties to
the communication took reasonable precautions to protect its confidentiality. Why did
the Supreme Court add this paragraph? There is a danger that the original
communicants, the ones who were who were discussing are able to keep the
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confidentiality of, for example, state secrets, but then by some accident or through
other means beyond the control or without the knowledge of the original discussants,
there is a memorial of what was discussed and it gets into the hands of a third person.
And that is why because of the nature of these statements, and because of the public
interest that is invested in these types of communication, the Court thought to add
the last paragraph. Let's move to the next slide, please.
Other privileged matters:
a) Editors may not be compelled to disclose the source of published news;
b) Voters may not be compelled to disclose for whom they voted;
c) Trade secrets;
d) Information contained in tax census returns;
e) Bank deposits (pursuant to the Secrecy of Bank Deposits Act);
f) National security matters and intelligence information; and
g) Criminal matter. (Eagleridge Dev’t. Corp. v. Cameron Granville 3 Asset
Management, Inc., G.R. No. 204700, Nov. 24, 2014)
There is no provision of the Rules disqualifying parties declared in default from
taking the witness stand for non-disqualified parties. (Marcos v. Heirs of Navarro, G.R.
No. 198240, July 3, 2013)
Slide 72. Okay, other privilege matters, which we know from decisions of the Supreme
Court, let me just mention the first one: a) editors may not be compelled to disclose
the source of published news. In the draft of the proposed rules and proposed revisions
in the Rules on Evidence, there was a Section 26, which was called the
“journalist-source privilege,” which gave protection -- it is a shield law, which is very
common in the United States to protect the sources of our journalists and for very, very
obvious reasons, of course. But in the rules that came out as approved by the Supreme
Court en banc, Section 26 is no longer included. But I see no big problem with that.
Because anyway, in previous jurisprudence already by the Supreme Court, they have
acknowledged that there is a privilege in regard to the disclosure of the source of news
items, right? Okay, so let's go to the next slide.
Section 25. Parental and filial privilege. - No person shall be compelled to testify
against his or her parents, other direct ascendants, children or other direct
descendants, except when such testimony is indispensable in a crime against that
person or by one parent against the other. (25a)
Slide 73-74. Okay, so here we have the parental and filial privilege. We just added
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“except when such testimony is indispensable in a crime against that person or by one
parent against the other, which we already have, in the marital disqualification rule.
We're just making everything consistent. And it is also a nod to Article 315 of the Family
Code of the Philippines. Now in Lee vs. CA, the Court categorically ruled that a
stepmother can be compelled to testify against a stepdaughter because they are not
in the direct line of ascendants and descendants. And the other thing that we need to
remember is this is a privilege unlike the disqualification rule, meaning the one in
whose favor the privilege operates can waive it. Okay, so in certain decisions of the
Supreme Court, you have children, waived the privilege and take the stand against one
or the other parent. Alright, let's go to the next slide, please.
Section 26. Privilege relating to trade secrets. - A person cannot be compelled to
testify about any trade secret, unless the non-disclosure will conceal fraud or
otherwise work injustice. When disclosure is directed, the court shall take such
protective measure as the interest of the owner of the trade secret and of the parties
and the furtherance of justice may require. (n)
Slide 74. On Section 26, so privilege relating to trade secrets. Again, this is new, but this
is just to institutionalize what has already been long decided by the Supreme Court in
jurisprudence. So a person cannot be compelled to testify about any trade secret
unless a non-disclosure will conceal fraud or otherwise work injustice. When
disclosures is directed, the court shall take such protective measures as the interests of
the owner of the trade secret and of the parties and in the furtherance of justice. So we
are probably familiar with Air Philippines Corporation vs. Pennswell, Inc. (G.R. No.
172835, December 13, 2007), where this was extensively discussed by the Supreme
Court. So in cases like this, there is a balancing of interest again. On the one hand, you
have to recognize the property rights of the owner but on the other hand, you also
have to weigh the interests of the public. So again, this is a task for judges. Now, let's
go to the next slide.
Section 27. Admission of a party. - The act, declaration or omission of a party as to a
relevant fact may be given in evidence against him o r her. (26a)
Slide 75. Now we go to admissions and confessions. This is just a re numbered
provision, and we have a revision for gender inclusivity. Okay, and then at the bottom,
just as a reminder, what is an admission? It is any statement of fact made by a party
which is against his interest or which is unfair or unfavorable the conclusion for which
he contends or it is inconsistent with the facts alleged by him. Now to be admissible,
there are certain requisites. So it must involve matters of fact and not the law, it must
be categorical and definite, it must be knowingly and voluntarily made, and it has to
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be adverse to the speaker's interest -- that is the most important requirement, of
course, otherwise it would just be self serving. Okay, let's go to the next slide.
Section 28. 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. Neither is evidence of conduct nor statements made in
compromise negotiations admissible, except evidence otherwise discoverable or
offered for another purpose, such as proving bias or prejudice of a witness,
negativing a contention of undue delay, or proving an effort to obstruct a criminal
investigation or prosecution.
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.
A plea of guilty 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. Neither is any statement made in course of plea bargaining with the
prosecution, which does not result in a plea of guilty or which results in a plea of
guilty later withdrawn, admissible.
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. (27a)
Slide 76. Now we go to the offer of compromise. When is it admissible and when is it
not admissible? Okay, under Section 28, the revised provision, we’re talking about civil
cases first: neither is evidence of conduct or statements made in compromise
negotiations admissible except evidence otherwise discoverable are offered for
another purpose, such as proving bias or prejudice of a witness, negativing a
contention of undue delay, or proving an effort to obstruct a criminal investigation or
prosecution. Okay. So and then let's go to the next slide.
Slide 77. Okay, so here we also have an addition. Neither is any statement made in the
force of the bargaining with a prosecution, which does not result in a plea of guilty or
which results in a plea of guilty later withdrawn. It is also not admissible. So the next
slide -- I’ve summarized these rules for you. Okay, let's go to the next slide.
Slide 78. Okay. So offer of compromise in civil cases, generally not admissible -- not
admissible as an admission of any liability. Okay? When is it admissible, though? It is
admissible for other purposes, not as an admission of any liability, and then to negate
undue delay, in allegations of undue delay or non-prosequitur -- we can use it, or to
prove obstruction of criminal investigation or prosecution. So those are the limited
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purposes, when an admission of liability or or when admission, yes, of liability may be
used, or an admission may be used in civil cases. But the rule is not absolute. If a
party denies the existence of a death, but offers to be the same just to buy peace -- to
avoid litigation or to end litigation, that offer of settlement is inadmissible. That's the
classic concept. So, I am not admitting liability, but I will negotiate with you for a
compromise because I do not want to go to court anymore. Okay, there is no
admission of liability there. But in the course of our negotiations, I admit my
indebtedness to you, okay, and I make a proposal, “Can I pay this in six installments?”
That already is an admission of liability. Okay, so that rule is not absolute. Remember,
the general rule -- it's not an admission, okay. But if in expressed terms you admit the
liability and you even proposed to settle it, then this case of Tan vs. Rodil Enterprises
(G.R. No. 168071, December 18, 2006) tells us that that is already admissible. Okay, let's
go to the next slide.
Slide 80. Okay, now, we go to criminal cases. In criminal cases, except quasi offenses
and those allowed to be compromised, it is admissible as an implied admission of guilt.
So, we have the reverse here. In criminal cases, generally admissible as an implied
admission of guilt. When is it inadmissible? If the plea of guilty is withdrawn naturally.
Second, if the offer of plea of guilt to a lesser offense is not accepted, okay, the accused
offers to plead guilty to a lesser offense but the prosecution refuses to accept that
offer. So, there is no consequent plea of guilt or lesser offense. So you cannot use that
against him or if statements made during a plea bargain okay. And there is no please
of guilt which results or the feeling of guilt is later withdrawn. Okay. So then it is
inadmissible. Now, we have this case of San Miguel vs Kalalo, G.R. No. 185522, June 13,
2012, there was a letter Kalalo, who owed the money to. San Miguel. And in that letter,
she admitted her financial difficulties which resulted with the non-payment or the
non-funding of the checks. But that letter was sent before the preliminary
investigation and before a case could be filed in Court. So that is why the Court said
that cannot be considered an implied admission of guilt by that point. At that point in
time, there was no charge yet filed with the court. And then the other case refers to
letters which were sent by the accused who had killed the brother? No, he sent a letter
from jail to the brother apologizing and asking for forgiveness. Okay, let's go through
the next slide.
Section 29. Admission by third party. - The rights of a party cannot be prejudiced
by an act, declaration, or omission of another, except as hereinafter provided. (28)
Slide 81. It’s just renumbered, no change. And then let’s go to Section 30.
Section 30. Admission by co-partner or agent. - The act or declaration of a partner
or agent authorized by the party to make a statement concerning the subject, or
within the scope of his or her authority, and during the existence of the partnership
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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 part. (29a)
Slide 82. And then let's go to Section 30, which is admission by co-partner or agent.
There we go. The Supreme Court added the word “authorized,” -- the act or declaration
of a partner or agent authorized by the party and then the phrase to make a
statement concerning the subject. So these are really just clarifications, just details
added to make the provision clearer for us. Okay. And then Section 31 as well.
Section 31. Admission by conspirator. - The act or declaration of a conspirator in
furtherance of 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 of declaration. (30a)
Slide 83. The addition of the phrase ‘in furtherance” or an act or declaration of a fun
spirited third and leading to the conspiracy, but now it has to be in furtherance. So it
cannot just be anything relating to the conspiracy, it must be in furtherance of the
conspiracy. And then of course, we have the quote from Salapuddin vs. Court of
Appeals, G.R. No. 184681, February 25, 2013, where the Supreme Court acquitted former
congressman Salapuddin, because the only evidence against him were the statements
of his alleged co-conspirator., And so, of course, the Court said that, that cannot be
because there must be approval for the statement to see other than that statement,
right. Okay, let's go to the next slide.
Section 32. Admission by privies. - Where one derives title to property from another,
the latter’s act, declaration, or omission, in relation to the property, is evidence
against the former if done while the latter was holding the title. (31a)
Slide 84. Again, just clarification, the latter’s act and there is an addition, you must refer
to evidence against the former if done while the latter was holding the title,
clarification again. While this while the latter was still holding the title, next slide.
