EVIDENCE

(WITH UPDATES)
Justice Eduardo B. Peralta, Jr.
I.
(RULE 128 – GENERAL PROVISIONS)
A. Evidence, Fact, and Proof
Evidence is the means of proving the truth of a fact in judicial proceedings. It becomes necessary to present
evidence in a case when the pleadings filed present factual issues. Factual issues arise when a party
specifically denies material allegations in the adverse party’s pleading. These are the issues which the judge
cannot resolve without evidence being presented thereon. Thus, whether a certain thing exists or not,
whether a certain act was done or not, whether a certain statement was uttered or not, are questions of fact
that require evidence for their resolution. Questions of fact exist when the doubt or difference arises as to the
truth or falsehood of alleged facts.[1]

When the parties’ pleadings fail to tender any issue of fact, either because all the factual allegations have
been admitted expressly or impliedly (as when a denial is a general denial), there is no need to conduct trial,
as there is no need to present evidence anymore. The case is then ripe for judicial determination, either
through a judgment on the pleadings or by summary judgment.[2]

Evidence, it has been consistently remarked, is the legitimate medium of proving the truth of a disputed fact
before a judicial proceeding.[3] As reiterated in Gios-Samar, Inc. v. Department of Transportation and
Communications and Civil Aviation Authority of the Philippines,[4] evidence is the means of ascertaining, in a
judicial proceeding, the truth respecting a matter of fact.

The law of evidence governs the presentation of facts, otherwise by comment or argument, before a legal
tribunal. It may be stated generally that facts in issue and facts relevant to the issue may be proved.[5]

Metaphorically, then, evidence bridges the gap between allegation and proof. And the distinction between
evidence and proof, as well as the definition itself of proof, may be both stated simply as follows: Proof is the
result of sufficient evidence.[6]

The true question, therefore, in trials of fact, is not whether it is possible that the testimony may be false, but
whether there is sufficient probability of its truth; that is, whether the facts are shown by competent and
satisfactory evidence. Things established by competent and satisfactory evidence are said to be proved.[7]

B. Adversary System: Issue, Non-issue

As passive instruments in the administration of justice, courts normally address a factual controversy when
an issue[8] is raised by a party over an allegation of fact [9] and it is contested by the adverse party in a judicial
proceeding.[10] In short, a fact in issue is an assertion from a party which is disputed by the other party.[11]
If the proponent’s claim is not disputed by the adverse party, whose Answer in a civil case covered by
ordinary procedure, for instance, fails[12] to tender an issue, or when the responsive pleading concedes the
material allegations of the adverse party’s initiatory pleading, presentation of evidence is generally
redundant since the court, may, direct judgment based on the pleading, [13] or an immediate judgment of a civil
case covered by summary procedure.[14]
By contrast, in a criminal case during which occasion the defendant pled guilty to a capital offense, such
formal reaction[15] from the accused will accelerate the usual criminal proceeding on account of the
defendant’s judicial admission.[16] Nonetheless, when the Supreme Court discussed Sec. 3, Rule 116 of the
2000 Rules on Criminal Procedure on the plea of guilt to a capital offense in People v. Pagal,[17] it reiterated
the mandate for the judge to conduct searching inquiry into the voluntariness and full comprehension of the
consequences of his or her plea, direct reception of evidence from the prosecution to prove the defendant’s
guilt, and extend to the defense the opportunity to present evidence in his or her behalf.
On the other hand, a similar plea of the defendant to a non-capital offense may authorize the trial court to
receive evidence from the parties to determine the penalty to be imposed.[18]
But presentation of evidence by a party for an issue can be displaced by what can be considered shortcuts to
proof.[19] An inquiry over, or an attempt to prove, a fact can be foreclosed by judicial notice, [20] judicial
admission,[21] or by a presumption,[22] if a party laid the foundation for, or enjoys the benefit of, the inference.
C. Question of Fact from Question of Law
To be certain that he or she is acting in conformity with the law, the judge has, on every occasion, two points
to consider; the one is a question of fact, the other a question of law. The first consists in assuring himself or
herself that a given fact existed in a given place, at a given time; the second consists in assuring himself or
herself, that the law has laid down a rule of such or such a nature, applicable to this individual fact. The
question of law is decided by the text of the law, or when there is no written law, by previous decisions. The
question of fact is decided by evidence. All depends on facts.[23]

There is a question of law when the doubt or difference arises as to what the law is on certain state of facts
and which does not call for an existence of the probative value of the evidence presented by the parties-
litigants. In a case involving a question of law, the resolution of the issue rests solely on what the law provides
on the given set of circumstances. On the other hand, a question of fact exists when a doubt or difference
arises as to the truth or falsity of alleged facts. If the query requires a re-evaluation of the credibility of
witnesses or the existence or relevance of surrounding circumstances and their relation to each other, the
issue in that query is factual.[24]
D. Sources of Evidence
There are three sources of rules on evidence: (1) the Constitution,[25] (2) substantive law, and (3) procedural
rule.
1. The Constitution
Within the four corners of the Fundamental Law are some rules of evidence in Art. 3 of the Bill of
Rights, viz.:
(a) The right against unreasonable search and seizure,
(b) The privacy of communication and correspondence,
(c) Custodial interrogation rights, and
(d) The right against self-incrimination.[26]
2. Substantive Law
It is basic that substantive law is that part of law which creates, defines, and regulates rights, as
opposed to “adjective or remedial law,” which prescribes the method of enforcing the rights or
obtaining the redress for their violation.[27]
Since jurisdiction is a matter of substantive law, the established rule is that the statute in force at the
time of the commencement of the action determines the jurisdiction of the court.[28]
In People v. Bintaib,[29] Sec. 21 of Rep. Act No. 9165 was considered a matter of substantive law, which
cannot be brushed aside as a simple technicality inasmuch as it was crafted to address potential police
abuses to narrow opportunity for tampering of evidence. In addition to the rule of authentication of
evidence in Sec. 21 of Rep. Act No. 9165, as amended by Rep. Act No. 10640, which became effective on
July 23, 2014, as relayed in People v. Buniel and Simbulan,[30] another illustration of the pertinence of
substantive law to the rules on evidence is the increase in jurisdictional threshold of the First Level
Court in a civil case by virtue of Rep. Act No. 11576.
Under Rep. Act No. 11576,[31] in all civil actions which involve the title to, or possession of, real
property, or any interest therein, where the assessed value exceeds Four Hundred Thousand Pesos
(₱400,000.00), except for forcible entry into and unlawful detainer. As construed by case law, the
assessed value will expect an averment thereon on the Complaint, or in the absence thereof, a basis
therefor in the form of an annex, and possible presentation of evidence thereof, since there is no
judicial notice of the assessed value nor of the market value of real property, pursuant to Gabrillo v.
Heirs of Pastor.[32]
a. Rep. Act No. 8792
Amidst technological progression, Congress recognized and authorized electronic commerce
through Rep. Act No. 8792, approved on June 14, 2000, or the Electronic Commerce Act of 2000.
In substance, the law accorded validity to an electronic data message, electronic document,
electronic signature, and the electronic contract, based on preconditions therefor.[33]
Per Sec. 2 of the Rules on Electronic Evidence promulgated by the Supreme Court effective
August 1, 2001,[34] the rule on admissibility of electronic document or electronic data message
as defined in Rule 2 thereof, and offered or used in evidence, was originally restricted to civil
actions and proceedings, as well as in quasi-judicial and administrative cases. Subsequently, the
Rules on Electronic Evidence also covered criminal cases by virtue of the Supreme Court’s En
Banc Resolution in A.M. No. 01-7-01-SC dated September 24, 2002, an amendment that took
effect on October 14, 2002.”[35]
 In People v. Manansala,[36] the Supreme Court underscored that the Rules on Electronic
Evidence provide that persons authorized to authenticate the video or CCTV recording is not
limited solely to the person who made the recording but also by another competent witness
who can testify to its accuracy. In Manansala, Asas, the prosecution witness who testified that
he was the one who transferred the video footages from the barangay-owned CCTV that was
located outside their house to the compact disc that was submitted in court as evidence, was
able to establish the origin of the recording and explain how it was transferred to the compact
disc and subsequently presented to the trial court.
b. Allied Laws on Computer Technology
To regulate access and use of the internet, and in addition to Rep. Act No. 8792, the
Philippines also enacted the Access Devices Regulation Act (Rep. Act No. 8484) and the Anti-
Bullying Act of 2013 (Rep. Act No. 10627).[37]
There is also Rep. Act No. 10173, known as the Data Privacy Act of 2012, approved on August
15, 2012, which was intended to protect the fundamental human right of privacy, of
communication while ensuring free flow of information to promote innovation and growth.
[38]
As conceptualized, prior to collection and processing of personal information, consent of the
data subject is required, which expression must be freely given, specific, or an informed
indication of will as evidenced by written, electronic or recorded means. It may also be given on
behalf of the data subject by an agent specifically authorized by the data subject to do so.[39]
3. Procedural Law
All systems of the law consist of two parts, of which one is Substantive Law and the other, Procedure.
Again, procedure is composed of three grand divisions known respectively as Pleading, Practice and
Evidence. The rules of evidence then, are part of the law of Procedure.[40]
In 1948, Bustos v. Lucero[41] specifically referred to the rules of evidence as procedural in
nature. People v. Moner[42] reiterated the view that the traditional power of the Supreme Court to
promulgate rules of pleading, practice and procedure, includes the power to promulgate the rules of
evidence.
Estipona, Jr. v. Lobrigo and People[43] underscored anew that the power to promulgate rules of
pleading, practice and procedure is within the exclusive domain of the Supreme Court under Sec. 5(5),
Art. VIII of the 1987 Constitution. Hence, Estipona, Jr. declared the unconstitutional status of Sec. 23 of
Rep. Act No. 9165 which prohibited plea bargaining in drug cases.
Included within the Revised Guidelines for Continuous Trial of Criminal Cases[44] are evidentiary
tenets such as: covenants between the parties expect court participation and shall not be left alone to
the counsel,[45] resolution of the Petition for Bail solely on the evidence of the prosecution, non-
deferment in the presentation of evidence-in-chief pending evaluation of the Petition for Bail or the
Motion for Reconsideration, and oral testimony based on sworn statements, without prejudice to
additional direct and cross-examination.
Reiterated as a policy of the Supreme Court was the continuous trial of civil cases which referred to
specific timelines for hearings days, calendar call, and immediate oral offer, oral objection and ruling
of the court.[46]
E. General Considerations
1. Gist of Admissibility
A fusion of Secs. 1 to 4, Rule 128 of the Revised Rules on Evidence indicated that evidence is
admissible when it hurdles the two-fold test of relevancy and competency to the fact in issue.[47]
When evidence has “such a relation to the fact in issue as to induce belief in its existence or non-
existence,” it is said to be relevant. When evidence is not excluded by law or by the Rules, it is said to
be competent.[48]
2. Two Axioms of Admissibility
Wigmore lays down these two axioms of admissibility:[49]
(1) That none but facts having rational probative value are admissible; and
(2) That all facts having rational probative value are admissible, unless some specific rule forbids their
admission.
a. Relevancy
Relevancy is the logical connection of the factum probans, or the evidentiary facts, to
the factum probandum, or the ultimate fact in dispute. Evidence on collateral or parallel matters
is legally impermissible unless it constitutes relevant evidence, or if it tends to establish the
existence of the principle fact,[50] such as circumstantial evidence,[51] which is evidence of
 relevant collateral facts.[52] To reiterate case law, circumstantial evidence consists of proof of
collateral facts and circumstances from which the existence of the main fact may be inferred
according to reason and common experience.[53]
Mindful of the significance of factum probans and factum probandum, on account of the 2019
Amendments to the 1997 Rules of Civil Procedure, effective May 1, 2020, [54] assertions on the
initiatory pleading, such as the Complaint, and responsive pleading, like the Answer, should
now be fortified.[55]
(1) Conditional Admissibility
In addition to the question of logical nexus of factum probans with factum
probandum, American indoctrination referred to the doctrine of conditional
admissibility which permits initial or temporary evidence, which appears to be legally
inconsequential, provided there is good faith on the part of the proponent, and there is
the logical link between the initial and the subsequent evidence.[56]
In the presentation of evidence, facts are of necessity presented in sequence. Thus, it
may happen that some facts, when presented, may appear inadmissible but may actually
be relevant because of their connection with other facts not yet presented. Under that
situation, such facts may be admitted conditionally. Being admissible only depending
upon other facts, they are received on the assurance of counsel that the specific facts
establishing their relevancy will be presented at a suitable opportunity before the case is
closed.[57]
Hence, a party’s inability to establish the connection between the initial and
subsequent evidence can lead to the striking out of the entire evidence at the behest of
the adverse party’s counsel[58] since the rules on projected inclusion and exclusion of
evidence are not self-executing.[59]
b. Competency
Competency of evidence assumes absence of an exclusionary rule under the Constitution, the
law or the rules. Evidence must not only be logically relevant, but must be of such a character as
to be receivable in courts of justice.[60]
F. When to Consider Admissibility of Evidence
1. Offer; Objection
Admissibility or inadmissibility of evidence is determined at the time of offer of evidence by the
proponent, and objection, if any from the opponent at the appropriate time.[61]
In regard to Sec. 35, Rule 132 of the 1989 Revised Rules on Evidence, the current rule in Sec. 35, Rule
132 now expects that “[a]ll evidence must be offered orally.” Oral offer of testimonial evidence takes
place at the time the witness is called to testify while oral offer of documentary and real evidence is
made after a party’s testimonial evidence. Oral objection is interposed at the time of offer. An absence
of an oral offer of testimonial evidence now requires an objection as soon as the witness testifies while
an objection to a question propounded during oral examination of a witness must be made as soon as
the grounds therefor become reasonably apparent, without prejudice to a continuing objection.[62]
Thereafter, the court’s oral or reserved ruling on the acceptance or rejection of the evidence can
address the question of admissibility or inadmissibility of the evidence vis-á-vis other remedies such
as striking out of an answer and tender of excluded evidence.[63]
2. Absence of Objection
If evidence is fundamentally something proffered to establish an alleged or disputed fact, [64] it
necessarily follows that the law of evidence is dependent on rules of selectivity and exclusion. [65] If
evidence is the proponent’s projected inclusion, and the opponent’s intended exclusion, of significant
materials for the fact in issue, evidence can also become admissible simply for want of objection from
the adverse party.