Section 33. Admission by silence. - An act or declaration made in the presence and
within the hearing or observation of a party who does or says notice 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 or her to do so, may be given in evidence against him or
her. (32a)
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Slide 85. Renumbered provision. It's section 33, admission by silence and then we have
some gender inclusive language added to it. Okay. So, here we have some quotes
(People vs. Castaneda, G.R. No. 208290, December 11, 2013; People v. Guillen, G.R. No.
191756, November 25, 2013) regarding admission by silence. Of course, it is founded on
the basic human instinct of survival. Now, if somebody accuses you of doing
something, then the natural instinct according to authorities is for you to defend
yourself. So, if you keep silent, the presumption is that you must be guilty or you must
have done it. So, that is the basis for this provision, right let's go to the next slide.
Section 34. Confession. - The declaration of an accused acknowledging his or her
guilt of the offense charged, or of any offense necessarily included therein, may be
given in evidence against him o r her. (33a)
Section 34 confession, no change except gender inclusive language. And then of
course, extrajudicial confessions are binding only on the confessant and cannot be
admitted against his co-accused except if there is for establishment of conspiracy by
evidence other than the confession again, you have the requisites there, let us go to
the next slide.
Slides 87-88. 4. Previous Conduct as Evidence.
Section 35. 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 or she did or did not do the same
or 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. (48a)
Section 36. Unacceptable 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. (49a)
We have renumbered provisions but no changes except for gender inclusive language.
So you have similar acts as evidence and then you have an unaccepted offer. We go to
the next slide where we talk about previous conduct of evidence.
Evidence that one did a certain thing at one time is admissible to prove that he did the
same or similar thing at another time. We will discuss this more in detail later when we
go to character evidence, but here, I have some examples for you: in Metrobank v.
Custodio, G.R. No. 17380, March 21, 2011, you have a cashier who was accused of being
responsible for a shortage in the bank’s total cash tally for the day. The bank sought to
use against the cashier the fact that she was transferred from a different branch, and
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while she was in that first branch, there was also a cash shortage which involved her.
The Court said no, you cannot do that because the fact that there was a cash shortage
during her stint in her prior branch does not prove that the cash shortage in either the
first branch or the present branch was caused by her, that she was responsible for the
same thing that happened in the first branch as she is responsible for the thing that
happened in the second branch. Plus, the Court also emphasized the fact that the
bank did not take action against this particular cashier, in fact the bank retained her
and even transferred her to another branch, so the Court said that that can’t be used
against the cashier.
Okay, so there at the bottom we have a quote applicable to criminal cases. Evidence is
not admissible when it shows, or tends to show, that the accused in a criminal case has
committed a crime independent from the offense for which he is on trial. A man may
be a notorious criminal, and may have committed many crimes, and still be innocent
of the crime charged on trial. (People v. Pineda, G.R. No. 141644, May 27, 2004) Let’s go
to the next slide please.
Slide 89. 5. Hearsay. Here we have the counterpart of the lack of first-hand knowledge
rule. Now, this is the new hearsay rule. This is very important. Again, for those of you
who may have missed the discussion earlier on the lack of first-hand knowledge, the
old or the traditional concept of hearsay in our jurisdiction has been changed, now we
refer to that, if you do not have personal knowledge of the facts you’re testifying to, or
if it’s not based on your own perception, then we now call it lack of first-hand
knowledge. We do not call it hearsay anymore, so what is hearsay? This is hearsay,
Section 37.
Section 37. Hearsay. - Hearsay is a statement other than one made by the declarant
while testifying at a trial or hearing, offered to prove the truth of the facts asserted
therein. A statement is (1) an oral or written assertion or (2) a non-verbal conduct of a
person, if it is intended by him or her as an assertion. Hearsay evidence is
inadmissible except as otherwise provided in these Rules.
A statement is not hearsay if the declarant testifies at the trial or hearing and is
subject to cross-examination concerning the statement, and the statement is (a)
inconsistent with the declarant’s testimony, and was given under oath subject to the
penalty of perjury at a trial, hearing, or other proceeding, or in a deposition; (b)
consistent with the declarant’s testimony and is offered to rebut an express or
implied charge against the declarant of recent fabrication or improper influence or
motive; or (c) one of identification of a person made after perceiving him or her. (n)
Hearsay is a statement other than one made by the declarant while testifying at a trial
or hearing, offered to prove the truth of the facts asserted therein. Anything that is
stated by the witness or declarant outside of a trial, that is now hearsay. I have a
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pending case now, the case, let’s say, is a civil case for damages. I am testifying in this
case. Everything that I stated outside this particular trial, according to Section 37, is
hearsay. So that’s the new concept. Let’s continue.
A statement is (1) an oral or written assertion, so it can be any oral or written assertion
by me outside this case or (2) it can even be non-verbal conduct, as long as I intended
it to be an assertion. What can be an example? For example, we were talking to each
other and then I kept on nodding. You were asking me questions. I was not answering
you orally. I was just nodding my head or I was shaking my head to signify my
agreement or disagreement. That can be non-verbal conduct, which I intend to be an
assertion.
A statement is not hearsay, this is the 2nd paragraph, if the declarant testifies at the
trial or hearing and is subject to cross-examination concerning the statement. So, we
are now here, we are trying this case on damages, and I am sitting on the witness
stand, and you can examine me, can you now confront me with any of those
statements I made outside this trial? Not all because we have to keep it relevant. We
have to confine it to the issues, alright? So what are the things you may bring up on
cross-examination? And it is listed there:
1. It consists of prior statements inconsistent with the declarant’s testimony, it was
given under oath subject to the penalty of perjury at a trial, hearing, or other
proceeding, or in a deposition. So this first one is a prior inconsistent statement.
Okay, under oath. First exception.
2. A statement which is consistent with the declarant’s testimony and is offered to
rebut an express or implied charge against the declarant of recent fabrication or
improper influence or motive. So for this one, consistent statements, but why the
need to bring this up if it’s consistent with my current testimony? Because, after
your testimony, there is an allegation or a charge that you were not telling the
truth or you have been influenced. For us to strengthen it, we will prove that no,
she’s actually telling the truth, no, she hasn’t been influenced. You can bring up
those prior consistent statements, right?
3. In a statement of identification of a person made after perceiving him or her.
This is very important. Why are we allowing this identification? You know how
long our trials take. And so our trials take a little bit, sometimes the identification
of a person, especially in criminal cases, takes a while. So, if my identification out
of court was made closer to the time the incident happened, that would have
more reliability, right, than my identification in court during this trial when
maybe three years have already lapsed from the time the incident happened. So
there’s more reliability on my memory during the earlier identification. And that
is why the Supreme Court thought of including this paragraph c.
Slide 90. New Hearsay Rule. So here in this next slide, we have the new concept of
hearsay. It is any out of court statement by the witness-declaration (the court calls it
“at-trial witness”, meaning in the context of this particular trial) not made during trial
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or hearing of this particular case. And what is a statement? It is any oral or written
assertion, or, as I mentioned, it can be any conduct intended as assertion. And what are
the exceptions? Again, I repeat, let’s recap:
1. Prior inconsistent statement under oath at a trial, hearing or other proceeding,
or in a deposition, to impeach (it can be used to impeach) the witness-declarant.
Remember, that’s the classic purpose for prior inconsistent statements: to
impeach. But you can also use the substantive proof, not limited to its utility in
impeaching the witness.
2. Prior consistent statement, as I explained but for limited purposes only: to rebut
“an express or implied charge against the declarant of recent fabrication, or
improper influence or motive”. Otherwise, as I said, we will just be introducing
repetitive evidence, superfluous already because it has been established by open
court testimony given by this witness, so what’s the use of introducing those
other consistent statements which were previously given?
3. Identification of a person made after perceiving the person.
Now, that’s the new hearsay rule. Let’s go to the next slide on dying declaration.
Slide 91. Exceptions to the Hearsay Rule.
Section 38. Dying declaration. - The declaration of a dying person, made under the
consciousness of an impending death, may be received in any case wherein his or
her death is the subject of inquiry, as evidence of the cause and surrounding
circumstances of such death. (37a)
Dead Man’s Statute: Requisites
a) the declaration must concern the cause and surrounding circumstances of the
declarant's death;
b) that at the time the declaration was made, the declarant is conscious of his
impending death;
c) the declarant was competent as a witness; and
d) the declaration is offered in a criminal case for Homicide, Murder, or Parricide where
the declarant is the victim. (People v. Palanas, G.R. No. 214453, June 17, 2015)
No change here, except for gender inclusivity, but I have the requisites of the dead
man’s statute there for your review. Not important to dwell on that at the moment.
Let’s go to the next slide.
Slides 92-93. Statement of decedent or person of unsound mind.
Section 39. Statement of decedent or person of unsound mind. - In an action
against an executor or administrator or other representative of a deceased person, or
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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, where a party or
assignor of a party or a person in whose behalf a case is prosecuted testifies on a
matter of fact occurring before the death of the deceased person or before the
person became of unsound mind, any statement of the deceased or the person of
unsound mind, may be received in evidence if the statement was made upon the
personal knowledge of the deceased or the person of unsound mind at a time when
the matter had been recently perceived by him or her and while his or her
recollection was clear. Such statement, however, is inadmissible if made under
circumstances indicating its lack of trustworthiness. (23a)
So here, the Court tried to make the provision clearer because if you read it as
presently or previously worded, it’s a bit confusing, so the Supreme Court tried to
restyle it. So now, they made those changes, and there was the addition of the phrase
“where a party or assignor of a party or a person in whose behalf a case is prosecuted”
just to clarify who is the party, or who is the person referred to in the previous
provision.
Any statement of the deceased or the person of unsound mind, may be received in
evidence if the statement was made upon the personal knowledge of the deceased or
the person of unsound mind at a time when the matter had been recently perceived
by him or her and while his or her recollection was clear. Such statement, however, is
inadmissible if made under circumstances indicating its lack of trustworthiness. So
we’re back to that very important condition of trustworthiness and reliability. In all of
these, always remember why we have rules on disqualifications, why we have rules on
hearsay, why all these rules qualifying testimonial evidence. Because the essence is
reliability, trustworthiness. As we said, in the hierarchy of evidence, when it comes to
weight, the testimony is below because it relies on human memory, which is very frail.
And that is why we have all these safeguards. So in this particular section, the Court
emphasizes the judge must always look at badges of unreliability because the
declarant is no longer around to be questioned.
Under the Dead Man's Statute Rule, "[i]f one party to the alleged transaction is
precluded from testifying by death, insanity, or other mental disabilities, the other
party is not entitled to the undue advantage of giving his own uncontradicted and
unexplained account of the transaction." Thus, the alleged admission of the deceased
xxx cannot be used as evidence against [him] as the latter would be unable to
contradict or disprove the same. (Garcia v. Vda. de Caparas, G.R. No. 180843, April 17,
2013) Next.
Slides 94-95. Declaration against interest.
Section 40. Declaration against interest. - The declaration made by a person
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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 the
declarant's own interest, that a reasonable person in his or her position would not
have made the declaration unless he or she believed it to be true, may be received in
evidence against himself or herself or his or her successors in interest and against
third persons. A statement tending to expose the declarant to criminal liability and
offered to exculpate the accused is not admissible unless corroborating
circumstances clearly indicate the trustworthiness of the statement. (38a)
No change, but there is an important addition at the end: “A statement tending to
expose the declarant to criminal liability and offered to exculpate the accused is not
admissible unless corroborating circumstances clearly indicate the trustworthiness of
the statement.” This is important because speaking for myself, I’d have several cases
where there are contrary declarations against interest by members of the family. They
want to save their child, they want to save their spouse, they want to save their parent
or a sibling, so they make these declarations against interest. So that is why the Court
deemed it wise to include this particular provision. Next slide will show you the
difference between the declaration against interest and an admission against interest.
A declaration against interest is made by a person who is neither a party nor in privity
with a party to the suit, admissible only when the declarant is unavailable as a witness.
While an admission against interest is made by a party to a litigation or by one in
privity with or identified in legal interest with such party, and is admissible whether or
not the declarant is available as a witness. (Lazado v. Agustin, G.R. No. 152364, April 15,
2010) Next slide please.
Slides 96-97. Act or declaration about pedigree.
Section 41. 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 or her by birth, adoption, or marriage, or, in the absence thereof, with whose
family he or she was so intimately associated as to be likely to have accurate
information concerning his or her pedigree, may be received in evidence where it
occurred before the controversy, and the relationship between the two persons is
shown by 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 facts occurred, and the names of the relatives. It embraces also facts of
family history intimately connected with pedigree. (39a)
Now we go to the act or declaration about pedigree, that should be “or”. The important
addition in here is that now we’re recognizing adoptive relationships, so we’re not
limiting ourselves to birth, or marriage, or consanguinity and affinity, we added
adoption here. And we also said that in the absence of a person who is related by birth,
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adoption, or marriage, then someone who is intimately associated with the family and
so likely to have accurate information concerning pedigree because we have
numerous cases decided by the Supreme Court where we have testimony or
recollection, or even diaries or memorials, from household help who have been in the
family for a long, long period of time. And in one case, even a neighbor, a neighbor
who had grew up with the mother, went to the same school as the mother, and
witnessed the birth of the children and saw them growing up. Go to the next slide
please.
There you have the elements for this particular exception. Just some examples there at
the bottom.
Elements:
1. The actor or declarant is dead or unable to testify;
2. The act or declaration is made by a person related to the subject by birth,
marriage, or adoption, or with whose family he was so intimately associated;
3. The relationship between the declarant or the actor and the subject is shown by
evidence other than such act or declaration; and
4. The act or declaration was made ante litem motam, or prior to the controversy.
The claim of filiation must be made by the putative father himself xxx. A notarial
agreement to support a child whose filiation is admitted by the putative father was
considered acceptable evidence. Letters to the mother vowing to be a good father to
the child and pictures of the putative father cuddling the child on various occasions,
together with the certificate of live birth, proved filiation. However, a student
permanent record, a written consent to a father's operation, or a marriage contract
where the putative father gave consent, cannot be taken as authentic writing.
Standing alone, neither a certificate of baptism nor family pictures are sufficient to
establish filiation. (Nepomuceno v. Lopez, G.R. No. 181258, March 19, 2010, reiterating
Herrera v. Alba, 460 SCRA 197) Let’s go to the next slide.
Slides 98-99. Family reputation or tradition regarding pedigree.
Section 42. 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
be also a member of the family, either by consanguinity or affinity, or adoption.
Entries in family bibles or other family books or charts, engravings on rings, family
portraits and the like, may be received as evidence of pedigree. (40a)
Again, the only addition is the word “adoption”. It’s not just by consanguinity or affinity,
now we are recognizing also adoptive relationships. Next slide please.
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We have the requisites for this particular provision to apply:
1. A statement by a member of the family either by consanguinity, affinity, or
adoption;
2. The statement is about the reputation or tradition of the family in respect to the
pedigree of any member of the family; and
3. The reputation or tradition is one existing previous to the controversy.
Slide 100. Common reputation.
Section 43. Common reputation. - Common reputation existing previous to the
controversy, as to boundaries of or customs affecting lands in the community and
reputation as to events of general history important to the community, or respecting
marriage or moral character, may be given in evidence. Monuments and inscriptions
in public places may be received as evidence of common reputation. (41a)
So here we have an important change because it’s more user-friendly. Now we can use
it because if you look at the previous way that the provision was worded, it’s hard since
there is a requirement of antiquity, it must be more than 30 years. But now the
Supreme Court discarded that requirement and changed it to reliability. How is it
reliable, how sure are we that it is reliable? Because now there must be a consensus of
the community, it is the consensus among the residents of the community. And that is
why now it’s phrased like this: “Common reputation existing previous to the
controversy, as to boundaries of or customs affecting lands in the community and
reputation as to events of general history important to the community.” So this is
where the Supreme Court inserted the test of reliability because there is a consensus
of the community about these facts. We will not rely on antiquity anymore because
you know, over the period of 30 years, the people who are residents in that particular
community could have moved already, so no one will be able to satisfy this
requirement. That’s why we changed it to this. And then we go to the next slide, now
we go to res gestae.
Slides 101-103. Part of the res gestae.
Section 44. Part of the res gestae. - Statements made by a person while a startling
occurrence is taking place or immediately prior or subsequent thereto, under the
stress of excitement caused by the occurrence 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. (42a)
The Supreme Court added the phrase “under the stress of excitement caused by the
occurrence” just for clarity, but of course, we all know that that is the no. 1 requirement
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or element of res gestae, actually translated as startling occurrence.
In People v. Putian (G.R. No. L-33049, November 29, 1976), the Supreme Court noted
that if the declaration was made at the time of, or immediately thereafter, 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 part of the res
gestae. If you go to the next slide, you will see the requisites of res gestae.
Requisites of res gestae:
1. That the principal act, the res gestae be a startling occurrence;
2. The statements were made before the declarant had the time to contrive or
devise a falsehood; and
3. That the statements must concern the occurrence in question and its
immediate attending circumstances.
Tests in applying the res gestae rule:
1. The act, declaration or exclamation is so intimately interwoven or connected
with the principal fact or event that it characterizes as to be regarded as a part of
the transaction itself; and
2. The said evidence clearly negatives any premeditation or purpose to
manufacture testimony.
The important thing to remember is that res gestae will be applied if between the
occurrence and the time that the statement or declaration was made, the declarant
has had no chance to reflect or to concoct. That is the repeated jurisprudence. There
must be no time for reflection, no time to create a story, no time to confabulate. It
must be that the declaration is made while the effects of the startling occurrence are
still there. That is the badge of truthfulness there. If the effects of the startling
occurrence still have a hold on the declarant, then there would be no room for a lie or
for falsehood. So there are the tests, then on the next slide we have some factors on
how to determine spontaneity.
Spontaneity, how determined:
1. The time that has lapsed between the occurrence of the act or transaction and
the making of the statement. But in the decisions of the Supreme Court, you will
see variations as to the time lapsed. Sometimes, it’s just a matter of hours, but for
some, it’s days, some overnight, or two days - still res gestae. So it’s really just one
factor. It may be an important factor, but that’s not the only factor;
2. The place where the statement is made;
3. The condition of the declarant when the utterance is given;
4. The presence or absence of intervening events, this is important, between the
occurrence and the declaration; and
5. The nature and the circumstances of the statement itself. (Manulat v. People,
G.R. No. 190892, August 17, 2015)
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Slides 104-105. Records of regularly conducted business activity.
Section 45. Records of regularly conducted business activity. - A memorandum,
report, record or data compilation of acts, events, conditions, opinions, or diagnoses,
made by writing, typing, 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 to 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 on hearsay
evidence. (43a)
So here, we have a revised provision. This is what we used to know as entries in the
course of business, but now we call it as records of regularly conducted business
activity. This is important. This will solve a lot of delay in our trials. So it says that a
memorandum, report, record or data compilation of acts, events, conditions, opinions,
or diagnoses, made by writing, typing, electronic, optical or other similar means at or
near the time of or from transmission or supply of information, here’s the important
part, by a person with knowledge thereof, and kept in the regular course or conduct of
a business activity, and such was the regular practice to make that memorandum,
report, etc. by those means, all of which are shown by the testimony of the custodian
or other qualified witnesses, is exempt from the hearsay rule.
This is a very common problem because when it comes to records: Let’s give as
examples, the banks have credit officers who are constantly changing, the account
officers do rotations or transferred somewhere else, and so somebody new comes in.
This person doesn’t have personal knowledge of those transactions, but this person
has knowledge that the ones who made the entries had personal knowledge and had
custody of these documents, and that this was in the regular course of business of the
bank. But before we get to the meet of the testimony, so many objections are raised
already, lack of personal knowledge, hearsay, etc. So now the Supreme Court has made
it very clear here that all these things, all these old objections should no longer derail
such kind of testimony. Can we go to the next slide?
Entries in the Course of Business under the old Section 43:
The party offering must establish that:
1. The person who made those entries is dead, outside the country, or unable to
testify;
2. The entries were made at, or near the time of the transaction to which they refer;
3. The entrant was in a position to know the facts stated therein;
4. The entries were made in the professional capacity or in the course of duty of the
entrant; and
5. The entries were made in the ordinary or regular course of business or duty.
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(Landbank v. Oñate, G.R. No. 192371, January 15, 2014)
These are what must be offered to avail of this particular exception, but the important
thing is at the bottom: under the new Section 45, no more requirement that the
entrant must be dead or unable to testify and must have personal knowledge of the
recorded matter. This is always the bone of contention in witnesses like this. Let’s go to
the next slide.