The right to object is a mere privilege which the parties may waive; and if the ground for objection is
known and not reasonably made, the objection is deemed waived and the Court has no power, on its
own motion, to disregard the evidence.[66]
G. Direct and Indirect Evidence
A fact may be established directly or indirectly. If a fact is to be established directly, the evidence must be
the best there is; if indirectly or inferentially, it will have to be by circumstantial evidence, in which case the
chain of evidence on related facts must be so completely linked as to establish the ultimate fact without any
other reasonable interpretative alternative.[67]
All judicial evidence is either direct or circumstantial.[68] In this regard, People v. Sanota, et al.,[69] spoke of
consistent indoctrination that: “Direct evidence proves a challenged fact without drawing any inference.
Circumstantial evidence, on the other hand, ‘indirectly proves a fact in issue, such that the fact-finder must
draw an inference or reason from circumstantial evidence.’ The probative value of direct evidence is
generally neither greater than nor superior to circumstantial evidence. The Rules of Court do not distinguish
between ‘direct evidence of fact and evidence of circumstances from which the existence of a fact may be
inferred.’”
Given the co-equal status of direct evidence and circumstantial or indirect evidence, People v.
Manansala[70] underscored that “absence of direct evidence will not bar conviction of the accused when pieces
of circumstantial evidence satisfactorily prove the crime charged.”
H. Collateral Matters
Relative to Sec. 4, Rule 128, as amended, which generally proscribes collateral matters, these parallel facts
are those outside of the controversy, or are not directly connected with the principal matter or issue in
dispute.[71]
For instance, where the question between landlord and tenant was, whether the rent was payable quarterly,
or half-yearly, evidence of the mode in which other tenants of the same landlord paid their rent was held
inadmissible.[72]
Nonetheless, collateral facts can be allowed if they amount to indirect evidence such as circumstantial
evidence in Sec. 4, Rule 133, as amended.
In Dungo and Sibal, Jr. v. People,[73] the Supreme Court had the occasion to address the essence of
Rep. Act No. 8049, or the Anti-Hazing Law of 1995, when it acknowledged that “the crime of hazing is
shrouded in secrecy. Fraternities and sororities, especially the Greek organizations, are secretive in nature
and their members are reluctant to give any information regarding initiation rites. The silence is only broken
after someone has been injured so severely that medical attention is required. It is only at this point that the
secret is revealed and the activities become public. Bearing in mind the concealment of hazing, it is only
logical and proper for the prosecution to resort to the presentation of circumstantial evidence to prove it.”
Circumstantial evidence consists of proof of collateral facts and circumstances from which the main fact in
issue may be inferred based on reason and common experience. It 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. To uphold a
conviction based on circumstantial evidence, 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 the others, as the guilty person. Stated differently, the test to determine whether or not the
circumstantial evidence on record is sufficient to convict the accused is that the series of circumstances duly
proven must be consistent with each other and that each and every circumstance must be consistent with the
accused’s guilt and inconsistent with his innocence.[74]
Concerning sufficiency of circumstantial evidence for conviction in a criminal case under Sec. 4, Rule 133, as
amended, Jones was of the view that the concept of circumstantial evidence can apply to a civil case,
especially so when it has been observed that a fact can be proved directly or indirectly. A proposition cannot
be said to be established by circumstantial evidence, either in a civil or in a criminal prosecution, unless the
disclosed facts and circumstances shown are consistent therewith and inconsistent with any other rational
theory.[75] Dumont shared a similar perception that “[c]ircumstantial evidence presents itself equally in civil
and penal matters.”[76]
In his classic dissertation on the Law of Evidence, Wigmore spoke of the resonance of evidentiary facts
according to the proof or indication they afford as: (a) prospectant, (b) concomitant, or (c) retrospectant[77]
For the first classification on prospectant presumptive [78] evidence, or prior to the time of the disputed act
or fact, character, plan, design, or motive point forward to a future act, and it may be advocated that because
of the person’s character, design, or motive,[79] he or she was likely, or not, to do the act in the future.
As to the second grouping on accompanying evidence, “[a] fact having concomitant indication is one which
is thought of as being in existence at the time of and in connection with the act to be proved; the logical
indication or inference is that the person bearing that fact as a mark is thereby to be associated more or less
closely with the act.” It is either affirmative, e.g., X was at the place of murder, therefore he may have
committed it; or negative, e.g., X was at a different place at the time of the murder, therefore he did not
commit it.[80]
In retrospectant[81] indication, the inference looks backward from the evidentiary fact to the alleged
act, e.g., to show that A on January 1 stole a bicycle, there is offered the fact of his possession of the bicycle on
June 1. The probative force of this fact rests on the assumption that the hypothesis that will explain his
possession is that he obtained the bicycle by stealing it.[82]
I. Jurisprudence on Admissibility of Evidence: Search and Seizure Clause
1. Unreasonable Search
In In re: Motu Proprio Fact-finding Investigation on the Issuance of Search Warrant and Other Pending
Incidents in the Case of the Deceased Mayor Rolando Espinosa, Sr.,[83] the Supreme Court addressed
parameters in the issuance of a search warrant by trial court judges in a government-controlled
facility, particularly a penal institution. While excerpts of the 2015 BJMP Manual regarding guidelines
on handling inmates to deter smuggling of dangerous drugs and other contrabands in detention
facilities are pertinent only to correctional officers administering the detention facilities, such as the
BJMP, the provisions of the 2015 BJMP Manual “x x x do not confer non-correctional officers who are
not supervising detention facilities carte blanche to search inmates’ quarters or jail cells without
complying with the relevant provisions on searches and seizures in the Rules.”
Espinosa, Sr. also referred to the marked dichotomy between a protective measure in prison
management effected by correctional officers as opposed to a search relative to a criminal
investigation conducted by law enforcers other than correctional officers, such as the CIDG.
In a search conducted by jail guards, the search is routinary and is intended to preserve internal
order and security in the entire detention facility. A search conducted as a protective measure in
prison management is noncriminal in nature and does not require a finding of probable cause.
Meanwhile, a search carried out as an incident to a criminal investigation and intended to uncover
evidence of a crime may be narrower in scope and may be limited only to a specific jail cell and articles
specified in the warrant, as in the case. As a rule, a warrant is still necessary to execute a search in a
controlled detention facility in relation to a criminal investigation. Strict compliance with governing
laws, rules, and procedures on the issuance of search warrants and implementation of the search in a
controlled detention is required to carry out a valid search.
Espinosa, Sr. likewise emphasized that prior coordination with detention facility administrators for a
search warrant application by non-correctional law enforcers is not imperative if detention facility
administrators or detention officers are allegedly in cahoots or in conspiracy with jail inmates who
will have ample time to prepare for the search and hide their contraband.
Privacy essentially refers to the right to be left alone. [84] The constitutional injunction is not a
proscription of all searches and seizures but only of “unreasonable” searches and seizures. For search
or seizure to become unreasonable, there must be in the first place a search or seizure in the
constitutional sense. The Supreme Court in Valmonte and ULAP v. De Villa and NCR District
Command intoned that there is as yet no cause for the application of the constitutional rule when what
are involved are routine checks consisting of “a brief question or two. For as long as the vehicle is
neither searched nor its occupants subjected to a body search, and the inspection of the vehicle is
limited to a visual search, said routine checks cannot be regarded as violative of an individual’s right
against unreasonable search.”[85]
2. Administrative Search
To the problem of drug testing in Social Justice Society (SJS) v. Dangerous Drugs Board (DDB) and
Philippine Drug Enforcement Agency (PDEA),[86] it was implied that an administrative search appeared
to be beyond the context of an “unreasonable” invasion of privacy.
As to Rep. Act No. 10667[87] or the Philippine Competition Act, the Supreme Court issued the Rule on
Administrative Search and Inspection Under the Philippine Competition Act, [88] for the inspection of
business premises and other offices, land and vehicles used by an entity through an ex
parte application for an inspection order by the Philippine Competition Commission before the Special
Commercial Court.
3. Unwarranted Inquiry
Republic v. Manalo[89] construed the second paragraph of Article 26 of the Family Code by extending
the efficacy of foreign divorce to a Filipino even though the divorce decree was procured by the
Filipino. It was also observed in Manalo that an attempt to pry on the motive of a Filipino in marrying
an alien may face constitutional challenge under the concept of the right to privacy.
4. Search of Government Office Computer
Pollo v. Constantino-David, et al.,[90] discussed parameters of the ‘right to be left alone’[91] to a
situation where the office computer, assigned to a government worker, was subjected to a search by
the supervisor. When the data obtained from the government property yielded evidence of
‘moonlighting’ preparatory to the administrative charge and the employee’s dismissal from the
service, Pollo sustained the constitutionality of the search and seizure since there was no reasonable
expectation of privacy which can be invoked by the government employee in regard to the assigned
office computer.
5. Illicit Arrest
The invalidity of an arrest leads to several consequences among which are: (a) the failure to acquire
jurisdiction over the person of an accused; (b) criminal liability of law enforcers for illegal arrest; and
(c) any search incident to the arrest becomes invalid thus rendering the evidence acquired as
constitutionally inadmissible.[92]
 While an invalid arrest can impair the trial court’s acquisition of jurisdiction over the person of the
accused, the inability of the accused to impugn the mode of arrest, by subjecting himself to an
arraignment, participation during trial, and a belated attempt to question the warrantless arrest on
appeal, will not invalidate the judgment of conviction. As reiterated by the Supreme Court in People v.
Suwalat, it is settled that an accused is estopped from assailing any irregularity of his arrest if he fails
to raise this issue or to move for the quashal of the information against him on this ground before
arraignment.[93]
6. Right to be Forgotten
What complements the right to privacy is the right to an imperfect history and to suppress
potentially damaging internet information of a private individual. Under Art. 17 of the General Data
Protection Regulation (GDPR),[94] effective May 25, 2018,[95] the right to erasure or the right to be
forgotten, was acknowledged as a fundamental protection of natural persons within the European
Union (EU) and the European Economic Area (EEA), in relation to the processing of personal data.
In Google Spain SL and Google Inc. v. Agencia Española de Protección de Datos (AEPD) and Mario
Costeja González,[96] the right of an individual against obsolete digital information can subordinate
economic interest of the operator of the search engine.
A similar conclusion was reached in the subsequent case of NT1 and NT2 and Google LLC[97] where a
businessman succeeded in a lawsuit to force removal from search engines of his previous criminal
conviction. The assertion of misuse of private information was sustained but with Google’s exercise of
reasonable care, the claim for compensation or damages did not prosper.
In Google LLC v. CNIL,[98] the right to obscurity was construed as coextensive with the European Union.
7. Private Individual v. Private Individual
If the situation involves a violation by a private individual of another individual’s rights, the
transgressor may be subjected to other causes of action outside of the 1987 Constitution.[99]
There can be criminal and civil causes of action for violation of one’s privacy in Waterous Drug
Corporation and Co v. NLRC and Catolico[100] when a pharmacy clerk opened a letter for the pharmacist.
From the foregoing insights, the private individual, as transgressor of liberty can also be confronted
with a criminal indictment for qualified trespass to dwelling, other forms of trespass, grave, light, or
other light threats, grave, light, or other similar coercions, discovering secrets through seizure of
correspondence and revelation of industrial secrets.[101]
In Pilapil, Jr. v. Cu,[102] the Supreme Court had the opportunity to discuss anew the parameters of the
search and seizure clause, when it addressed the actuation of a Mayor and his team when they entered
mining sites based on reports of mining activities thereat, and when they effected a warrantless search
and seizure of explosives during an ocular inspection.
The rule of thumb, as may be deduced from Sec. 2, Art. III of the Constitution itself, is that searches
and seizures which are undertaken by the government outside the auspices of a valid search warrant
are considered unreasonable. To be regarded reasonable, government-led search and seizure must
generally be sanctioned by a judicial warrant issued in accordance with requirements prescribed in
the aforementioned constitutional provision.
The foregoing rule, however, is not without any exceptions. Indeed, jurisprudence has recognized
several, though very specific, instances where warrantless searches and seizures can be considered
reasonable and, hence, not subject to the exclusionary principle. Some of these instances, studded
throughout our case law, are:
a. Consented searches;
b. Searches incidental to a lawful arrest;
c. Searches of a moving vehicle;
d. Seizures of evidence in plain view;
e. Searches incident of inspection, supervision and regulation sanctioned by the State in the
exercise of its police power;
f. Customs searches;
g. Stop and frisk searches; and
h. Searches under exigent and emergency circumstances.