Slides 106-107. Entries in official records - Renumbered Provision.
Section 46. Entries in official records. - Entries in official records made in the
performance of his or her 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 therein stated. (44a)
Again, only a change for gender inclusivity and a change in the number of the
provision. In the next slide, you have the requisites for entries in official records.
Requisites:
1. That the entry was made by a public officer or by another person specially
enjoined by law to do so;
2. That 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;
3. That 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.
A Traffic Accident Investigation Report cannot be given probative weight when the
investigating officer who prepared the same was not presented in court to testify that
he had sufficient knowledge of the facts therein stated, and that he acquired them
personally or through official information. (Standard Insurance Co., Inc. v. Cuaresma,
G.R. No. 200055, September 10, 2014)
I have all these things for you, I’m no longer discussing them because I just want to
walk you through the revisions, but these are for your own personal consumption and
use if you’re preparing your pleadings later on, or for our law students for your review.
Next slide.
Slide 108. Renumbered Provision.
Section 47. Commercial lists and the like. - Evidence of statements of matters of
interest to persons engaged in an occupation contained in a list, register, periodical,
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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. (45)
Commercial lists and the like:
Statement of matters contained in a periodical may be admitted only "if that
compilation is published for use by persons engaged in that occupation and is
generally used and relied upon by them.” (MERALCO v. Quisumbing, G.R. No. 127598,
February 22, 2000)
There you have a revised provision, commercial lists and the list, and you have an
example at the bottom. That’s just a renumbered provision. Next slide please.
Slide 109. Renumbered Provision.
Section 48. 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 or her profession or calling as an expert in the subject.
(46a)
Learned treatises:
History books and published findings of scientists fall within this exception provided
that an expert on the subject testifies to the expertise of the writer.
Again, renumbered. Next, Section 49.
Slides 110-111. Testimony or deposition at a former proceeding.
Section 49. Testimony or deposition at a former proceeding. - The testimony or
deposition of a witness deceased or out of the Philippines or who cannot, with due
diligence, be found therein, or is unavailable or otherwise 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 or her. (47a)
The Supreme Court changed this to add, and I will read it as revised, “the testimony or
deposition of a witness deceased or out of the Philippines or who cannot, with due
diligence, be found therein, or is unavailable or otherwise unable to testify given in a
former case or proceeding, judicial or administrative, involving the same parties and
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subject matter, may be given in evidence against the adverse party who had the
opportunity to cross-examine”. So our requisites are on the next slide.
For the admissibility of a former testimony or deposition that the adverse party must
have had an opportunity to cross-examine the witness or the deponent in the prior
proceeding.
The issues involved in both cases must, at least, be substantially the same; otherwise,
there is no basis in saying that the former statement was — or would have been —
sufficiently tested by cross-examination or by an opportunity to do so. (Republic v.
Sandiganbayan, G.R. No. 152375, Dec. 13, 2011)
Hearsay evidence is admissible in determining probable cause in preliminary
investigations because such investigation is merely preliminary, and does not finally
adjudicate rights and obligations of parties. (PCGG v. Gutierrez, G.R. No. 194159, Oct. 21,
2015, reiterating Estrada v. Ombudsman, G.R. No. 212140-41, January 21, 2015)
Requisites for applicability:
1. The person making the hearsay statement is credible;
2. There must be “substantial basis” for crediting the hearsay (NOT to be confused
with “substantial evidence”).
The important thing is, of course, the cross-examination. Well, that is the guarantee of
due process, and unless there was an opportunity to cross-examine and it was waived,
then this cannot be availed of. Let’s go to the next slide, the new provision.
Slides 112-113. New Provision.
Section 50. Residual exception. - A statement not specifically covered by any of the
foregoing exceptions, having equivalent circumstantial guarantees of
trustworthiness, is admissible if the court determines that (a) the statement is
offered as evidence of a material fact; (b) the statement is more probative on the
point for which it is offered than any other evidence which the proponent can
procure through reasonable efforts; and (c) the general purposes of these rules and
the interests of justice will be best served by admission of the statement into
evidence. However, a statement may not be admitted under this exception unless
the proponent makes known to the adverse party, sufficiently in advance of the
hearing, or by the pre-trial stage in the case of a trial of the main case, to provide the
adverse party with a fair opportunity to prepare to meet it, the proponent‘s intention
to offer the statement and the particulars of it, including the name and address of
the declarant. (n)
Here we have what the Supreme Court calls the residual exception. This is a catch-all
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provision. If your particular case does not fall within any of the exceptions to the
hearsay rule that we have already discussed, now you have Section 50. According to
the authorities, in the U.S., they have 27 exceptions to the hearsay rule, but here, we
only have 11. So the Supreme Court decided to include a residual exception for those
instances which may not be covered as of yet or for now by the express provisions
under the revisions. So let’s go through this together, a statement not specifically
covered by any of the foregoing exceptions, having equivalent circumstantial
guarantees of trustworthiness, there we go again - reliability, is admissible if the court
determines that (a) the statement is offered as evidence of a material fact; (b) the
statement is more probative on the point for which it is offered than any other
evidence which the proponent can procure through reasonable efforts; and (c) the
general purposes of these rules and the interests of justice will be best served. So
qualification - however, a statement may not be admitted under this exception unless
the proponent makes known to the adverse party, sufficiently in advance of the
hearing, or by the pre-trial stage, to provide the adverse party with a fair opportunity to
prepare to meet it, you have to give advance notice if you are going to avail of any
exception under Section 50. Can we go to the next slide please?
The next slide explains to you the reasons why the Supreme Court decided to include
this residual or catch-all exception. Of course, it was copied also from the Federal Rules
of Evidence of the U.S. What is important is that we give the judge some guarantee of
trustworthiness or reliability again.
Rather than add a number of exceptions to the hearsay rule, the Sub-Committee
opted to adopt the residual or catchall exception provided in Rules 803 (24) and 804
(b) (5) [now Rule 807] of the FRE.
The catch-all exception found in the FRE stemmed from the ruling in Dallas County v.
Commercial Union Assurance Co., Ltd. (286 F. 2d 388 [5th Cir. 1961]), which admitted an
old newspaper article to prove that a fire occurred at the court tower during
construction. Although not falling under any of the recognized hearsay exceptions, the
news article was admitted because of “circumstantial guarantees of trustworthiness
based on the fact that the individual reporting the fire had no motive to falsify and that
a false report of a matter so easily checked by readers of the paper would have
subjected the reporter to considerable embarrassment.”
There is a caveat at the bottom that this catch-all exception should only be “used very
rarely and in exceptional circumstances. Let’s go to the next slide please.
Slide 114. 6. Opinion Rule.
Section 51. General Rule. - The opinion of a witness is not admissible, except as
indicated in the following sections. (42)
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So no change in Section 51, just in the numbering, that the opinion of a witness is not
admissible, except as indicated here: opinion of expert witness and opinion of ordinary
witness.
Slides 115-116. Opinion of expert witness. Opinion of ordinary witness.
Section 52. Opinion of expert witness. - The opinion of a witness on a matter
requiring special knowledge, skill, experience or training or education, which he or
she is shown to possess, may be received in evidence. (49a)
Section 53. Opinion of ordinary witness. - 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 or she has adequate knowledge;
b. A handwriting with which he or she has sufficient familiarity; and
c. The mental sanity of a person with whom he or she is sufficiently acquainted.
The witness may also testify on his or her impressions of the emotion, behavior,
condition or appearance of a person. (50a)
In Section 52 on the opinion of the expert witness, the Supreme Court only added one
word, and that is the word “education”, so requiring special knowledge, skill,
experience or training or education. The Supreme Court thought to add education
there, maybe for clarity or as an additional detail.
For Section 53, again, gender inclusive language only. Let’s go to the next slide, which
will explain to you better the admissibility of the opinion of an ordinary witness and
that of an expert.
When is the opinion of an ordinary witness admissible? First of all, there are many of us
laboring under the misinterpretation that only the opinion of the expert is admissible.
Not true. The opinion of an ordinary witness may also be admitted under these
circumstances:
1. If it relates to the identity of a person about whom the witness has adequate
knowledge;
2. If it relates to a handwriting with which the witness has sufficient familiarity;
3. The mental sanity of a person with whom he is sufficiently acquainted; and
4. The ordinary witness may also testify on his impressions of the emotion,
behavior, condition or appearance of a person.
So all these things if given by an ordinary witness are admissible as his opinion.
Now, the opinion of an expert witness is admissible in general. Of course, please always
remember that this is admissibility, we’re not talking about weight. We’ll talk about
weight later on. It is admissible if:
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1. The expert witness has the required professional knowledge, education, learning,
training, skill, etc., and which will sufficiently qualify him/her to speak with
authority on the subject; and
2. He/she is familiar with the standard required of a professional under the
circumstances.
The principle is that the witness' familiarity, and not the classification by title or
specialty, should control issues regarding the expert witness' qualifications.
(Casumpang v. Cortejo, G.R. No. 171127, March 11, 2015)
I find this to be one of the problematic areas of our practice because in the almost 11
years that I was a trial court judge, very very few lawyers who appeared before me
knew how to present an expert witness. So I always tell my students in Evidence that
this is a two-step process: the first step of the process is that you have to qualify your
expert, and then the expert has to be admitted by the court as an expert. And only
after that, do you go to phase 2, which is the examination proper. How do you qualify
your witness? When you are presenting an expert witness ahead of time, you must
have already circulated to your adversary as well as to the court the CV or the resume
of your witness, well, detailing his qualifications, his studies, etc. So that point can
already be settled. If your adversary will even stipulate on the expertise, then that will
save us a lot of time. And only after the witness has been accepted as an expert, should
you proceed to the examination proper.
So at the bottom of the slide you will see the reasonable measure of reliability, there
must be a broad latitude given to the judge in instances of admission of the opinion of
expert witnesses. Let’s go to the next slide please.
8. Character Evidence
Slides 117-119. Character evidence not generally admissible; exceptions.
Section 54. Character evidence not generally admissible; exceptions. – Evidence
of a person’s character or a trait of character is not admissible for the purpose of
proving action in conformity therewith on a particular occasion, except:
(a) In Criminal Cases:
(1) The 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.
(2) The accused may prove his or her good moral character[,] pertinent to the
moral trait involved in the offense charged. However, the prosecution may
not prove his or her bad moral character unless on rebuttal.
(b) In Civil Cases:
Evidence of the moral character of a party in a civil case is admissible only
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when pertinent to the issue of character involved in the case.
(c) In Criminal and Civil Cases:
Evidence of the good character of a witness is not admissible until such
character has been impeached.
In all cases in which evidence of character or a trait of character of a person is
admissible, proof may be made by testimony as to reputation or by testimony
in the form of an opinion. On cross-examination, inquiry is allowable into
relevant specific instances of conduct.
In cases in which character or a trait of character of a person is an essential
element of a charge, claim or defense, proof may also be made of specific
instances of that person’s conduct. (51a; 14, Rule 132)
Character evidence is not generally admissible. When is it admissible?
The first paragraph reads evidence of a person's character or a trait of character is not
admissible for the purpose of proving action in conformity therewith on a particular
occasion, except. This was actually, if you look at the old provision, there was just a
restyling. Some of the provisions were put together and some of the provisions were
separate then and then it was made more orderly.
Instead of reading the provisions as revised, let’s go to my slide, which has summarized
it already.
Slide 120. Character Evidence
This is the general rule character evidence is inadmissible. Why is this the rule?
Because character evidence is generally circumstantial in nature. It deflects us from
the real issues.
Example. The real issue is damages, but then you introduce evidence that this person
is prone to quarrels, etc. So you are deflecting, from the real issue before the Court, and
at most what you're proving is circumstantial. That is the reason why the Courts are
generally wary of character evidence.
Let's move to the exceptions but in some instances courts will allow character
evidence in criminal cases. First, the accused may prove his or her moral trait pertinent
to the charge. That's always been the rule, pertinent to the charge the accused may
prove his or her moral trait. But the choice is given to the accused, of course, because
this is a criminal case all our rules or laws operate with a preference to the accused.
Example. In crimes involving moral turpitude, if there's an element of receipt, the
accused may prove his or her good moral character to counter that particular charge.
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But in that instance, if the accused decides to present proof of his or her good moral
character then the prosecution, in observance of fairness may also prove the accused
bad moral character on rebuttal.
Why is that important? This is important, again, just to stress because we are pro
accused in criminal cases. And that is why we leave it up to the accused to choose to
prove his or her good moral character. And if he does, or if he chooses to do so, then
the prosecution now has a chance on rebuttal only to prove the accused bad
character.
What about the offended party in a criminal case? The offended party may prove
character also, if it tends to establish the probability or improbability of a charge.
Example. The charge is unjust fixation, the accused annoyingly did something to the
offended party, but then the accusation is that the offended party actually was of a
quarrelsome nature. And that is the reason why the alleged offense was committed,
the accused or the offended party may prove her character that she's a quiet person,
she rarely goes out of her house to establish the improbability or probability of the
charge.
Slide 121. Character Evidence - Civil Cases; How to prove a character
Civil Cases. In civil cases, only when moral character of a party is pertinent to the issue
of character involved.
Example. A suit for damages based on a vehicular collision. This party, the one who is
responsible, the one who is defending is known to be an alcoholic or a drug user in the
community and so that may be the reason why the vehicular collision occurred. Only
when the moral character of parties pertaining to the issues in civil cases, then
character evidence may be introduced.
Character of a witness, the good character of a witness may only be proven after such
witness's character has been impeached. We're not just talking about the parties in a
criminal case, or in a civil case, we're also talking about the character of a witness.
Because this has happened so often. “Your Honor, we cannot believe this witness, this
witness is a ‘witness for hire’, he has testified in a lot of cases for money” So you can
prove the good character of a witness once the character of your witness has been
impeached by your adversary.
How do we prove character? How do we establish character evidence? The most
common is reputation, because that's essentially what character is, what is your
reputation in the community? Testimony on your reputation, that's the most
traditional form.
Secondly, in the form of an opinion, but as the authorities rightly say, the testimonial
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reputation is really largely just an opinion. It's the opinion of the community voiced out
by a given member of that community.
And then the third on cross examination only, a character witness may be asked about
relevant prior specific conduct for the limited purpose of testing his knowledge and
credibility of the witness.
RULE 131
BURDEN OF PROOF, BURDEN OF EVIDENCE AND PRESUMPTIONS
Slide 123. Section 1. B urden of proof a nd burden of evidence
Section 1. Burden of proof and burden of evidence. – Burden of proof is the duty of
a party to present evidence on the facts in issue necessary to establish his or her
claim or defense by the amount of evidence required by law. Burden of proof never
shifts.
Burden of evidence is the duty of a party to present evidence sufficient to establish
or rebut a fact in issue to establish a prima facie case. Burden of evidence may shift
from one party to the other in the course of the proceedings, depending on the
exigencies of the case. (1a)
Section one is an important addition, but really just to institutionalize what we have
already been practicing for the longest time. You will see that under the second
paragraph, we now have the burden of evidence defined. Because some people still
get confused, what is the burden of proof? What is the burden of evidence? So burden
of proof is the standard that you have to satisfy in a given case. It depends on the
nature of the case. So in civil cases what your burden is preponderance of evidence. In
criminal cases, it's proved beyond reasonable doubt. In admin cases, or quasi-judicial
forums, it is substantial evidence. But the burden of proof never shifts. It is imposed on
a party and it will not transfer.
But here you see paragraph two defining burden of evidence, what is burden of
evidence? is the duty of a party to present evidence sufficient to establish or rebut a
fact in issue to establish a prima facie case. Burden of evidence may shift from one
party to the other in the course of the proceedings, depending on the exigencies of
the case.
Slide 124. Section 1. Burden of proof and burden of evidence
Let's explain this further. The burden of proof or the standard remains throughout the
trial with a party upon whom it is imposed. While the burden of evidence will shift
from party to party during the trial.
What is the burden of evidence? It is the burden of going forward, according to the
authorities, it is the burden of proving a fact in issue.
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Example. In a criminal case, if you are the prosecution, you have the burden of proof,
proof beyond reasonable doubt. But you also have a burden of evidence because you
have to prove each element. So you're moving from proof from one element to the
next to the next. It just so happens, one element is covered by a presumption. In BP 22,
there is a presumption that there are no adequate funds, once you give notice. And
you know, that check is not made good within the given period of time under the
statute. In that instance, because of that legal presumption that arises, the burden of
evidence shifts to the defense. Because you have established your fact by virtue of that
presumption.
Slides 124-125. Section 2. Conclusive presumptions
Section 2. Conclusive presumptions. – The following are instances of conclusive
presumptions:
(a) Whenever a party has, by his or her own declaration, act, or omission,
intentionally and deliberately led another to believe a particular thing true, and
to act upon such belief, he or she cannot, in any litigation arising out of such
declaration, act or omission, be permitted to falsify it; and
(b) The tenant is not permitted to deny the title of his or her landlord at the time
of the commencement of the relation of landlord and tenant between them.
(2a)
No changes here, still the same, except they insert that gender inclusive language.
Jurisprudence regarding the landlord, tenant and the lessee, the conclusive
presumption.
Slide 126-130. Section 3. Disputable presumptions
Section 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 or her voluntary act;
(d) That a person takes ordinary care of his o r her 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 possesses, or
exercises acts of ownership over, are owned by him o r her;
(k) That a person in possession of an order on himself or herself for the payment of the money, or
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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;
(s) That a negotiable instrument was given or indorsed for a sufficient consideration;
(t) That an indorsement of a 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 [(7)] years, it being unknown whether or not the absentee still
lives, he or she is considered dead for all purposes, except for those of succession.
The absentee shall not be considered dead for the purpose of opening his or her succession
until after an absence of ten [(10)] years. If he or she disappeared after the age of seventy- five
[(75)] years, an absence of five [(5)] years shall be sufficient in order that his or her 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 which is missing, who
has not been heard of for four [(4)] 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 [(4)] years;
(3) A person who has been in danger of death under other circumstances and whose
existence has not been known for four [(4)] years; and
(4) If a married person has been absent for four [(4)] consecutive years, the spouse present
may contract a subsequent marriage if he or she has a well-founded belief that the
absent spouse is already dead. In case of disappearance, where there is a danger of
death[, under] the circumstances hereinabove provided, an absence of only two [(2)]
years shall be sufficient for the purpose of contracting a subsequent marriage.
However, in any case, before marrying again, the spouse present must institute
summary proceeding[s] 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 copartnership;
(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 a 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 acquired property through their actual joint contribution of money,
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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 [(300)] 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 (180) days after the solemnization of the
subsequent marriage is considered to have been conceived during [the former]
marriage, [provided] it be born within the three hundred [(300)] days after the
termination of the former marriage; and
(2) A child born after one hundred eighty (180) 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 [(300)] 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 that 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 to 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 or her when such presumption is necessary to perfect the title
of such person or his or her successor in interest;
(jj) That except for purposes of succession, when two [(2)] 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 [(15)] years, the older is deemed to have survived;
2. If both were above the age of sixty [(60)], the younger is deemed to have survived;
3. If one is under fifteen [(15)] and the other above sixty [(60)], the former is deemed to
have survived;
4. If both be over fifteen [(15)] and under sixty [(60)], and the sex be different, the male is
deemed to have survived, if the sex be the same, the older; and
5. If one be under fifteen [(15)] or over sixty [(60)], and the other between those ages, the
latter is deemed to have survived;
(kk) That if there is a doubt, as between two [(2)] 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. (3a)
Note: Amendments made to the disputable presumptions enumerated under Section
3, Rule 131 were for GENDER INCLUSIVENESS. There were no changes here except for
gender inclusiveness. But I put some jurisprudence here for the law students for their
review and also for our practitioners if they wish to produce them at their own leisure
but we will not take them up one by one. We don't have the time.