8. Drug-related Cases
In People v. Sapla,[103] the Supreme Court supplied a negative response to the question of whether the
police can conduct a warrantless search of a vehicle on the sole basis of an unverified tip from an
anonymous tipster.
 Sapla was not a legitimate search of a moving vehicle,[104] and assuming it was a valid search of a
moving vehicle, there was no probable cause prior to the search, more so when the police solely relied
on an anonymous tip, which is considered hearsay.[105] Sapla continued to relay that the Court
unequivocally declared in People v. Sison, et al.[106] that a solitary tip hardly suffices as probable cause
that warrants the conduct of a warrantless intrusive search and seizure.
Neither was there a valid consented search in Sapla since the totality of the evidence considered by
the Supreme Court from the factual backdrop did not disclose that accused-appellant Sapla’s apparent
consent to the search conducted by the police was unequivocal, specific, intelligently given, and
unattended by duress or coercion. In this regard, Sapla concluded that it cannot be seriously denied
that accused-appellant Sapla was subjected to a coercive environment, considering that he was
confronted by several armed police officers in a checkpoint.
In People v. Gabiosa, Sr.,[107] it was underscored by the Supreme Court that for the issuance of a search
warrant, there is no[108] need to examine both the applicant and the witness/es if either one of them is
sufficient to establish probable cause, amidst the contrary interpretation of the Court of Appeals to the
effect that both the complainant and witness/es must be examined by the judge before issuance of the
search warrant.
People v. Lim[109] reiterated the chain of custody rule as a variation of the principle that real evidence
must be authenticated prior to its admission into evidence. To establish a chain of custody sufficient to
make evidence admissible, the proponent needs only to prove a rational basis from which to conclude
that the evidence is what the party claims it to be. In other words, in a criminal case, the prosecution
must offer sufficient evidence from which the trier of fact could reasonably believe that an item still is
what the government claims it to be. Specifically in the prosecution of illegal drugs, the well-
established federal evidentiary rule in the United States is that when the evidence is not readily
identifiable and is susceptible to alteration by tampering or contamination, courts require a more
stringent foundation entailing a chain of custody of the item with sufficient completeness to render it
improbable that the original item has either been exchanged with another or been contaminated or
tampered with.
Thus, the links in the chain of custody that must be established are: (1) the seizure and marking, if
practicable, of the illegal drug recovered from the accused by the apprehending officer; (2) the
turnover of the seized illegal drug by the apprehending officer to the investigating officer; (3) the
turnover of the illegal drug by the investigating officer to the forensic chemist for laboratory
examination; and (4) the turnover and submission of the illegal drug from the forensic chemist to the
court. Lim concluded with a mandatory policy to address poorly built-up drug-related cases, thusly:
a. In the sworn statements/affidavits, the apprehending/seizing officers must state their
compliance with the requirements of Sec. 21(1) of Rep. Act No. 9165, as amended, and its IRR.
b. In case of non-observance of the provision, the apprehending/seizing officers must state the
justification or explanation therefor as well as the steps they have taken in order to preserve
the integrity and evidentiary value of the seized/confiscated items.
c. If there is no justification or explanation expressly declared in the sworn statements or
affidavits, the investigating fiscal must not immediately file the case before the court. Instead,
he or she must refer the case for further preliminary investigation in order to determine the
(non) existence of probable cause.
d. If the investigating fiscal filed the case despite such absence, the court may exercise its
discretion to either refuse to issue a commitment order (or warrant of arrest) or dismiss the
case outright for lack of probable cause in accordance with Sec. 5, Rule 112, Rules of Court.
Immediately after a buy-bust operation of marijuana sold by the accused-appellant to the poseur-
buyer, a search warrant obtained by the police was forthwith served against the accused-appellant
whose house and store yielded additional packets of marijuana in People v. Magayon.[110] To address
the propriety of the defendant’s conviction for the sale of marijuana, the Supreme Court utilized the
admissions of the accused-appellant on his counter-affidavit, while he was assisted by counsel before
the fiscal’s office, and when he sat on the witness stand during trial, which confirmed the whereabouts
of the prohibited items supposedly for his personal use.
In People v. Dejos, it was reiterated by the Supreme Court that if there is an agreement on the sale of
illegal drugs between the accused-appellant and the poseur-buyer, and the accused-appellant was
arrested before acceptance of the consideration of the sale, conviction of the accused-appellant for
illegal possession, rather than sale of, dangerous drugs is proper in keeping with the settled rule that
possession of dangerous drugs is necessarily included in the sale of prohibited drugs.[111]
In People v. Cariño,[112] the Supreme Court reiterated that for proving the charge of maintaining a
drug den under Sec. 6 of Rep. Act No. 9165, “two things must be established: (a) that the place is a den
– a place where any dangerous drug and/or controlled precursor and essential chemical is
administered, delivered, stored for illegal purposes, distributed, sold, or used in any form; and (b) that
the accused maintains the said place. It is not enough that the dangerous drug or drug paraphernalia
 were found in the place. More than a finding that the dangerous drug is being used thereat, it must also
be clearly shown that the accused is the maintainer or operator or the owner of the place where the
dangerous drug is used or sold.”[113] The existence of a drug den, as a lair or hideaway where
prohibited or regulated drugs are used in any form or are found, may be proved not only by direct
evidence but may also be established by proof of facts and circumstances, including evidence of the
general reputation of the house, or its general reputation among police officers.[114]
J. Body-Worn Cameras
As supplement to Rules 112, 113 and 126 of the Revised Rules on Criminal Procedure, the Supreme Court
approved the Rules on the Use of Body-Worn Cameras in the Execution of Warrants. [115] On account of
advances in technology, particularly the availability of body-worn cameras, or at least two alternative
recording devices with the minimum standard requirements, these digital devices can record the
circumstances surrounding execution of warrants. The Rules on the Use of Body-Worn Cameras were
applicable for pending search warrants or warrants of arrest and to those warrants issued that have not yet
been implemented or executed.[116] The Rules shall apply to all applications, issuances, and executions of
arrest and search warrants under the Revised Rules of Criminal Procedure, inclusive of warrantless arrests as
provided in Sec. 3, Rule 2 of the Rules.
With respect to the issuance of a search warrant, Sec. 2, Rule 126 of the 2000 Rules on Criminal Procedure
outlined the court where the application for a search warrant can be filed.[117]
But under Sec. 2, Rule 3 of the Rules on the Use of Body-Worn Cameras in the Execution of Warrants, the
search warrants in special criminal cases issued by Executive Judges of Regional Trial Courts serve as an
exception to Sec. 2, Rule 126.
In essence, Sec. 2, Rule 3 referred to the peculiar procedure, thusly: save for intellectual property violations
within the jurisdiction of the Special Commercial Courts, Executive Judges or Vice Executive Judges of the
Regional Trial Courts can act on applications from the National Bureau of Investigation (NBI), Philippine
National Police (PNP), National Anti-Crime Task Force, Philippine Drug Enforcement Agency (PDEA) and the
Bureau of Customs (BOC) for search warrants to be implemented within their judicial regions as to: (a)
heinous crimes, (b) illegal gambling, (c) illegal possession of firearms and ammunitions, (d) violations of
Rep. Act No. 9165 or the Dangerous Drugs Act of 2002, (e) Anti-Money Laundering Act of 2001, as amended,
(f) Customs Modernization and Tariff Act, and (g) other relevant laws that may be enacted by Congress and
included in the Rules from the Supreme Court. These applications shall be personally endorsed by heads of
their respective agencies, shall particularize the place to be searched or items subject to possible seizure, and
shall reflect compelling reasons for filing the application with the Executive Judges or Vice Executive Judges.
As a consequence of Sec. 2, Rule 3, the authority of Executive Judges of RTC, Manila and Quezon City to issue
search warrants for nationwide implementation under Sec.12, Chapter V of A.M. No. 03-8-02-SC, as amended,
was withdrawn.[118]
In the application for search warrants, availability or unavailability of body- worn cameras for execution of
search warrants shall be specified. If unavailable, alternative recording devices can be authorized upon
request. But multiple search warrants based on the same evidence filed in the same court shall be a ground
for denial. If already issued, this shall be a ground for quashal of the warrants.[119]
K. Cybercrime Warrants
On July 3, 2018, the Supreme Court issued an En Banc Resolution in A.M. No. 17-11-03-SC, effective on
August 15, 2018, about the Rule on Cybercrime Warrants. Among other matters, the Rule on Cybercrime
Warrants tackled the venue of criminal actions, where to file an application for a warrant, incidents related to
the warrant when a criminal action is instituted, how the applicant will be examined, effective period of the
warrants, extraterritorial service thereof, preservation, disclosure, interception, search, seizure and
communication of computer data, including preservation and destruction of computer data.
L. Privacy of Communication
An additional form of search is State invasion of communication [120] and correspondence among individuals
under Sec. 3, Art. 3 of the 1987 Constitution. Like Sec. 2, Art. 3 on unreasonable search, seizure and arrest, the
exclusionary rule forbids admission of illegally obtained evidence.[121]
Sanchez v. Darroca, et al. (In re Sanchez)[122] is the authority for the view that constant police surveillance
and monitoring of a spouse and her children because of their relationship with a suspected member of the
New People’s Army, who passed away, can give rise to a Petition for a Writ of Amparo. In addition, the
spouse’s relationship with her dead husband insulated her and their children from inquiries as to the dead
husband’s alleged ties with the NPA based on the spousal and filial privileges. Even the act of the police in
taking a photo of the spouse, who came to the funeral parlor to identify her husband, and later displaying her
photo in the police station, were condemned by the Supreme Court as violative of the right to privacy.
M. Custodial Interrogation
 When a suspect is arrested for the commission of a crime vis-á-vis a confession in Sec. 34, Rule 130 of the
Revised Rules on Evidence, as amended, Sec. 12, Art. III of the 1987 Constitution requires compliance by law
enforcement authorities with what has been referred to as the Miranda rights.[123]
In Secs. 12 and 17, Art. III of the 1987 Constitution, in relation to Sec. 21 of Rep. Act No. 9165, or the chain of
custody rule, the right to remain silent and against self-incrimination is not limited to protecting the accused
from uncounseled statements made while in custody, but also includes his or her positive acts, such as signing
an inventory. After all, both the accused’s statements and acts may be used against him or her later on in a
criminal proceeding. But the failure of the prosecution to show that the accused utilized the right to remain
silent when the accused refused to sign the certificate of inventory and to be photographed can be an
incremental ground to entertain reasonable doubt.[124]
Since custodial investigation is questioning conducted by law enforcement officers after a person’s
apprehension for an offense or deprivation of liberty in any significant way, [125] the exclusionary clause
excludes an administrative investigation, like in Fajardo v. People which involved a written explanation for
the cashier to account for missing funds.[126] But an inquiry conducted
by barangay tanods, barangay chair[person], or a barangay-based volunteer organization in the nature of a
watch group, or “bantay bayan,” will require adherence with the Miranda rights.[127]
Sec. 12, Art. III of the 1987 Constitution was supplemented by Rep. Act No. 7438, otherwise known as the
“Custodial Investigation Law of 1992,” which “was created pursuant to the State policy of valuing the ‘dignity
of every human being’ and guaranteeing ‘full respect for human rights.’ It defines the positive rights of all
persons under custodial investigation, and outlines the concomitant duties of arresting, detaining or
investigating officers to secure said rights, which include the detained person’s right to be assisted by
counsel. In addition, Rep. Act No. 9745, otherwise known as the “Anti-Torture Act of 2009” outlaws, foremost,
any act that subjects people held in custody to any form of physical, psychological or mental harm, force,
violence, threat or intimidation or any other act which degrades human dignity.”[128]
Any perceived violation of Rep. Act No. 7438 assumes execution of an extrajudicial confession during
custodial interrogation in line with People v. Lugnasin and Guerrero,[129] although it was discussed by the
Supreme Court in People v. Satorre[130] that a confession supposedly made by an accused before
a barangay captain can be oral, and under the previous Sec. 33, Rule 130, it made no distinction between a
judicial or extrajudicial confession. At any rate, for sufficiency of conviction, a valid extrajudicial confession
requires corroboration of evidence of corpus delicti.[131]
N. Consequences for Non-appearance or Oversight During Pre-Trial in a Civil Case
1. Absence of Party and Counsel
Considering the mandatory nature of a pre-trial conference in Sec. 2, Rule 18, as amended, the failure
without just cause of a party and counsel to appear during pre-trial, despite notice, shall result in a
waiver of any objections to the faithfulness of the reproductions marked, or their genuineness and
due execution.
Incorporated in the Pre-Trial Order under Sec. 7, Rule 18, as amended, is the caveat that the absence,
without valid cause, of the opposing party during the presentation of a party’s witness will be deemed
as a waiver of the right to object and conduct cross-examination of the party’s witness and
presentation of the party’s next witness will proceed.[132]
2. Failure to Bring Evidence
Also, the failure without just cause of a party and/or counsel to bring the evidence required shall be
deemed a waiver of the presentation of such evidence, without prejudice to a reservation of evidence
not available at the pre-trial conference, viz.: (a) for testimonial evidence, by giving the name or
position and the nature of the testimony of the proposed witness; (b) for documentary evidence and
other object evidence, by giving a particular description of the evidence.
3. Non-appearance at Pre-Trial Conference in a Criminal Case
In Sec. 3, Rule 118 of the 2000 Rules on Criminal Procedure, if the counsel for the accused or the
prosecutor does not appear at the pre-trial conference and does not offer an acceptable excuse for his
or her lack of cooperation, the court may impose proper sanctions or penalties.