Slide 131. Section 4. No presumption of legitimacy or illegitimacy
Section 4. No presumption of legitimacy or illegitimacy. – There is no presumption
of legitimacy or illegitimacy of a child born after three hundred [(300)] days following
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the dissolution of the marriage or the separation of the spouses. Whoever alleges the
legitimacy or illegitimacy of such child must prove his o r her allegation. (4a)
No change also, but just to emphasize because this is important that there is no
presumption more firmly established and founded than the assumption that children
born in wedlock are illegitimate children.
Slide 132. New Provisions
Section 5. Presumptions in civil actions and proceedings. – In all civil actions and
proceedings not otherwise provided for by the law or these Rules, a presumption
imposes on the party against whom it is directed the burden of going forward with
evidence to rebut or meet the presumption.
If presumptions are inconsistent, the presumption that is founded upon weightier
considerations of policy shall apply. If considerations of policy are of equal weight,
neither presumption applies. (n)
Section 6. Presumption against an accused in criminal cases. – If a presumed fact
that establishes guilt, is an element of the offense charged, or negates a defense, the
existence of the basic fact must be proved beyond reasonable doubt and the
presumed fact follows from the basic fact beyond reasonable doubt. (n)
These are two new provisions sections five and six. First, section five, presumptions in
civil actions and proceedings. In all civil actions and proceedings not otherwise
provided for by the law or these Rules, a presumption imposes on the party against
whom it is directed the burden of going forward with evidence to rebut or meet the
presumption. It's just instructional. You get what the Supreme Court is saying in this
particular provision, its telling you that once a legal presumption arises, or one of the
assumptions under the rules, then the party against whom the presumption arose
must move forward because the burden of evidence has shifted to him or her. That's
all that this is saying.
In the second paragraph, it says, If presumptions are inconsistent, the presumption
that is founded upon the weightier considerations of policy shall apply. If
considerations of policy are of equal weight, then neither assumption applies; it means
they will cancel out each other. So you encounter this very often in criminal cases.
Example. There are some presumptions of regularity of performance of official duties
as against a presumption of innocence, of course, the presumption of innocence
would always be weightier. So in those instances the judge, again, is called upon to
make a comparison between the two competing assumptions.
Section 6. The presumption against an accused in criminal cases - If a presumed fact
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that establishes guilt, is an element of the offense charged, or negates a defense, the
existence of the basic fact must be proved beyond reasonable doubt and the
presumed fact follows from the basic fact beyond reasonable doubt. This is just
logical. This is required of us because of the constitutional guarantee of innocence. You
cannot convict an accused on the basis of a mere presumption. If that is all that the
prosecution has a presumption then there must be an acquittal. Okay, that is all that
that provision is saying.
Slide 133. New Provision: Section 5
Just an explanation. Section 5 in civil cases. This particular provision is what is called in
the US as the ‘bursting bubble’ approach to presumptions. What is the bursting
bubble approach? Meaning if you present countervailing evidence to overthrow a
presumption, then the bubble bursts the presumption is gone. It's negated and that is
why they call it the bursting bubble approach.
As for the second paragraph, there must be a weighing of the relative weights of the
presumption.
Slide 134. New Provision: Section 6
The model of this amendment is designed to deal with a situation in a criminal case
where the prosecution relies solely upon a presumption to establish guilt or the
element of a crime and not any other evidence. The court may view the presumption
in such a case as conclusive or as shifting the burden of proof.
RULE 132
PRESENTATION OF EVIDENCE
A. EXAMINATION OF WITNESSES
Slide 132-137 Sections 1-2
Section 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. (1)
Section 2. Proceedings to be recorded. – The entire proceedings of a trial or
hearing, including the questions propounded to a witness and his or her answers
thereto, and 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.
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A transcript of the record of the proceedings made by the official stenographer,
stenotypist or recorder and certified as correct by him or her, shall be deemed prima
facie a correct statement of such proceedings. (2a)
Section 2, Proceedings to be recorded. No changes except for gender inclusive
language.
Slide 138 Section 3. Rights and obligations of a witness.
Section 3. Rights and obligations of a witness. – A witness must answer questions,
although his or her answer may tend to establish a claim against him or her.
However, it is the right of a witness:
(1) To be protected from irrelevant, improper, or insulting questions, and from
harsh or insulting demeanor;
(2) Not to be detained longer than the interests of justice require;
(3) Not to be examined except only as to matters pertinent to the issue;
(4) Not to give an answer which will tend to subject him or her to a penalty for an
offense unless otherwise provided by law; or
(5) Not to give an answer which will tend to degrade his or her 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 or her previous final
conviction for an offense. (3a)
Section 3, Rights and obligations of a witness. Also gender inclusive language.
Quote down there for the protection of witnesses against badgering examination.
Slide 139. Section 5. Direct examination & Section 6. Cross-examination; its purpose
and extent
Section 5. Direct examination. – Direct examination is the examination-in-chief of a
witness by the party presenting him o r her on the facts relevant to the issue. (5a)
Section 6. Cross-examination; its purpose and extent. – Upon the termination of
the direct examination, the witness may be cross-examined by the adverse party on
any relevant matter, with sufficient fullness and freedom to test his or her accuracy
and truthfulness and freedom from interest or bias, or the reverse, and to elicit all
important facts bearing upon the issue. (6a)
Section 5 has no change.
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But a very important change in cross examination. This is very important, because
here, formerly, we allow cross examination on any matters stated in the direct
examination or connected therewith. That was how the old prohibition was phrased.
But now, the Supreme Court has changed that. Now it says that a witness may be
cross examined on any relevant matter, there is no longer any restriction that it be
limited to matters taken up in the direct or connected therewith. Now, a witness may
be cross examined on any relevant matter.
Slide 140. Cross-Examination
This provision deleted “as to any matters stated in direct examination are connected
therewith” and replaced it with “on any relevant matter”. This shift is a shift from the
scope of direct rule, which is an American rule which limits cross examinations, the
matters taken up in the direct examination or anything connected therewith and we
have moved to the use of the wide open rule so called the English rule which permits
cross examination on any relevant matter. This is more consistent with the definition of
evidence under Rule 128 Sec. 1, which means ascertaining the truth regarding a matter
of fact, because if you restrict it to matters taken up in the direct examination, there
might be some kind of half truth or not a full view of the truth or of the evidence if we
do not change the language of the rule, defining what matters may be taken up on
cross examination.
Slides 141-145 Sections 7-11. No change except for gender inclusive language.
Section 7. Re-direct examination; its purpose and extent. – After the cross-examination of the
witness has been concluded, he or she may be re-examined by the party calling him or her to explain
or supplement his or her 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. (7a)
Section 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 or her re-direct examination, and also
on such other matters as may be allowed by the court in its discretion. (8a)
Section 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. (9)
Section 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 difficulty in getting direct and intelligible answers from a witness who is
ignorant, a child of tender years, 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 o r she has previously stated. It is not allowed. (10a)
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Section 11. Impeachment of adverse party’s witness. – A witness may be impeached by the party
against whom he or she was called, by contradictory evidence, by evidence that his or her general
reputation for truth, honesty, or integrity is bad, or by evidence that he or she has made at other times
statements inconsistent with his or her present testimony, but not by evidence of particular wrongful
acts, except that it may be shown by the examination of the witness, or record of the judgment, that
he or she has been convicted of an offense. (11a)
Slide 146. Section 11. Impeachment of adverse party’s witness
We have some explanations here under a rule for meeting the impeachment of an
adverse witness. Although the holding party does not vouch for the witnesses veracity
is nonetheless bound by his testimony if it is not contradicted or remains unrebutted.
Slide 147. New Provision Section 12. Impeachment by evidence of conviction of crime.
Section 12. Impeachment by evidence of conviction of crime. – For the purpose of
impeaching a witness, evidence that he or she has been convicted by final judgment
of a crime shall be admitted if (a) the crime was punishable by a penalty in excess of
one [(1)] year; or (b) the crime involved moral turpitude, regardless of the penalty.
However, evidence of a conviction is not admissible if the conviction has been the
subject of an amnesty or annulment of the conviction. (n)
Section 12. Impeachment by evidence of conviction or crime, we have to relate this
with the previous discussion and character evidence. This is a new provision For the
purpose of impeaching a witness, evidence that he or she has been convicted by final
judgment of a crime shall be admitted if (a) the crime was punishable by a penalty in
excess of one [(1)] year; or (b) the crime involved moral turpitude, regardless of the
penalty. However, evidence of a conviction is not admissible if the conviction has been
the subject of an amnesty or annulment of the conviction. (n)
Of course that is logical. Let's go back to the exceptions Okay, general rule evidence of
prior conviction or prior charge is not admissible.
When is it admissible? If the crime for which the witness was punished was a crime
punishable in excess of one year by imprisonment in excess of one year.
Why is there a limitation? Why not less than one year included? The Court thought
that if an individual was convicted of light offenses or minor crimes, it does not
necessarily affect his credibility. Or it is not necessarily a stain on his integrity. That is
the view at least. So, it should have little impeachment value if the penalty is less than
a year.
And then the second, it involves moral turpitude then there is a there is a question
about the veracity, the truthfulness and the honesty of the witness and that is why the
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Court thought to include this just to make it very, very clear that only in these two
instances can we introduce such type of evidence against a witness.
Slides 148-150. Sections 13-14 No changes except gender inclusive language
Section 13. Party may not impeach his or her own witness. – Except with respect to witnesses
referred to in paragraphs (d) and (e) of Section 10 of this Rule, the party presenting the witness is not
allowed to impeach his or her credibility.
A witness may be considered as unwilling or hostile only if so declared by the court upon adequate
showing of his or her adverse interest, unjustified reluctance to testify, or his or her having misled the
party into calling him or her 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 or her in all respects as if he or she had been called by the
adverse party, except by evidence of his or her bad character. He or she may also be impeached and
cross-examined by the adverse party, but such cross-examination must only be on the subject matter
of his o r her examination-in-chief. (12a)
Section 14. How witness impeached by evidence of inconsistent statements. – Before a witness
can be impeached by evidence that he or she has made at other times statements inconsistent with
his or her present testimony, the statements must be related to him or her, with the circumstances of
the times and places and the persons present, and he or she must be asked whether he or she 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 o r her concerning them. (13a)
[Section 14. Evidence of good character of witness. – (Incorporated in Section 54, Rule 130)]
Slide 151. Section 15. Exclusion and separation of witnesses.