Under the Revised Guidelines for Continuous Trial in Criminal Cases, if the parties are absent despite
notice, the court can proceed with the pre-trial with the counsel for the accused and the trial
prosecutor. Stipulations shall be done with the court’s active participation, documentary evidence
shall be marked, the Pre-Trial Order shall be served immediately on the same day after the pre-trial
conference and the court must follow the Guidelines to be Observed in the Conduct of Pre-Trial under
A.M. No. 03-1-09-SC.[133]
4. Parameters of Other Modes of Exclusion
It has been ruled that a court cannot reject motu proprio documentary evidence,[134] but an
immaterial question posed by counsel can be restrained by the court because the judge has the duty
toward expeditious administration of justice, per People v. Moralde.[135] But with the modified rule on
 striking out an answer, as an incremental form of exclusion of evidence in Sec. 39, Rule 132, as
amended, an anticipatory response, irresponsive reaction, narrative answer, or testimony beyond
court-imposed limit, can only be excluded on proper motion of the aggrieved party.
In People v. Nuñez, the Court had the opportunity to state that “any objection to the legality of the
search warrant and the admissibility of the evidence obtained thereby was deemed waived when no
objection was raised by appellant during trial. For sure, the right to be secure from unreasonable
searches and seizures, like any other right, can be waived and the waiver may be trade expressly or
impliedly.” So must it be.[136]
Under Art. III or the Bill of Rights Clause of the 1987 Constitution, evidence can become inadmissible
if, among other matters, it was procured in violation of the right against unreasonable search and
seizure, the right to privacy of communication and correspondence, save upon lawful order of the
court, or when public safety or order requires otherwise, non-compliance with the Miranda Rights
during custodial interrogation, or transgression of the right against self- incrimination.[137]
If admissibility of evidence is determined at the time of offer, and any objection interposed prior to
an offer is premature,[138] a different rule is now reflected in the second paragraph of Sec. 36, Rule 132
to the effect that absence of a formal offer to testimonial evidence must now be objected to as soon as
the witness testifies.
II.
(RULE 129 – WHAT NEED NOT BE PROVED)
A. Time-saving Devices
While admissibility of evidence must generally depend on twin axioms of relevancy and competency of
evidence laid before the court to support a factual assertion, a party can be relieved of the burden to prove an
averment through time-saving devices in Rule 129 and Rule 131, as amended.
If presentation of evidence is necessary for a fact in issue, the task of the fact-finder can become superfluous
in any of these instances: (1) judicial notice of a given matter, [139] or (2) an adverse party’s or counsel’s
judicial admission,[140] or (3) a party who laid the foundation for, and later invoked, a presumption.[141]
Hence, no evidence need be produced to establish: (a) that which is admitted, (b) that of which the court
takes judicial notice, or (c) that which is presumed.[142]
Although judicial notice and judicial admission can displace the necessity for any evidence of either concept,
a respected author remarked that in the case of a presumption, “the proponent still has to introduce evidence
of the basis of the presumption, that is, he has to introduce evidence of the existence or non- existence of the
facts from which the court can draw the inference of the fact in issue.” [143] Once the basic fact or facts are
established, the resulting presumed fact arises, unless it is refuted by contravening evidence.[144]
B. Judicial Notice
A variety of facts may be safely assumed to be within the knowledge of the court and therefore they need
not be established by proof. Referring to the origin of the doctrine of judicial notice, Professor Thayer
observed: “The maxim that what is known need not be proved, manifesta (or notoria) non indigent
probatione, may be traced far back in the civil and the canon law.”[145]
C. Concept
Judicial notice is the cognizance of certain facts that judges may properly take and act on without proof
because these facts are already known to them; it is the duty of the court to assume something as matters of
fact without need of further evidentiary support.[146]
D. Philosophy
The principle is based on convenience and expediency in securing and introducing evidence on matters
which are not ordinarily capable of dispute and are not bona fide disputed.[147] It supersedes formal proof, yet
it carries equal force.[148] As a means of establishing facts, judicial notice is superior to evidence.[149]
E. Caution
The doctrine of judicial notice rests on the wisdom and discretion of the courts. The power to take judicial
notice is to be exercised by courts with caution; care must be taken that the requisite notoriety exists; and
every reasonable doubt on the subject should be promptly resolved in the negative.[150]
F. Scope
In general, judicial notice covers (1) matters which are so notorious that the production of evidence would
be unnecessary; (2) matters which the judicial function supposes the judge to be acquainted with, either
actually or in theory; (3) sundry matters not exactly included under either of these heads.[151]
G. Personal Knowledge of the Judge is Irrelevant
 Judicial notice is different from personal knowledge of the judge. According to Wigmore, where to draw the
line between knowledge by notoriety and knowledge by personal observation may sometimes be difficult but
the principle is plain.[152] Non refert quid notum sit judici si notum non sit in forma judicii. [153] As has been said,
judicial knowledge is that which a judge has as judge; it does not include the personal or particular
knowledge which he or she acquires while judge or which becomes important in a judicial inquiry after he or
she has become one.[154]
A fact may be of judicial notice and not be of the judge’s personal knowledge, and vice-versa, as this rule
refers to facts which “ought to be known to judges because of their judicial functions” [155] which principle was
reiterated by the Supreme Court in Juan v. Juan and Laundromatic Corporation[156] when it discussed an article
published in the internet which was utilized by the trial court judge in resolving the dispute over the parties’
separate claim over “Lavandera Ko,” a musical composition with words, protected under the copyright law.
H. Mandatory
Under the previous and new rule, judicial notice was classified as mandatory and discretionary.
With the addition of the phrase “National Government of the Philippines,” in Sec. 1, Rule 129, as amended,
there can be mandatory judicial notice in any of these items: the existence and territorial extent of states,
their political history, forms of government and symbols of nationality, the law of nations, the admiralty and
maritime courts of the world and their seals, the political constitution and history of the Philippines, the
official acts of the legislative, executive and judicial departments of the National Government of the
Philippines, the laws of nature, the measure of time, and the geographical divisions.[157]
In Atienza v. Board of Medicine and Sioson,[158] involving a case lodged before the Board of Medicine for
negligence of the doctor who removed a fully functional right kidney instead of the non-functioning left
kidney of the patient, the Supreme Court declared that the proper anatomical locations of kidneys need not be
proved by exhibits since it is covered by mandatory judicial notice.
Geographical divisions are among matters that courts should take judicial notice of, as relayed in B.E. San
Diego, Inc. v. Court of Appeals and Matias,[159] and from the given fact that Barrio Tinajeros is adjacent
to Barrio Catmon, the Supreme Court found it likely that, indeed, the two barrios previously formed one
geographical unit.
I. Discretionary
As distinguished from compulsory judicial notice, (a) those of public knowledge, or (b) are capable of
unquestionable demonstration, or (c) ought to be known to judges because of their judicial functions, may
become the subject of discretionary judicial notice in Sec. 2, Rule 129.
The first group has reference to a matter “which is so, generally taken to be true in the adjustment of human
relations in contemporary society that in existing state of knowledge it is incapable of dispute among
reasonable men.”[160]
The second group refers to a matter which is capable of immediate and accurate determination by resort to
easily accessible sources of indisputable accuracy.[161]
The third group relates to official and legal matters.[162]
What the Supreme Court considered in People v. Olarte to be discretionary judicial notice was the
availability in the market of different models of detonating fuses used in hand grenade assembly. These
detonating fuses include the following models: M204A1, M204A2, M206A2, M213, M228, and the C12 integral
fuse (to date, there is no known fuse assembly model denominated as “M204X2”). It means that the marking
denominated as “M204A2” on the fuse assembly of the subject grenade does not refer to the serial number –
it pertains to the model number.[163]
The price of diesel fuel, subject matter of the qualified theft case against the driver of the truck who was
tasked to deliver the fuel to its destination, was considered as a matter of public knowledge, and thus within
discretionary judicial notice in Candelaria v. People.[164]
In this age of modern technology, the courts may take judicial notice that business transactions may be
made by individuals through teleconferencing. Teleconferencing is interactive group communication (three
or more people in two or more locations) through an electronic medium. In general terms, teleconferencing
can bring people together under one roof even though they are separated by hundreds of miles. This type of
group communication may be used in a number of ways, and have three basic types: (1) video conferencing –
television-like communication augmented with sound; (2) computer conferencing – printed communication
through keyboard terminals, and (3) audio-conferencing – verbal communication via the telephone with
optional capacity for telewriting or telecopying.
A teleconference represents a unique alternative to face-to-face (FTF) meetings. It was first introduced in
the 1960s with American Telephone and Telegraph’s Picturephone. At that time, however, no demand existed
for the new technology. Travel costs were reasonable and consumers were unwilling to pay the monthly
service charge for using the picturephone, which was regarded as more of a novelty than as an actual means
for everyday communication.[165]
J. Mandatory or Discretionary?
Whether judicial notice shall be mandatory or merely permissive is a question on which it is difficult to lay
down a general rule. For the judge to refuse to take judicial notice of matters that are clearly certain and
disputable would be error, but he or she may properly require proof of less certain matters. [166] From the
epigraph and text of Secs. 1 and 2, Rule 129, it is clear that there are facts which the court shall take judicial
notice and which the court may take judicial notice.
In In re Bulayo,[167] the Supreme Court clarified that, in the process of resolving a petition for adoption, the
diplomatic relations between the Philippines and Japan is both mandatory and discretionary judicial notice in
Secs. 1 and 2, Rule 129 because “[d]iplomatic relations form part of the official acts of the Executive
Department of our Government. They are also matters of public knowledge.”
K. Procedure for Discretionary Judicial Notice
Sec. 3, Rule 129 prescribed a modified process for the trial or appellate court’s judicial notice during a
hearing for the propriety of taking judicial notice.
L. Manner of Hearing
In the application of the principle of due process, what is sought to be safeguarded is not lack of previous
notice but the denial of the opportunity to be heard. To reiterate, as long as a party was given the opportunity
to defend his interests in due course, he cannot be said to have been denied due process. [168] While a formal
trial-type hearing is the usual scene in a judicial proceeding, the essence of due process is simply extending
the opportunity to be heard. As such, the hearing for the propriety of taking judicial notice of any matter can
consist of an exchange of papers from the parties, like what transpired in Republic v. Sandiganbayan, et al.
[169]
Indeed, no formal scheme of hearing nor any procedure for giving notice to adverse parties is provided or
contemplated.[170]
M. Stages
In addition to the trial phase, the pre-trial conference can also give rise to a hearing, motu proprio or upon
motion, for the propriety of taking judicial notice of any matter before the trial court, or on appeal, if such
matter is decisive of a material issue in the case. [171] Significant jottings from the Rules Committee, which
drafted the new rules on evidence, explained that the word “motion”, in lieu of the word “request”, was the
more apt or accurate word for Sec. 3, Rule 129. The words “on the propriety of taking” judicial notice have
been added to clarify the purpose of the hearing i.e., whether the matter involved is a proper subject of
discretionary judicial notice.[172]
N. Jurisprudence
A survey of cases resolved by the Supreme Court conveyed distinct approaches on the propriety of taking
judicial notice in Sec. 3, Rule 129.
In view of previous Decisions of the Supreme Court, inclusive of guidelines in the determination of just
compensation laid down by Sec. 17 of Rep. Act No. 6657 and applicable DAR regulations, in particular, DAR
Administrative Order No. 6, series of 1992, as amended by DAR Administrative Order No. 11, series of 1994,
the Regional Trial Court, as Special Agrarian Court, can hardly take judicial notice of the nature of the land as
commercial, per Land Bank of the Philippines v. Honeycomb Farms Corporation.[173]
As emphasized in Herrera, et al. v. Bollos and Go,[174] if a factual matter is in controversy, a reversal on appeal
by the Second Level Court of the First Level Court’s dismissal of a forcible entry case does not imply an
appellate authority to fix the rental value of the premises without supporting evidence.
Based on Silkair (Singapore) Pte. Ltd. v. Commissioner of Internal Revenue,[175] during the hearing to evaluate
the propriety of taking judicial notice, presentation of the original of the subject document is a must to hurdle
the test of its admissibility. Prior to the amendments introduced under the Original Document Rule,
[176]
submission of a photocopy or xerox of a document will not suffice, on proper objection from the adverse
party.
O. Statements of a Party’s Interest
In a legal dispute, it is not uncommon for a party to furnish evidence in his or her favor or it may be against
his or her interest.
P. Self-regarding
Evidence for or against a party which is afforded by the language or one’s demeanor or of those whom one
represents, or those who represent the other can be regarded as “self-regarding.” When in favor of the party
supplying it, the evidence may be said to be “self-serving”; when otherwise, “self-harming.” The rule of law
with respect to self-regarding evidence is, that when in the self-serving form it is not in general receivable;
but that in self-harming form, it is, with few exceptions, receivable, and is usually considered proof of a very
satisfactory kind.[177]
Q. Self-serving
 If an extrajudicial evidence is in favor of a party’s interest, and it is sought to be admitted before a judicial
proceeding, it is considered “self-serving” and treated as inadmissible. [178] To reiterate Hernandez, self-
serving statements are those made by a party out of court advocating his own interest; they do not include a
party’s testimony as a witness in court. It follows that if a party or witness testifies in open-court, and the
statement is favorable to the declarant, it cannot be properly regarded as “self-serving” since it is not
extrajudicial and there is an opportunity for cross-examination.
R. Self-harming Statements in General
An admission is any statement of fact made by a party against his interest or unfavorable to the conclusion
for which he contends or is inconsistent with the facts alleged by him. [179] As a general proposition, it is a
substitute for evidence in that it does away with the need for evidence.[180]
To be competent as an admission the statement must be one of fact. A statement which is a mere opinion or
conclusion of law is as a rule inadmissible. An admission by a party of his fault or of his adversary’s freedom
from fault is generally held admissible.[181]
Admissions are voluntary acknowledgments of the existence or truth of certain facts, made by a party either
orally, in writing or by conduct.[182] The rule which permits the admissions of a party as evidence against him
or her is limited to statements freely and voluntarily made. Hence, a statement obtained or made under
duress, particularly when coupled with fraud is not competent as an admission.[183]
The rule that admits statements against a declarant’s interest is based on the psychological assumption that
a person does not make personally disserving statements unless they are true. [184] No man [person] shall be
allowed to make evidence for himself or [herself]. But, on the other hand, universal experience testifies that,
as men [people] consult their own interests, and seek their own advantage, whatever they say or admit
against their interest or advantage may, with tolerable safety, be taken to be true as against them, at least
until the contrary appears.[185]
S. Forms of an Admission
1. Judicial; Extrajudicial
An admission may either be judicial, if made in the course of judicial proceedings, [186] extrajudicial, if
made under other circumstances,[187] or a declaration against interest, as an exception to the hearsay
evidence rule.[188]
Examples of an extrajudicial admission include flight, escape, resistance or concealment, fabrication
and suppression of evidence.[189] In People v. Erardo,[190] the act of the accused-appellant, and his
brother, in going to the house of the victim of rape to ask for forgiveness was considered an
undeniable indication of guilt.
2. Express; Implied
An admission can also be express, in definite, certain and unequivocal language, [191] or implied, if the
admission can be inferred from the act, declaration or omission of a party.
An express admission is a direct admission created by words while an implied admission is an
indirect admission inferred from conduct.[192] A statement is not competent as an admission where it
does not, under a reasonable construction, appear to admit or acknowledge the fact which is sought to
be proved by it. Hence, mere conjectures or suggestions as to what might have happened if certain
circumstances had not occurred are not competent. It is not, however, necessary that the statement
should be a direct admission; it may be an indirect admission, as where it bears on the issue
incidentally or circumstantially.[193]
T. Admission; Confession
The term “admission” is an acknowledgment of a fact usually applied to both civil and criminal cases but the
recognition of criminal conduct or acknowledgment of guilt is a confession[194] such as the one specified in
Sec. 34, Rule 130, as amended.
With reference to sufficiency in evidence for a conviction, a confession is divided into two classes: (a)
judicial and (b) extrajudicial. Judicial confessions are those which are made before the magistrate, or in court,
in the due course of legal proceedings, like the plea of guilt in Secs. 2 to 4, Rule 116 of the 2000 Rules on
Criminal Procedure.
Pursuant to People v. Pagal,[195] in a capital offense, the mere plea of guilt by the accused will not suffice for
conviction due to the three-fold duties of the judge as prescribed in Sec. 3, Rule 116 of the 2000 Rules on
Criminal Procedure, viz.: (a) to conduct searching inquiry into the voluntariness and full comprehension of
the consequences of the defendant’s plea, (b) to require the prosecution to prove the defendant’s guilt and
precise degree of culpability, and (c) to allow the accused to present evidence for the defense.
An extrajudicial confession is one made under Sec. 34, Rule 130, as amended, usually during custodial
interrogation under Sec. 12, Art. III of the 1987 Constitution, and Rep. Act No. 7438.[196]
 By itself, a valid and voluntary extrajudicial confession from the accused shall not be sufficient for
conviction unless corroborated by evidence of corpus delicti, pursuant to Sec. 3, Rule 133, as amended. What
must be corroborated is the extrajudicial confession and not the testimony of the person to whom the
confession is made, and the corroborative evidence required is not the testimony of another person who
heard the confession but the evidence of corpus delicti.[197] The rule that an extrajudicial confession is
insufficient for conviction unless corroborated by evidence of corpus delicti was intended to guard against
conviction upon false confession.[198]
U. Basis and Effect of Admission
Admissions may be based either upon personal knowledge, or hearsay information. The source of
information is immaterial and the ground for admissibility of an admission is the adverse interest of the
person who made it.[199]
Evidence for, and offer of, a judicial admission will be unnecessary since Sec. 4, Rule 129 is categorical that it
“does not require proof.” Based on Sec. 27, Rule 130 of the current rule, an extrajudicial admission, on the
other hand, requires evidence and offer as such, like an admission in a superseded pleading in Sec. 8, Rule 10,
as amended.[200] As an exception to the hearsay evidence rule, a declaration against interest from a person
deceased or unable to testify, about the declarant’s unfavorable statement, can likewise be received in
evidence upon offer as such.[201]
Sec. 4, Rule 129 of the Revised Rules on Evidence refers to a judicial admission while Sec. 27, Rule 130 is
considered an extrajudicial admission, and Sec. 40, Rule 130 is a declaration against interest. The other aspect
of the extrajudicial admission in Sec. 27, Rule 130 is the admission by silence in Sec. 33, Rule 130, as
amended.
V. Other Conduct Which May or May Not Amount to an Admission
1. Offer of Compromise
Under Sec. 28, Rule 130, as amended, there are different effects of an offer of compromise:
(a) In a civil case, an offer of compromise is not an admission of any liability and is not
admissible against the offeror. Neither is an offer to pay or the payment of medical,
hospital or other expenses occasioned by an injury admissible as proof of civil or
criminal liability for the injury;
(b) In a civil case, evidence of conduct or statement in compromise negotiation is not
admissible unless it amounts to discoverable evidence, or as proof of bias of a witness,
negativing a contention of undue delay, or proving an effect to obstruct a criminal
investigation or prosecution;
(c) In a criminal case, an offer of compromise by the accused may be received in
evidence as an implied admission of guilt, unless it involves a quasi-offense or if
permitted by law, such as what the Supreme Court reiterated in Kepco Philippines
Corporation v. Commissioner of Internal Revenue on the power of the CIR to compromise
deficiency taxes;[202]
However, under Sec. 1 of Rep. Act No. 11569,[203] or the Act which extended the Estate
Tax Amnesty until June 14, 2023, the availment of the Estate Tax Amnesty and the
issuance of the corresponding Acceptance Payment Form do not imply any admission of
criminal, civil or administrative liability on the part of the availing estate;
(d) In a criminal case, a withdrawn plea of guilt, a rejected offer of plea of guilt to a lesser
offense, or that made in an unsuccessful plea bargaining cannot be received in evidence
against the accused.
2. Statement of an Independent Fact
An unconditional, rather than hypothetical, assertion or acknowledgment of a fact, can be received in
evidence as a statement of an independent fact. For instance, if there is an express or implied
recognition of a fact, such as a loan or liability, and the only question left is the amount to be paid, such
conduct of a party can be received in evidence against the offeror.[204]
But if there is simply an amorphous statement from the accused in a criminal case for murder, like
in People v. Galvez,[205] where there was even no presentation by the prosecution of the alleged offer of
the compromise, no implied admission of guilt can thus be attributed against the accused.
3. Admission by a Third Party
Within the old and the current rules on evidence are other admissions, such as an admission by a
third party,[206] or what is referred to as the first branch of the rule on res inter alios acta alteri nocere
non debet rule. It is basic that the rights of a party cannot be prejudiced by an act, declaration, or
omission of another, unless there is, for instance, an admission by silence. [207] Necessarily,
things done between strangers ought not to injure those who are not parties to them.[208]
 Tamargo v. Awingan, et al.,[209] reiterated the view that on a principle of good faith and mutual
convenience, a man’s own acts are binding upon himself, and are evidence against him. So are his
conduct and declarations. Yet it would not only be rightly inconvenient, but also manifestly unjust, that
a man should be bound by the acts of mere unauthorized strangers; and if a party ought not to be
bound by the acts of strangers, neither ought their acts or conduct be used as evidence against him.
4. Excepted Cases
(a) Cohesive Interest
In specified instances, the act, declaration or omission of a third person may prejudice a party
where the admission came from a third person who is: (a) a co-partner, agent, joint owner, joint
debtor, or other person jointly interested,[210] (b) a conspirator,[211] or (c) privy.[212] In any of
these exceptions, a party can be affected by another due to cohesive interest arising from a
vicarious admission of another with a juridical link to a party, provided the relationship is
established by evidence aliunde other than the admission, such as the admission by a co-
partner, agent, joint owner, joint debtor, or other person jointly interested, or admission by a
co-conspirator.
(b) Admission by Silence
An admission can also be implied by silence or acquiescence of a party, such as in Sec. 33, Rule
130, as amended, where the act or declaration is made by another person in the presence and
within the hearing or observation of a party who does or says nothing when the act or
declaration is such as naturally to call for action or comment if not true, and when proper and
possible for the party to do so.
But the acquiescence, to have the effect of an admission, must exhibit some act of the mind,
and amount to voluntary demeanor or conduct of the party. And whether it is acquiescence in
the conduct or in the language of others, it must plainly appear that such conduct was fully
known, or the language fully understood by the party, before any inference can be drawn from
his [or her] passiveness or silence. The circumstances, too, must be not only such as afforded
him [or her] an opportunity to act or to speak, but such also as would properly and naturally
call for some action or reply, from men [people] similarly situated.[213]
In Reynes v. Office of the Ombudsman (Visayas), et al.,[214] it was relayed that “the provision on
admission by silence refers to any ‘act or declaration made in the presence and within the
hearing [of another],’ not to a declaration made in written correspondences.” In this case, a
letter with grave imputations of illegal exactions against a chief executive of a local government
unit who participated in the illegal collection of garbage fees, without legal authority therefor,
was equated with an admission by silence considering the absence of a response from
the punong barangay despite opportunity to do so.
On the other hand, the rule on admission by silence was qualified in VDM Trading, Inc.
and Spouses Domingo v. Carungcong and Wack Wack Twin Towers Condomimium Association,
Inc.,[215] to the effect that no adverse inference can be drawn from mere inability to react to a
handwritten report, in default of mutual correspondence: “x x x jurisprudence holds that the
rule on admission by silence applies to adverse statements in writing if the party was carrying
on a mutual correspondence with the declarant. However, if there was no such mutual
correspondence, the rule is relaxed on the theory that while the party would have immediately
reacted by a denial if the statements were orally made in his presence, such prompt response
can generally not be expected if the party still has to resort to a written reply.” Neither is there
an admission by silence if a person kept silent during custodial interrogation due to his right to
keep mum, or, to repeat, if no response to a letter was made in the absence of
mutual correspondence.[216]
The second branch of the res inter alios acta rule is similar acts as evidence.[217]
Simply put, the proscription on admissibility of evidence of similar acts is based on the idea
that a man’s mind or conduct is never constant. [218] By way of exception, evidence of similar acts
may frequently become relevant, especially to actions based on fraud and deceit, because it
sheds light on the state of mind or knowledge of a person; it provides insight into such person’s
motive or intent; it uncovers a scheme, design or plan, or it reveals a mistake.[219]
On previous conduct as evidence, Cruz, et al. v. Court of Appeals and Spouses
Malolos[220] discussed the rationale of the rule:
Res inter alios acta, as a general rule, prohibits the admission of evidence that
tends to show that what a person has done at one time is probative of the
contention that he has done a similar act at another time. Evidence of similar
acts or occurrences compels the defendant to meet allegations that are not
mentioned in the complaint, confuses him in his defense, raises a variety of
irrelevant issues, and diverts the attention of the court from the issues
 immediately before it. Hence, this evidentiary rule guards against the practical
inconvenience of trying collateral issues and protracting the trial and prevents
surprise or other mischief prejudicial to litigants.
The rule, however, is not without exception. While inadmissible
in general, collateral facts may be received as evidence under exceptional
circumstances, as when there is a rational similarity or resemblance between
the conditions giving rise to the fact offered and the circumstances surrounding
the issue or fact to be proved. Evidence of similar acts may frequently become
relevant, especially in actions based on fraud and deceit, because it sheds light
on the state of mind or knowledge of a person; it provides insight into such
person’s motive or intent; it uncovers a scheme, design or plan; or it reveals a
mistake.
Sec. 6 of Rep. Act No. 8505, approved on February 13, 1998, refers to a rape shield since it
provides that: “In prosecutions for rape, evidence of complainant’s past sexual conduct, opinion
thereof or of his or her reputation shall not be admitted unless, and only to the extent that the
court finds, that such evidence is material and relevant to the case.”[221]
W. Judicial Admission
A judicial admission in Sec. 4, Rule 129 can arise from an oral or written statement from a party in the
course of the proceedings in the same case. It does not require proof and it can only be contradicted through
palpable mistake or that the imputed admission was not, in fact, made.
X. Changes
Under the new rule, apart from substitution of the word “verbal” to “oral” judicial admission, which was
considered the most apt term, there was a change in phraseology of an exception, viz.: “the imputed
admission was not, in fact, made.”[222]
Y. Basis
As an application of the law on estoppel,[223] a judicial admission from a party can result from pleadings, pre-
trial, trial, or other proceedings in the same case, like motions, petitions, applications, depositions, affidavits
or other documents filed in the case. It binds the party and it precludes contradiction or disavowal unless (a)
it was made through palpable mistake, or (b) no imputed admission was, in fact, made.[224]
Z. Modes to Contradict a Judicial Admission
Under the previous rule on judicial admission, it can only be contradicted upon explanation of palpable
mistake or no such admission was made,[225] which exceptions were essentially incorporated in Sec. 4, Rule
129, as amended.