Section 15. Exclusion and separation of witnesses. – The court, motu proprio or
upon motion, shall order witnesses excluded so that they cannot hear the testimony
of other witnesses. This rule does not authorize exclusion of (a) a party who is a
natural person, (b) a duly designated representative of a juridical entity which is a
party to the case, (c) a person whose presence is essential to the presentation of the
party’s cause, or (d) a person authorized by a statute to be present.
The court may also cause witnesses to be kept separate and to be prevented from
conversing with one another, directly or through intermediaries, until all shall have
been examined. (15a)
Here the Court had a revised provision. The court, motu proprio or upon motion, shall
order witnesses excluded so that they cannot hear the testimony of other witnesses.
This rule does not authorize. The Court says general rule upon motion or the Court on
its own motion may exclude witnesses, so that they do not hear each other's
testimonies. But the court cannot authorize the exclusion of four groups of people.
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First, a party, who is a natural person. Second, of a juridical entity which is a party to the
case. That is just to be fair, just because the party is a juridical entity, it should be
afforded the same rights as a party whose a natural person under letter A. Third, a
person whose presence is essential to the presentation of the party’s cause. For
example, an agent, or maybe an expert witness. You're presenting an expert witness
and you want your expert witness to listen to the testimonies of the adverse party, so
that the expert witness can be better prepared. So that person is exempt from being
excluded. And the last one, is a person authorized by a statute to be present. The court
said that they included letter B to make way for future exemptions under laws
Then the second paragraph, of course, guards against conversing or coaching each
other directly or through intermediaries while testifying.
Slide 152. Section 16. No changes except for gender inclusive language.
Section 16. When witness may refer to memorandum. – A witness may be allowed to refresh his or
her memory respecting a fact by anything written or recorded by himself or herself, or under his or
her direction[,] at the time when the fact occurred, or immediately thereafter, or at any other time
when the fact was fresh in his or her memory and he or she 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 or she chooses, cross-examine the witness upon it and may read it in
evidence. A witness may also testify from such a writing or record, though he or she retains no
recollection of the particular facts, if he or she is able to swear that the writing or record correctly
stated the transaction when made; but such evidence must be received with caution. (16a)
Section 17. When part of transaction, writing or record given in evidence, 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. (17)
Section 18. Right to inspect writing shown to witness. – Whenever a writing is shown to a witness, it
may be inspected by the adverse party. (18)
B. AUTHENTICATION AND PROOF OF DOCUMENTS
Slide 153-154. Section. 19 Classes of documents
Section 19. Classes of documents. – For the purpose of their presentation in
evidence, documents are either public or private.
Public documents are:
(a) The written official acts, or records of the sovereign authority, official bodies
and tribunals, and public officers, whether of the Philippines, or of a foreign
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country;
(b) Documents acknowledged before a notary public except last wills and
testaments;
(c) Documents that are considered public documents under treaties and
conventions which are in force between the Philippines and the country of
source; and
(d) Public records, kept in the Philippines, of private documents required by law to
be entered therein.
All other writings are private. (19a)
The classes of documents remain the same, except that under public documents, now
we have an addition. Letter C, Documents that are considered public documents
under treaties and conventions which are in force between the Philippines and the
country of source. We have included these documents. They are also considered public
documents under treaties and conventions to which our country is a signatory. That's
the important change there. And later on, we'll explain why that was included.
Slide 155. Section. 20 Proof of private documents
Section 20. Proof of private document[s]. – Before any private document offered as
authentic is received in evidence, its due execution and authenticity must be proved
by any of the following means:
(a) By anyone who saw the document executed or written;
(b) By evidence of the genuineness of the signature or handwriting of the maker[;]
or
(c) By other evidence showing its due execution and authenticity.
Any other private document need only be identified as that which it is claimed to be.
(20)
How do you prove private documents? By any of the following means. The Court
added letter C, by any other evidence showing it's due execution and authenticity. The
court said we should not be limited to evidence under a and b. A is anyone who saw
the document executed or written. B is the genuine evidence of the genuineness of
the signature or handwriting of the maker.
So the Court added this other means, by other evidence showing its due execution
and authenticity, to cover all other evidence not falling within a and b.
Slide 156. Sections 19-20 Summary
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This is our summary. Public documents, they are admissible without proof of due
execution and genuineness. They are self proving. So you have the three plus letter D,
public documents under treaties and conventions. Then private documents. How do
you prove them? You have the three means. A B, and C.
Under letter C see, the court emphasizes again, reliability. There must be that element
of reliability or trustworthiness. For that evidence to be accepted. This is actually a
recognition also of a counterpart or a similar provision in the rules on electronic
evidence.
Slide 157 - Section 22. How genuineness of handwriting proved - No change
Section 21. When evidence of authenticity of private document not necessary. – Where a private
document is more than thirty (30) years old, is produced from a 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. (21)
Section 22. How genuineness of handwriting proved. – The handwriting of a person may be proved
by any witness who believes it to be the handwriting of such person because he or she has seen the
person write, or has seen writing purporting to be his or hers 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. (22)
Slide 158. Section 22. How genuineness of handwriting proved
Just as a reminder, just because a handwriting expert testifies on behalf of a party does
not necessarily mean that the court is bound to accept the testimonial of the expert.
The court is duty bound to make its own assessment of the acceptability of the validity
also, and the reliability of the expert evidence adduced. In particular reference to
handwriting the Court supposed to make its own independent examination, especially
if the flaws or the distinctions are the dissimilarities in the handwriting are very visible
to the naked eye.
Slides 159-161. Section 24. Proof of official record.
Section 23. Public documents as evidence. – Documents consisting of entries in
public records made in the performance of a duty by a public officer are prima facie
evidence of the facts therein stated. All other public documents are evidence, even
against a third person, of the fact which gave rise to their execution and of the date
of the latter. (23)
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Section 24. Proof of official record. – The record of public documents referred to in
paragraph (a) of Section 19, when admissible for any purpose, may be evidenced by
an official publication thereof or by a copy attested by the officer having the legal
custody of the record, or by his or her 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, which is a contracting
party to a treaty or convention to which the Philippines is also a party, or considered
a public document under such treaty or convention pursuant to paragraph (c) of
Section 19 hereof, the certificate or its equivalent shall be in the form prescribed by
such treaty or convention subject to reciprocity granted to public documents
originating from the Philippines.
For documents originating from a foreign country which is not a contracting party to
a treaty or convention referred to in the next preceding sentence, 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 [ or her] office.
A document that is accompanied by a certificate or its equivalent may be presented
in evidence without further proof, the certificate or its equivalent being prima facie
evidence of the due execution and genuineness of the document involved. The
certificate shall not be required when a treaty or convention between a foreign
country and the Philippines has abolished the requirement, or has exempted the
document itself from this formality. (24a)
The Court added the second paragraph, If the office in which the record is kept is in a
foreign country, which is a contracting party to a treaty or convention to which the
Philippines is also a party, or considered a public document under such treaty or
convention, then the certificate or its equivalent shall be in the form prescribed by
such duty or convention. etc. This particular provision was added because of the
Apostille convention. We acceded to it on September 12 2018, and it became effective
on May 14 2019. It abolished the requirement of consularization.
What is Consularization? That is when we secure a diplomatic or consular legalization
of our public documents or notarial documents from a foreign country. Our
documents are originating from another country, they are going to be presented in
court in the Philippines. So we need some form of authentication and the old
provisions of our rules require this kind of authentication, which we call
consularization.
With the apostille convention, you no longer have to go through all that bother. All you
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need is the certificate, which you can secure to the DFA, the Department of Foreign
Affairs, there is a template certificate, it's very, very brief, I think just one or two
sentences with the accompanying seal and that is enough. It is attached to your
document and that will take the place of all the other things that we did before
including the red green one, which we no longer need now.
Please remember that it already took effect last year, May 14 2019.
Slides 162-163. Section 25. What attestation must take. No changes.
Section 25. What attestation of copy must state. – Whenever a copy of a document or record is
attested for the purpose of evidence, the attestation must state, in substance, that the copy is a
correct copy of the original, or a specific part thereof, as the case may be. The attestation must be
under the official seal of the attesting officer, if there be any, or if he or she be the clerk of a court
having a seal, under the seal of such court. (25a)
Just some citations to guide you.
Slides 164-165. Section 28. Proof of lack of record - No changes except for gender
inclusive language.
Section 26. Irremovability of public record. – Any public record, an official copy of which is
admissible in evidence, must not be removed from the office in which it is kept, except upon order of
a court where the inspection of the record is essential to the just determination of a pending case. (26)
Section 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. (27)
Section 28. Proof of lack of record. – A written statement signed by an officer having the custody of
an official record or by his or her deputy that[,] after diligent search[,] no record or entry of a specified
tenor is found to exist in the records of his or her office, accompanied by a certificate as above
provided, is admissible as evidence that the records of his or her office contain no such record or entry.
(28a)
Slide 166. Section 31. Alteration in document, how to explain - No changes except for
gender inclusive language.
Section 29. How judicial record impeached. – A ny 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. (29)
Section 30. Proof of notarial documents. – Every instrument duly acknowledged or proved and
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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. (30)
Section 31. Alteration in document, how to explain. – The party producing a document as genuine
which has been altered and appears to have been altered after its execution, in a part material to the
question in dispute, must account for the alteration. He or she may show that the alteration was made
by another, without his or her concurrence, or was made with the consent of the parties affected by it,
or was otherwise properly or innocently made, or that the alteration did not change the meaning or
language of the instrument. If he or she fails to do that, the document shall not be admissible in
evidence. (31a)
Section 32. Seal. – There shall be no difference between sealed and unsealed private documents
insofar as their admissibility as evidence is concerned. (32)
Section 33. Documentary evidence in an unofficial language. – Documents written in an unofficial
language shall not be admitted as evidence, unless accompanied with a translation into English or
Filipino. To avoid interruption of proceedings, parties or their attorneys are directed to have such
translation prepared before trial. (33)
C. OFFER AND OBJECTION
Slide 167. Section 35. When to make offer
Section 34. Offer of evidence. – The court shall consider no evidence which has not
been formally offered. The purpose for which the evidence is offered must be
specified. (34)
Section 35. When to make offer. – All evidence must be offered orally.
The offer of the testimony of a witness in evidence must be made at the time the
witness is called to testify.