1. Palpable Mistake
In Land Bank of the Philippines v. Navarro,[226] palpable mistake in a stipulation of facts was
acknowledged by the Supreme Court since it was ascertained that there was merely a clerical
oversight in the arithmetical computation of the total areas of the hectarage for agrarian reform
purposes.
Per the interpretation in Bayas and Matuday v. Sandiganbayan (First Division), et al., [227] palpable
mistake must be one of fact and not “a mere lack of full knowledge of fact because of failure to exercise
due diligence in ascertaining it.” Thus, a unilateral rescission of the Joint Stipulation of Facts, on the
mere ground that it would allegedly put the accused at a disadvantage, will not be permitted,
especially so when the parties volunteered to make the Joint Stipulation of Facts. Furthermore, a new
counsel cannot justify such withdrawal by the simple expedient of passing the blame on the previous
counsel, who had supposedly not sufficiently discharged his duty to the client. In addition, as between
the parties, court approval and issuance of a pre-trial order are not indispensable for validity of a
stipulation of facts in a criminal case despite the language of Sec. 2, Rule 118 of the 2000 Rules of
Criminal Procedure:
Based on the foregoing provision, for a pre-trial agreement to be binding on the accused, it must
satisfy the following conditions: (1) the agreement or admission must be in writing, and (2) it must be
signed by both the accused and their counsel. The court’s approval, mentioned in the last sentence of
the above-quoted section, is not needed to make the stipulations binding on the parties. Such approval
is necessary merely to emphasize the supervision by the court over the case and to enable it to control
the flow of the proceedings.
2. Disclaimer
The second exception under the previous rule that no such admission was made allows one to
contradict an admission by denying that he or she made such an admission.[228]
 Exposition in Bitong v. Court of Appeals, et al.,[229] was clear that judicial admissions cannot be
construed from statements on a pleading which are not definite and certain enough due to qualifying
phrases such as “insofar as they are limited, qualified and/or expanded by,” “the truth being as stated
in the Affirmative Allegations/Defenses of this Answer.”
AA. Waiver of Proof
A party who judicially admits a fact cannot later challenge the fact since a judicial admission is a waiver of
proof;[230] production of evidence is dispensed with. A judicial admission also removes an admitted fact from
the field of controversy. Consequently, an admission made in the pleadings cannot be controverted by the
party making such admission and are conclusive as to such party, and all proofs to the contrary or
inconsistent therewith should be ignored, whether objection is interposed by the party or not. The
allegations, statements or admissions contained in a pleading are conclusive as against the pleader. A party
cannot subsequently take a position contrary of or inconsistent with what was pleaded and thus, evidence to
override a judicial admission must be ignored.[231]
BB. Waiver of the Benefit of a Judicial Admission
From the standpoint of the adverse party who initially enjoyed the benefit of a judicial admission from the
other party, the utility of a judicial admission can also be waived by the adverse party, expressly or impliedly,
in which case it is as if there is no admission at all from a party.
Thus, the plaintiff is deemed to have waived the implied admission from the defendant’s Answer if the
plaintiff presents witnesses to prove the due execution and genuineness of the document and made no
objection to defendant’s evidence in refutation thereof; or if he or she did not object to defendant’s evidence
refuting the truth of the contents of the document.[232]
CC. Sources of Judicial Admission; Party
Ordinarily, a judicial admission emanates from a party. But a self-harming statement can also bind a party if
made in behalf of a party, such as one who has a substantial interest in the event, by one privy in law, in
blood, or in estate to any party, or an authorized representative of a party.[233]
In People v. Magayon,[234] there was an attempt from the defendant to clarify matters specified on his
counter-affidavit, and when the defendant testified on the witness stand to relay that he occupied the subject
premises, together with his live-in partner, such statement estopped the declarant from disclaiming control
and dominion over the place where the subject marijuana were found because an admission in open court is a
judicial admission. As to his counter-affidavit before the prosecutor’s office, which contained a statement that
the drugs were for his personal use, rather than for sale, the Supreme Court went on to elaborate that it
likewise amounted to an admission, and it was also equated with an extrajudicial confession that was
voluntarily made in the presence of his counsel and the fiscal.[235]
In Logrosa v. Spouses Azares, et al.,[236] a party’s expression, during trial of an action for partition, of an
intention to make the other party a co-owner of the property was considered an admission against interest.
According to Briboneria v. Court of Appeals and Mag-isa,[237] the request for admission in Sec. 1, Rule 26 must
be served directly upon the party rather than counsel. And if the request for admission is not served upon the
party, that party cannot be deemed to have admitted the facts and documents subject of the request.[238]
Like the previous ruling in Briboneria,[239] a party can hardly be expected to admit facts already conceded by
that party’s pleadings, which principle was reiterated in Spouses Villuga v. Kelly Hardware and Construction
Supply, Inc.[240]
DD. Theory of Adoptive Admission
A party can also be affected by an out-of-court statement from a person under the theory of adoptive
admission which was thoroughly tackled in Estrada v. Desierto, et al.[241]
EE. Counsel
If a party is represented by counsel, the judicial admission can be made by the party’s lawyer, as an agent of
the party-litigant, on the broad idea that a general authority to conduct a trial implies the authority to make
an admission.[242] Not even a change of attorneys, can abrogate an admission that was originally binding.[243]
Owing to the theory of agency, PSCFC Financial Corporation (New PSCFC Business Corporation) v. Court of
Appeals, et al.,[244] referred to the propriety of a lawyer’s response to a request for admission in Rule 26 based
on the presumed authority of the lawyer to appear for a party under Sec. 21 of Rule 138 of the Revised Rules
of Court.
FF. Pre-Trial Admission
1. Civil Case
In Agbayani v. Lupa Realty Holding Corporation,[245] the legal efficacy of a lawyer’s admission in
judicio for a party was acknowledged:
 The admission by Nonito’s counsel during the pre-trial conference before the RTC that there was no
sale between Tranquilino and Nonito qualifies as a judicial admission because the statement is a
deliberate, clear, unequivocal statement of a party’s attorney during judicial proceedings in open court
about a concrete or essential fact within that party’s peculiar knowledge.
As opposed to the presumed authority of a lawyer to appear for a client in all stages of litigation and
no written authority is required for appearance of counsel under Sec. 21 of Rule 138 of the Revised
Rules of Court,[246] the second paragraph of Sec. 4, Rule 18, as amended, requires a specific
documentation, such as a special power of authority, when a lawyer or representative appears for a
party during pre-trial conference in a civil case.[247]
2. Criminal Case
During pre-trial of a criminal case, an agreement from the defense must be in writing and signed by
the accused and counsel, otherwise it cannot be used in evidence against the accused.[248]
It is the Pre-trial Order itself which must be signed by the accused and counsel considering that the
Pre-trial Order contains the recital of the actions taken by the parties, agreements and admissions, the
facts stipulated, and the evidence marked.[249]
If there is failure of the defense to object to its admission due to the absence of the defendant’s
signature of conformity to the Pre-trial Order, People v. Likiran[250] nonetheless considered the efficacy
of the Pre-trial Order which was signed only by the prosecution and the defense counsel.
In a charge for violation of Batas Pambansa Blg. 22, or the Bouncing Checks Law, Justice Melencio-
Herrera explained in Fule v. Court of Appeals[251] that the defense counsel’s confirmation on the
Memorandum about the factual stipulations during pre-trial conference can hardly ratify the absence
of the signature from the defense counsel and the defendant at the trial court level.
On the part of the prosecution, the absence of the private offended party during arraignment despite
due notice can authorize the defendant’s plea of guilt to a lesser offense, which is necessarily included
in the offense charged, with the conformity of the trial prosecutor alone.[252]
Under Subheading III, Item 8(d) of the Revised Guidelines for Continuous Trial of Criminal Cases,
effective September 1, 2017, if the accused desires to enter a plea of guilty to a lesser offense, plea
bargaining shall immediately proceed, provided the private offended party in private crimes, or the
arresting officer in victimless crimes, is present to give his/her consent with the conformity of the
public prosecutor to the plea bargaining. Thereafter, judgment shall be immediately rendered in the
same proceedings.
Based on specific requirements for the efficacy of a valid agreement from the defense during pre-trial
conference in Sec. 2, Rule 118, the absence of the accused and/or the complainant despite notice for
pre-trial conference can only authorize the counsel for the accused and the public prosecutor to
proceed with pre-trial conference under Subheading III, Item 8(f), i and ii of the Revised Guidelines for
Continuous Trial in Criminal Cases, but the efficacy of a stipulation reached only between the defense
counsel and the public prosecutor, given the assumed absence of the accused and/or private
complainant, will be valid only insofar as the prosecution is concerned.
In People v. Borras,[253] the twin pleas of guilt from the accused for illegal possession of drug
paraphernalia under Sec. 12 of Rep. Act No. 9165, and the Judgment of the Second Level Court were
invalidated vis-à-vis the original charge for violation of Sec. 5 (sale) and Sec. 11 (possession) of shabu,
since the plea bargain was against the prosecutor’s conformity. Based on previous doctrines,
[254]
Borras conveyed the idea that the prosecutor’s conformity is not to be disregarded and “the
consent of the offended party, i.e., the State, will have to be secured from the prosecutor who acts on
its behalf.”
A similar disposition was reached in People v. Reafor,[255] where the Supreme Court had the occasion
to reiterate the requisites for a valid plea bargaining: (a) consent of the offended party; (b) consent of
the prosecutor; (c) plea of guilty to a lesser offense which is necessarily included in the offense
charged; and (d) approval of the court.
During presentation of the prosecution’s evidence in Reafor, the defense counsel filed a Motion to
Plea Bargain, citing A.M. No. 18-03-16-SC dated July 26, 2018, contending that the defendant can plead
guilty to a lesser offense for Sec. 12 of Rep. Act No. 9165. Since the prosecution objected,[256] based on
the constraint under DOJ Circular No. 27, that the acceptable plea bargain is only up to Sec. 11
(possession of dangerous drug), the trial court resolved to grant the defendant’s Motion on the trial
court’s impression that only the Supreme Court has the power to promulgate rules of procedure.
Thereafter, the defendant was re-arraigned and the plea of guilt to the lesser offense led to the
judgment against the accused for violation of Sec. 12 (possession of drug paraphernalia), in lieu of the
original charge of Sec. 5 (sale of shabu) of Rep. Act No. 9165. On account of the discussion on the
elements of a legitimate plea bargain, Reafor culminated in the remand of the criminal case to the trial
court for further proceedings since a void plea bargaining is also a void judgment which has no legality
from its inception.
GG. Admission During Trial
1. Civil Case
Under Sec. 7, Rule 30, as amended, the parties’ agreement over facts in litigation must be in writing
and judgment can be rendered thereafter, without introduction of evidence, unless the parties agree
only on some[257] facts.
Under Sec. 12, Rule 32, as amended, when the parties stipulate that a commissioner’s findings of fact
shall be final, only questions of law shall thereafter be considered. Consequently, an agreement by the
parties to abide by the findings of fact of the commissioner is equivalent to an agreement of facts
binding upon them which the court cannot disregard.[258]
2. Criminal Case
An agreement or stipulation during trial of a criminal case is not subject to a specific form and it can
be treated as a judicial admission under Sec. 4, Rule 129, as amended, like what transpired in People v.
Hernandez,[259] during which occasion the Supreme Court reiterated the theory of agency concerning
the efficacy of the defense counsel’s factual stipulation during trial even without the client’s
conformity.
An admission against interest under Sec. 26, Rule 130 was considered in Republic v. Saromo[260] when
an applicant for a free patent submitted a survey plan with the Bureau of Lands which contained a
notation that the subject land is “inside unclassified public forest land.” As such, in the absence of an
official declassification from the State of the subject land, it is inalienable and non-disposable and
could not have been the valid subject of a free patent application because only agricultural public lands
subject to disposition can be the subject of free patents.
HH. Prohibited Admission or Stipulation
In civil law, a compromise is a contract whereby the parties, by making reciprocal concessions, avoid a
litigation or put an end to one already commenced.[261]
Under Art. 2034 of the New Civil Code, there may be a compromise upon the civil liability arising from an
offense, but such compromise shall not extinguish the public action for the imposition of the legal penalty. In
Art. 2035 of the New Civil Code, no compromise is legally permitted on the civil status of persons, validity of a
marriage or a legal separation, any ground for legal separation, future support, the jurisdiction of courts, and
future legitime.[262]
Neither can there be a factual stipulation on material facts alleged in the complaint for nullity or annulment
of marriage or for legal separation.[263]
Nonetheless, under Sec. 12 of the Rule on Custody of Minors and Writs of Habeas Corpus in Relation to
Custody of Minors, which acknowledged the propriety of the parties’ agreement during the scheduled pre-
trial or mediation on the custody of the minor, and Sec. 14 of the Rule, [264] apart from the best interest of the
minor as the paramount consideration in determining custody, the court shall also consider, among other
factors “[a]ny extrajudicial agreement which the parties may have bound themselves to comply with
respecting the rights of the minor to maintain direct contact with the non-custodial parent on a regular basis,
except when there is an existing threat or danger of physical, mental, sexual or emotional violence which
engenders the safety and best interests of the minor.”