The offer of documentary and object evidence shall be made after the presentation
of a party’s testimonial evidence. (35a)
When to make an offer? This rule now institutionalizes the oral offer of evidence. The
oral offer of evidence was first proposed and used through the Quezon City practice
guidelines for litigation, which we prepared. I don't know anymore. I forgot but a long
time ago when I was still there. And then after that, it became a part of the judicial
affidavits rule. And of course, it is also an important pillar of the continuous trial system
of the Chief Justice and so now, it's institutionalized. So now, all evidence must be
offered orally.
The offer of the testimony of a witness in evidence must be made at the time the
witness is called to testify. And the offer of documentary and object evidence shall be
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made after the presentation of a party’s testimonial evidence.
The basic rule under Section 34 is that the Court shall not consider any evidence which
is not offered formally. And that is why now the rule is you offer it orally. Of course, the
objections can also be made orally, and then the ruling is supposed to be made orderly
also. But of course, everything will be captured on record of the Court. So anytime you
can ask the Court for a copy of the transcript of the oral offer or of the oral objections,
the ruling has to be in the form of a resolution also.
Slide 168. Section 35. When to make offer
The jurisprudence, highlighting the distinction between identification of documentary
evidence and actual offer. The fact that you mark an evidence in open court does not
constitute an offer of that evidence. And that's a totally different thing.
Slides 169-170. Section 36. Objection
Section 36. Objection- Objection to offer of evidence must be made orally
immediately after the offer is made.
Objection to the testimony of a witness for lack of a formal offer must be made as
soon as the witness begins to testify. Objection to a question propounded in the
course of the oral examination of a witness must be made as soon as the grounds
therefor become reasonably apparent.
The grounds for the objections must be specified. (36a)
You have to make your objections orally also, to the testimony of a witness as soon as
the offer is made, you have to make your objection to the offer of the testimony. And
then as to the questions, as soon as the question is propounded, you must make your
oral objections also.
In Catuira vs. Court of Appeals, the Supreme Court ruled that the objection to the offer
of testimony or the lack of an offer of testimony was waived, because the objection
was not raised reasonably. That is why here with a redrafted provision, you are
cautioned to make your oral offer of testimony right at the start.
Slide 171. Section 37. When repetition of objection unnecessary - No changes except for
gender inclusive language.
Section 37. When repetition of objection unnecessary. – When it becomes reasonably apparent in
the course of the examination of a witness that the questions being propounded are of the same class
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4
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 or
her continuing objection to such class of questions. (37a)
Section 38. Ruling. – The ruling of the court must be given immediately after the objection is made,
unless the court desires to take a reasonable time to inform itself on the question presented; but the
ruling shall always be made during the trial and at such time as will give the party against whom it is
made an opportunity to meet the situation presented by the ruling.
The reason for sustaining or overruling an objection need not be stated. However, if the objection is
based on two [(2)] or more grounds, a ruling sustaining the objection on one [(1)] or some of them
must specify the ground or grounds relied upon. (38)
Slide 172. Section 39. Striking out answer
Section 39. Striking out [of] answer. – Should a witness answer the question before
the adverse party had the opportunity to voice fully its objection to the same, or
where a question is not objectionable, but the answer is not responsive, or where a
witness testifies without a question being posed or testifies beyond limits set by the
court, or when the witness does a narration instead of answering the question, and
such objection is found to be meritorious, the court shall sustain the objection and
order such answer, testimony or narration 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. (39a)
Section 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. (40)
Revised Provision. When can the lawyer move for striking out a witness' answer?
Should the witness answer the question before the adverse party had the opportunity
to voice fully its objection. That's the first one. And then the SC added several other
grounds. Second, where the question is not objectionable, but the answer is not
responsive. Third, where the witness testifies without the question being posed.
Fourth, where the witness testifies beyond the limits set by the Court or Fifth when the
witness does a narration instead of answering the question.
So all these are grounds for you to move to strike out an answer. But of course,
litigators will know these, we do not really strike it out of the transcript. It remains in
the transcript. Although the court says, the answer is stricken from the record and the
reason is because we want to maintain it just in case there's a certiorari petition later
on, or maybe even for purposes of appeal. Even if it signed as an error.
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RULE 133
WEIGHT AND SUFFICIENCY OF EVIDENCE
Slide 174-175. Rule 133, Sec. 1. Preponderance of evidence, how determined
Section 1. Preponderance of evidence, how determined. In civil cases, the party
having the burden of proof must establish his or her 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 they 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.
Preponderance of evidence:
- burden of proof in civil cases
- is the weight, credit, and value of the aggregate evidence on either side
- synonymous with the term "greater weight of evidence" or "greater weight of
credible evidence
It is presumed that a person is innocent of wrong; that a person takes ordinary care
of his concerns; that private transactions have been fair and regular; and that the
ordinary course of business has been followed. Based on these presumptions, [it is
presumed] that xxx NAIA III [was] built in accordance with the specifications required
The burden of proof lies with the Government to prove by preponderance of
evidence that the NAIA III suffered from structural defects. (Republic v. Mupas, G.R. NO.
181892, September 8, 2015)
Lady Justice is literally preponderance of evidence.
The volume does not determine victory, but quality of evidence.
Slide 176. Rule 133, Sec. 2. Proof beyond reasonable doubt
Section 2. Proof beyond reasonable doubt. In a criminal case, the accused is
entitled to an acquittal, unless his or her guilt is shown beyond reasonable doubt.
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Proof beyond reasonable doubt does not mean such a degree of proof as, excluding
possibility of error, produces absolute certainty. Moral certainty only is required, or
that degree of proof which produces conviction in an unprejudiced mind.
Proof beyond reasonable doubt:
- burden of proof in criminal cases.
- does not mean such a degree of proof, excluding possibility of error, produces
absolute certainty
- moral certainty only is required, or that degree of proof which produces conviction
in an unprejudiced mind.
- still the standard for criminal prosecutions under the Intellectual Property Code.
(ABS-CBN Corp. v. Gozon, G.R. No. 195956, March 11, 2015)
Slide 177. Rule 133, Sec. 4. Circumstantial evidence, when sufficient
Section 4. Circumstantial evidence, when sufficient
Circumstantial evidence is sufficient for conviction if:
a)There is more than one circumstance;
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.
Inferences cannot be based on other inferences.
The amendment incorporates the ruling of the Supreme Court in People v. Austria
(G.R. No. 55109, April 8, 1991) where it was held that the “conviction of appellant
Eduardo Austria on an inference based on another inference cannot be maintained.
It is axiomatic that conviction should be made on the basis of a strong, clear and
compelling evidence.”
“Inferences cannot be based on other inferences” - One is prohibited from basing
decisions or resolutions on plain speculations or conjecture.
Slide 178. Rule 133, Sec. 4. Circumstantial evidence, when sufficient
Section 4. Circumstantial evidence, when sufficient
To sustain a conviction based on circumstantial evidence, the following requisites
Q Notes by: HPM, HPR, HPD, VT P
age 61 of 6
4
must concur:
a) there must be more than one circumstance to convict;
b) thefactsonwhichtheinferenceofguiltisbasedmustbeproved;and
c) the combination of all the circumstances is such as to produce a conviction
beyond reasonable doubt.
With respect to the third requisite, it is essential that the circumstantial evidence
presented must constitute an unbroken chain, which leads one to a fair and
reasonable conclusion pointing to the accused, to the exclusion of others, as the
guilty person. (Franco v. People, G.R. No. 191185, February 1, 2016, citing People v. Ayola,
G.R. No. 138923, September 4, 2001)
Although there was no eyewitness or direct evidence xxx (which) point to the
petitioner as the one who killed his wife, there was also no direct evidence
establishing that the victim took her own life, circumstantial evidence may be
established or admitted. It is the quality of the circumstances, rather than the
quantity, xxx, (which must) consist of an unbroken chain that will inescapably lead to
the conclusion that the accused is guilty without an iota of doubt. (Manulat, Jr. v.
People, G.R. No. 190892, Aug. 17, 2015)
Slide 179. Rule 133, Sec. 5. Weight to be given of expert witness, how determined
Section 5. Weight to be given opinion of expert witness, how determined. – In any case
where the opinion of an expert witness is received in evidence, the court has a wide
latitude of discretion in determining the weight to be given to such opinion, and for
that purpose may consider the following:
a)Whether the opinion is based upon sufficient facts or data;
b)Whether it is the product of reliable principles and methods;
c)Whether the witness has applied the principles and methods reliably to the facts of
the case; and
d)Such other factors as the court may deem helpful to make such determination.
This new provision gives guidance to judges in determining weight to be given to
expert opinion. It hews to the basic sense expressed by the US Supreme Court in
Daubert v. Merrel Pharmaceuticals, Inc. that the judge must have considerable leeway in
the matter and that the listing of particular factors was meant to be “helpful” rather
than “definitive.”
Q Notes by: HPM, HPR, HPD, VT P
age 62 of 64
The presentation of expert witness is always problematic to the court, not just the
procedure of presenting it, but to the assessment also. Since court is largely unfamiliar
with technical matters such as medicine, accounting, and bookkeeping, they had to
rely on the experts. But up to what extent should the courts rely on them? They must
still exercise discretion. This section provides guidelines on how to give weight on the
testimony of the expert.
Paragraphs a, b, c - Specific guidelines for the judges
Paragraph d - General catch-all phrase which will give the judge some leeway or
discretion based on his own assessment or observation of the expert as the latter is
testifying or being examined
Slide 180. Rule 133, Sec. 6. Substantial evidence
Section 6. Substantial evidence. - I n 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.
Substantial Evidence:
- burden of proof in administrative or quasi-judicial bodies.
- means "that amount of relevant evidence which a reasonable mind might accept
as adequate to justify a conclusion.”
- affidavits may be sufficient to establish substantial evidence (Punongbayan & Araullo
v. Lepon, G.R. No. 174115, November 9, 2015)
Just renumbering.
Slide 181. Rule 133, Secs. 7-8.
Section 7. 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. This power shall be exercised with caution.
Section 8. 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.
Q Notes by: HPM, HPR, HPD, VT P
age 63 of 64
Just a renumbering.
~END~
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Q Notes by: HPM, HPR, HPD, VT P
age 64 of 6
4
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