In Masbate and Spouses Masbate v. Relucio,[265] Justice Perlas-Bernabe clarified that before the judgment
under Sec. 18 on the Rule on Custody of Minors, the father, as non-custodial parent of an illegitimate child,
can only exercise visitation rights. To sanction an award of temporary custody to the father ahead of trial of
the child custody case is unwarranted under Sec. 15 of the Rule on Custody of Minors since such provision is
limited to temporary visitation rights, not temporary custody.
II. Presumption
The third matter which can supplement the discussion on what need not be proved is a presumption.
A presumption is an inference as to the existence of a fact not actually known, arising from its usual
connection with another which is known.[266] It is an inference of the existence or non-existence of some fact
which courts are required or permitted to draw from the proof of other facts. [267] Chamberlayne explains
“presumption” as a term which is used to signify that which may be assumed without proof, or taken for
granted. It is the self-evident result of human reason and experience.[268]
JJ. Classifications
There are two classes of presumptions: (a) presumption “juris” or of law, and (b) presumption “hominis” or
of fact. Presumption “juris” is a deduction which the law expressly directs to be made from particular facts.
Presumption “hominis” is a deduction which reason draws from the facts proved without an express direction
of law to that effect.[269]
A presumption of law is either (a) conclusive or a presumption juris et de jure,[270] or (b) disputable
presumption or a presumption juris tantum.[271] Conclusive or absolute presumptions of law are those which
are not permitted to be overcome by any proof to the contrary such as those listed in Sec. 2, Rule 131.
Disputable presumptions are those which admit of contradiction as specified in Sec. 3, Rule 131.[272]
III.
(RULE 130 – RULES OF ADMISSIBILITY)
A. Sources of Evidence
Best referred to Instruments of Evidence as “the media through which the evidence of facts, either disputed
or required to be proved, is conveyed to the mind of a judicial tribunal.”
The Instruments of Evidence are of three kinds:

(1) Witnesses – persons who inform the tribunal respecting facts;

(2) Real evidence – evidence from things; and
(3) Documents – evidence supplied by material substances, on which the existence of things is
recorded by conventional marks or symbols.[273]
B. Need for Evidentiary Foundations
Rules of evidence require evidentiary foundations or predicates – that is, evidentiary steps that precede the
introduction of testimonial, real or demonstrative proof,[274] inclusive of documentary evidence.
For instance, personal knowledge as a requirement in Sec. 22, Rule 130 of a witness is usually disclosed by
preliminary testimony about one’s knowledge, recollection and communication of the disputed fact. A
tangible object, like a gun, can hardly speak for itself, and it requires a testimonial sponsor who can testify
either as an eyewitness to the crime, an ordinary witness to corroborate, or as an expert on the firearm. When
the contents of the document are the subject of inquiry, the original itself is preferred for presentation, and in
its absence, the requisite quantum of secondary evidence can be introduced.
C. Authentication: A Common Denominator of Real, Documentary, Testimonial Evidence
Authentication, or the process of establishing genuineness of evidence as that which the proponent claims
it to be, is a common denominator shared by real, documentary and testimonial evidence.
Ordinarily, there is no specific method of validation of evidence unless it is required by the law or regulation
such as the chain of custody rule in Sec. 21, Rep. Act No. 9165 involving drugs. For example, standards on
chain of custody establish a sequential mechanism of authentication to ensure that the evidence presented in
court is what it is claimed to be.[275]
Conceptually, the function of authentication or identification is to establish the relevance, by way of
preliminary evidence, a connection between the evidence offered and the relevant facts of the case. The
connection is necessary in order to establish the relevance of the particular object or item, since an object or
item is of no relevance if it is not attributed to, or connected with, a particular person, place or issue in a case.
For example, a writing purportedly signed by a party to an action is of no relevance and hence of no
significance to the case unless evidence is offered that it was actually authored or signed by that person.[276]
By way of illustration, the gun as real evidence can be authenticated by its corporal link to the eyewitness
who testifies that it was the identical firearm seen or retrieved from the crime scene by the eyewitness. For a
Facebook post, or an email, evidence can be presented about the log-in and password as a mode of
authentication. An assertion from the recipient of a telephone call about one’s recognition of, and familiarity
with, the caller’s voice, will ordinarily suffice for authentication.
For documentary evidence, authentication is normally expected of the proponent by proof of genuineness
and due execution in Sec. 20, Rule 132, as amended. In other instances, authentication may be dispensed with,
according to Arreza v. Toyo, et al.,[277] if: it is a public document, an ancient document, genuineness and
authenticity of an actionable document have been admitted, or when the document is not offered as
authentic.
D. Real or Object Evidence
That acquired by inspection is called real evidence. It is evidence acquired by the court thru the medium of
its own senses of seeing, hearing, smelling, tasting, etc. This class of evidence is entitled to the
greatest weight.[278]
E. Types of Real Evidence
Real evidence is either immediate or reported.[279]
Immediate real evidence is where the thing which is the source of the evidence is present to the senses of
the tribunal. This is of all proof the most satisfactory and convincing.
Reported real evidence is where the thing which is the source of the evidence is not present to the senses of
the tribunal, but the existence of it is conveyed to them through the medium of witnesses or documents. This
sort of proof is, from its very nature, less satisfactory and convincing than immediate real evidence.
F. Documentary Evidence
A document is akin to a writing and a document has been defined as “any substance having any matter
expressed or described upon it by marks capable of being read” [280] or “things of paper or parchment
employed solely as a material for bearing words written or printed in the form of complete clauses or
sentences expressing connected thought.”[281]
G. Testimonial Evidence
Testimony is evidence given by a competent witness under oath or affirmation; as distinguished from
evidence derived from writings, and other sources.[282] It is that part of judicial evidence which comes to the
tribunal through the medium of witnesses – i.e., by means of their verbal statements.[283]
H. Types
As to knowledge, an oral declaration of a witness is either original or derived (inoriginal).
Testimony is original, when the witness, who deposes before the judge on the fact in question, is the
identical person who was present at the time and place in question, and received by his or her senses the
perceptions which he or she now recounts. Testimony may be called derived (inoriginal), when the witness
does not speak from his or her own knowledge, but recites what he or she has been told by another, who is
supposed to have been present at the time and place in question, and to have related the facts according to his
or her immediate perceptions.[284] It is a repeated statement which is offered for proving the truth of the
declaration.[285]
Under the current rules on evidence, the original testimony is personal knowledge of a witness in Sec. 22,
Rule 130 while in original or derived testimony of a witness is hearsay evidence in Sec. 37, Rule 130.
I. Object (Real) Evidence
Real evidence is self-perception or self-observation, or, describing it from the standpoint of the party
attempting proof, Autoptic Proference, i.e., the presentation of the object itself for the personal observation of
the tribunal.[286]
1. Sensory Perception of Object Evidence
Knowledge by the court of physical evidence can be acquired by (1) testimonial evidence, or (2)
presentation of the object evidence.
Testimonial evidence alone concerning real evidence is justified if: a) the display of the object is
contrary to public policy, morals, or decency, unless it constitutes the very basis for the criminal or
civil action like an obscene picture or exhibit in Art. 201 of the Revised Penal Code, subject to the
exclusion of the public from the view thereof per Sec. 21, Rule 119 of the 2000 Revised Rules on
Criminal Procedure,[287] b) it is costly or inconvenient, c) to avoid confusion due to substantial change
in the condition of the real evidence, or d) redundancy of the physical evidence due to other
testimonial and documentary evidence that had clearly portrayed the object as to render the view
thereof superfluous.[288]
Sec. 1, Rule 130 referred to object evidence as 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.
As previously understood, typical examples of real evidence include photographs, maps, models,
mechanical contrivances, inventions, ghastly wounds, bloody clothes, dangerous weapons, exhibition
of the person in personal injury cases, experiments, and the like.[289]
Autoptic proference, in legal parlance, simply means a tribunal’s self-perception, or autopsy, of the
thing itself.[290] Demonstrative evidence is typically used to illustrate, or explain. Often, this kind of
evidence is used to add clarity or vividness to a witness’ testimony.[291]
2. Integrity in Identity
Autoptic proference is allowable only on the assumption that its former condition is the same or
sufficiently similar. This is so because the present condition of an object may not be the same at the
time in issue, nor so nearly the same as to be proper evidence of its former condition.[292]
3. Special Rules of Authentication
a. Drugs
Authentication, or evidence of the item’s integrity, assumes great resonance in drug cases
through the chain of custody rule in Sec. 21, Rep. Act No. 9165 concerning the sale of prohibited
drug.
In People v. Soriano,[293] it was emphasized that it was imperative for the prosecution to
demonstrate “that the confiscated drug and the drug submitted in court are one and the same
by providing a clear narration of the following: 1) the date and time when, as well as the
manner, in which the illegal drug was transferred; 2) the handling, care and protection of the
person who had interim custody of the seized illegal drug; 3) the condition of the drug
specimen upon each transfer of custody; and 4) the final disposition of the seized illegal drug.”
And to establish the vital links in the chain, the People must show: “x x x (1) the seizure and
marking, if practicable, of the illegal drug recovered from the accused by the apprehending
officer; (2) the turnover of the illegal drug seized by the apprehending officer to the
investigating officer; (3) the turnover by the investigating officer of the illegal drug to the
forensic chemist for laboratory examination; and (4) the turnover and submission of the
marked illegal drug seized from the forensic chemist to the court must be adequately proved in
such a way that no question can be raised as to the authenticity of the dangerous drug
presented in court.”[294]
In People v. Serojales and Goyenoche,[295] the Supreme Court discussed the importance of
marking as part of the first link in the chain of custody: “Crucial in proving chain of custody is
the marking of the seized drugs or other related items immediately after they are seized from
the accused. Marking after seizure is the starting point in the custodial link, thus, it is vital that
the seized contraband are immediately marked because succeeding handlers of the specimens
will use the markings as reference. The marking of the evidence serves to separate the marked
evidence from the corpus of all other similar or related evidence from the time they are seized
from the accused until they are disposed of at the end of criminal proceedings, obviating
switching, ‘planting,’ or contamination of evidence. The chain of custody rule requires that the
marking of the seized contraband be done (1) in the presence of the apprehended violator, and
(2) immediately upon confiscation.”
Nonetheless, People v. Dahil and Castro[296] recognized that marking
is not found in Rep. Act No. 9165 and is different from the inventory-taking and photography
under Sec. 21 of the said law. Long before Congress passed Rep. Act No. 9165, however, the
Supreme Court had consistently held that failure of the authorities to immediately mark the
seized drugs would cast reasonable doubt on the authenticity of the corpus delicti.
Although Rep. Act No. 9165 contains a saving clause allowing liberality if there are compelling
reasons for deviation from established protocol so long as the integrity and evidentiary value of
the seized items are properly preserved, leniency was not applied in Barayuga v.
People[297] since the prosecution did not bother to explain the absence of insulating witnesses
during the marking, inventory and photograph of the seized dangerous drug.
Tumabini v. People[298] reiterated that as a method of authentication, the chain of custody rule
in Sec. 21, Rep. Act No. 9165 ensures that unnecessary doubts involving the identity of seized
drugs are removed, and Rep. Act No. 9165 applies even to the implementation of a search
warrant even though Rule 126 is a separate and general provision, considering that Rule 126 is
remedial in character while Sec. 21, Rep. Act No. 9165 is a special provision that specifically
governs the seizure and confiscation of dangerous drugs. Tumabini continued to add that in
case of conflict between a general law and a special law, the latter must prevail regardless of
the dates of their enactment, to address the argument of the defense on what appeared to be a
restrictive number of witnesses during implementation of the search warrant under Sec. 8, Rule
126.
Apart from the foregoing remarks, Tumabini explained that: “x x x [T]he only recognizable
difference between seizure and confiscation of drugs pursuant to a search warrant and a buy-
bust operation is the venue of the physical inventory and taking of photographs of the said
drugs. x x x When the drugs are seized pursuant to a search warrant, then the physical
inventory and taking of photographs shall be conducted at the place where the said search
warrant was served. In contrast, when the drugs are seized pursuant to a buy-bust operation or
a warrantless seizure, then these can be conducted at the nearest police station or at the
nearest office of the apprehending team. Other than that, there is no other difference between
seizure and confiscation of drugs with a search warrant and without it (such as a buy-bust
operation).”[299]
(1) Ocular Inspection: Before and After Charge
On February 16, 2021, the Supreme Court issued the Rule on destruction and disposal
of seized drugs prior to the filing of an Information to address the situation for the
procedure involving confiscated drugs before the charge is filed.[300] In particular, Sec. 7
of the Rule spoke of how the recording of ocular inspection, taking of representative
sample and actual destruction can take place: “The ocular inspection, if it takes place, the
taking of representative sample, and the actual destruction of seized drugs and items
shall be photographed and video-recorded by the party who filed the application. The
photographs and video-recordings shall be preserved for purposes of authentication
when the corresponding information is eventually filed.”
 Sec. 21(4) of Rep. Act No. 9165 refers to ocular inspection in 72 hours by the
court after the filing of the corresponding criminal case in court prior to destruction of
the bulk of the drug in 24 hours thereafter, subject to retention of the representative
sample.
b. Grenade
In People v. Olarte,[301] the Supreme Court emphasized that if the proffered evidence is unique,
readily identifiable, and relatively resistant to change, that foundation need only consist of
testimony by a witness with knowledge that the evidence is what the proponent
claims. Olarte also conveyed the message that the chain of custody rule does not apply to an
undetonated grenade (an object made unique), for it is not amorphous and its form is relatively
resistant to change. A witness of the prosecution need only identify the hand grenade, a
structured object, based on personal knowledge that the same contraband or article is what it
purports to be – that it came from the person of accused-appellant.
Based on diverse responses from the prosecution witnesses which created serious doubt on
the grenade as corpus delicti, pertaining to the manner it was handled, inclusive of the absence
of a receipt for the seized item as mandated by Presidential Decree No. 1866, disparate
reactions on the aspect of marking of the grenade, a different conclusion was reached in People
v. Velasco[302] which led to the acquittal of the accused.
c. Electronic Document
RCBC Bankard Services Corporation v. Oracion, Jr. and Oracion[303] discussed the admissibility
and authentication aspect of an electronic document even though the civil case for recovery of
the total amount of P117,157.98 for the use of the credit card apparently involved application
of the Rule on Summary Procedure or Small Claims Procedure. There must be either evidence
of the digital signature of the author, application of security procedures for authentication, or
other evidence of integrity and reliability in Sec. 2, Rule 5 of the Rules on Electronic Evidence.
For proof, an affidavit indicating direct personal knowledge and competence of the affiant are
expected by Sec. 1, Rule 9 of the Rules on Electronic Evidence, and the prudent course for the
proponent to follow is to include allegations on the Complaint and attach a copy of the affidavit
to the Complaint as foundation for admission of the evidence per the Best Evidence Rule.
d. CCTV [Closed-Circuit Television]
Authentication of a video surveillance camera, which transmits signal to a monitor, and its
output or recording, is not limited solely to the person who made the recording but also by
another competent witness who can testify to its accuracy pursuant to the Rules on Electronic
Evidence.[304] In this regard, People v. Manansala[305] relayed that the prosecution witness
managed to establish the origin of the recording and explain how it was transferred to the
compact disc and subsequently presented to the trial court.
e. DNA Evidence
A person’s profile, or genetic information, can be obtained by DNA testing.
On October 2, 2007, the Supreme Court issued A.M. No. 06-11-5-SC on the admissibility of
DNA evidence[306] for civil, criminal cases and special proceedings.
In Sec. 3(c) of the Rule, DNA evidence was defined as “the totality of the DNA profiles, results
and other genetic information directly generated from DNA testing of biological samples.” In
Sec. 9(c) of the Rule, “DNA results that exclude the putative parent from paternity shall be
conclusive proof of non-paternity. If the value of the Probability of Paternity is less than 99.9%,
the results of the DNA testing shall be considered as corroborative evidence. If the value of the
Probability of Paternity is 99.9% or higher there shall be a disputable presumption of
paternity.”
However, under the last sentence of Sec. 5 of the Rule, the grant of a DNA testing application
shall not be construed as an automatic admission into evidence of any component of the DNA
evidence that may be obtained as a result thereof because like any other evidence, it must be
formally offered before the court can consider it for or against a party.[307]
J. Documentary Evidence
1. Document
A document has been defined as any matter expressed or described upon any substance by means of
letters, figures or marks, or by more than one of the means, intended to be used, or which may be used,
for the purpose of recording that matter.[308]
According to Hughes, writings possess a dual character. They may be considered as mere physical
objects, or as expressions of ideas.[309]
 The writing must be a legally effective and binding document. If the document proves nothing and
affirms nothing, like a printed form, it cannot legally be said to be a writing.[310]
2. Classification
Writings are divisible into two classes: public and private. Public documents may be divided into
those which are judicial and those which are not judicial, and both judicial and nonjudicial public
documents may be again divided into domestic and foreign documents. Private writings are either
attested or unattested.[311]
3. Definition of Documentary Evidence
Sec. 2, Rule 130 of the 2019 Revised Rules on Evidence expanded the concept of documentary
evidence in this manner:
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.
According to the Rules Committee, modification of the concept of documentary evidence was
intended to cover every memorial of written and spoken language including recorded sounds. A
photograph, which was ordinarily considered real evidence, was included in the definition of
documentary evidence, inclusive of still pictures, stored images, x-ray films, videotapes and motion
papers, if intended to prove its contents. As enumerated under the concept of a photograph, it was not
conceived as exclusive and it may cover similar technology in the future.[312]
Since the expanded concept of documentary evidence in Sec. 2, Rule 130 was based on Rule 1001 of
the Federal Rules of Evidence, the different concepts in Sec. 2, Rule 130, as amended, can be construed
as follows:
(a) A “writing” consists of letters, words, numbers or their equivalent set down in any form;
(b) A “recording” consists of letters, words, numbers, or their equivalent recorded in any
manner;
(c) A “photograph” means a photographic image or its equivalent stored in any form.
4. Photograph
The authentication or verification of a photograph as a prerequisite to its being received in evidence,
may be the photographer himself or herself or by any witness whose familiarity with the subject
matter of the photograph qualifies him or her to testify that it is a correct representation of the object
or scene which it portrays. While the testimony of the photographer is not necessary to preliminary
authentication, if he or she is used as a witness it is not enough that he or she should testify merely
that he or she took the pictures. The most important thing is the identity of the subject matter shown
in the picture and a showing that the subject matter is faithfully reproduced.[313]
To avoid impermissible suggestion of identification of an individual, it is but fair to consider the
totality of circumstances test which can demonstrate the degree of certainty by the witness at the time
of identification. What is most crucial here is the initial identification made by a witness during
investigation and case build-up not identification during trial. Among other additional factors, a candid
recollection of the incident by the witness, devoid of suggestiveness of identification, is also required
for the totality of circumstances test.[314]
5. Original Document Rule: Primary and Secondary Evidence
As a general rule, what used to be the Best Evidence Rule is now the Original Document Rule, as the
most apt label for the doctrine[315] in Sec. 3, Rule 130, as amended. McCormick also subscribed with the
view that the original document rule is the better name instead of best evidence rule. Commentaries
also relayed that even the phrase original document rule may be misleading since duplicates are also
admissible in lieu of the original.[316]
It prefers presentation and formal offer of the original document itself if its contents are the subject
of inquiry. It is the rule governing production of the original as the highest grade of evidence to prove
the contents of a writing. The rule is necessary to guarantee the accuracy of evidence introduced to
prove the contents of writings, recordings and some photographs.[317]
Secondary or substitutionary evidence can be presented, instead of the original, under any of the
exceptions in Sec. 3, Rule 130, as amended, viz.: loss or unavailability of the original, if the original is in
the custody of the adverse party, summaries for voluminous accounts, an original public record, or if
the original is not closely related to a controlling issue:
Original document must be produced; exceptions. – When the subject 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.
6. Substantial Changes: Summaries, Collateral Facts
Voluminous accounts, referred to in Sec. 3(c), Rule 130, as amended, was supplemented by a new
rule in Sec. 7, labeled “Summaries”. For instance, a calculation can be presented to establish the
attendant costs in a construction project, without accounting for each document that led to the
outstanding balance, subject to availability of the source originals for examination or copying by the
adverse party. When a summary is utilized, it assumes the existence of the source original, hence, it is
but logical to expect that the source original is available for inspection.[318]
Another modification of the exception to the Original Document Rule is the concept of collateral facts,
or when the original is not closely-related to a controlling issue, like presentation of the xerox copy of
the marked money in a drug buy-bust operation, in lieu of the original, since the issue involves the sale
of the drug, rather than the contents of the money itself and the consideration was presented only to
prove its existence.[319]
7. No Issue Over Contents of Original
Absence of an issue over an original, where the contents of the original was not bona fide disputed,
will relieve the proponent from presenting the original document.[320]
8. External Facts Excluded
If the issue before the court involves external facts other than proof of the contents of the document,
such as to prove the existence or condition of a document, or the nature of the handwriting, or to
determine the age of the paper use, or blemishes or alterations on the document, the Original
Document Rule is not applicable since the document is not documentary evidence. Hence, in this sense,
secondary evidence can be admitted in lieu of the original.[321]
Neither is the original document rule applicable to uninscribed physical objects or a fact that is
subsequently memorialized in a writing. Hence, the Original Document Rule does not require that a
confiscated substance be introduced into evidence to prove the nature, identity, or status of
the substance.[322]
When the fact to be proven is independent of the contents of a writing, even though some writing
may contain evidence of the fact, it is clear that the best evidence rule is inapplicable. Accordingly, the
best evidence rule does not require exclusion, for example of workers’ testimony as to their salary
even though payroll records containing the same information are available. [323] Likewise, in the classic
illustration, the best evidence rule does not require use of a receipt that memorializes a transaction
where the fact of the transaction is the object of proof. In this illustration the transaction exists and is
binding in the absence of the receipt. The receipt is merely one means of proof available to establish
the transaction, and oral testimony to prove the transaction is equally admissible. In sum, the best
evidence rule is not triggered simply because some act or transaction is subsequently recorded in
a writing.[324]
9. Alteration on Original
Before a party hurdles the Original Document Rule in Sec. 3, Rule 130, as amended, it is equally
important to overcome the special rule if the original document contains an alteration in Sec. 31, Rule
132, as amended, by accounting for the alteration during introduction of the document.[325]
Explanation of the alteration on a different version of the municipal ordinance was achieved
in Tadena v. People[326] when the prosecution adduced testimonial and documentary evidence which
indicated that it was the Municipal Mayor who intercalated wordings on the Second Version of the
municipal ordinance. After the Municipal Mayor admitted what he did on the paper, he nonetheless
failed to offer evidence that his act was with the imprimatur of the Sangguniang Bayan.
10. Definition of Original
Amendments to Sec. 4, Rule 130, as amended, were brought about by (a) the Rules on Electronic
Evidence, which recognized electronic documents as functional equivalent of paper-based documents,
and (b) Rule 1001(d) and (e) of the Federal Rules of Evidence:
Original of a document. –
(a) An “original” of a document is the document itself or any counterpart
intended to have the same 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.
As summary, an original of the:
(a) Document is the (1) document itself, or (2) counterpart or duplicate with the same
impression, or identical matrix, or by means of photography, mechanical or electronic
re-recording, chemical reproduction, or other equivalent techniques;
(b) Photograph includes the negative or any print therefrom;
(c) Data from a computer or device includes a printout or other output;
The term “duplicate” encompasses photocopies, electronic re-recordings, chemical
reproductions, and other reliable means of making accurate copies.[327]
11. Cases
In Maliksi v. Commission on Elections and Saquilayan,[328] the Supreme Court subsequently observed
on petitioner’s Motion for Reconsideration that while the “official ballot and its picture image – are
considered ‘original documents’” for the COMELEC and the Electoral Tribunals to unilaterally utilize
printouts of picture images of official ballots without notice to the parties does not blend with due
process. Moreover, “[d]espite the equal probative weight accorded to the official ballots and the
printouts of their picture images, the rules for the revision of ballots adopted for their respective
proceedings still consider the official ballots to be the primary or best evidence of the voters’ will. In
that regard, the picture images of the ballots are to be used only when it is first shown that the official
ballots are lost or their integrity has been compromised.”[329]
Goopio v. Maglalang[330] was clear that a disbarment proceeding still requires compliance by the
complainant with the Best Evidence Rule: “[a]lthough a disbarment proceeding may not be akin to a
criminal prosecution, if the entire body of proof consists mainly of the documentary evidence, and the
content of which will prove either the falsity or veracity of the charge for disbarment, then the
documents themselves, as submitted into evidence, must comply with the Best Evidence Rule, save for
an established ground that would merit exception.”
People v. Jagdon, Jr.[331] reiterated consistent doctrine from the Supreme Court that: “[i]n statutory
rape cases, the best evidence to prove the age of the offended party is the latter’s birth certificate. But
in certain cases, the Court admits of exceptions. In People v. Pruna, this Court have set guidelines in
appreciating age, either as an element of the crime or as a qualifying circumstance, among which: 4. In
the absence of a certificate of live birth, authentic document, or the testimony of the victim’s mother or
relatives concerning the victim’s age, the complainant’s testimony will suffice provided that it is
expressly and clearly admitted by the accused.”
In Yokohama Tire Philippines, Inc. v. Reyes and Reyes,[332] the Supreme Court expressed its approval
over the First Level Court’s acquittal of the defendants for the alleged attempted theft of ink cartridges
from petitioner-company for failure of the prosecution to present the alleged video recording, as the
best evidence itself, of the defendants’ act of putting ink cartridges inside a bag.
In a petition for judicial recognition of a foreign divorce, Moraña v. Republic[333] made it clear that a
divorce report issued by the Office of the Mayor of Fukuyama City, Japan, pursuant to a divorce
agreement between the Japanese husband and Filipina wife, is clearly the equivalent of the “Divorce
Decree” in Japan, hence, the best evidence of the fact of divorce obtained by petitioner and her former
husband. It was pointless to insist for production of the divorce judgment because the divorce
proceeding was not coursed through Japanese courts but through the Office of the Mayor of Fukuyama
City, Japan. In any event, since the Divorce Report was issued by the Office of the Mayor of Fukuyama
City, the same is deemed an act of an official body in Japan.
As annexes to a pleading, print-outs or outputs readable by sight which show an accurate reflection
of data are not automatically branded as electronic documents or as functional equivalents of paper-
based documents. But it is of judicial notice that computers do produce the same types of print.
[334]
Although a “x x x writing, document, record, instrument, memorandum or any other form of
writing shall be deemed to include an electronic document” under Sec. 1, Rule 3 of the Rules on
Electronic Document,[335] RCBC Bankard Services Corporation v. Oracion, Jr. and Oracion,[336] the
Supreme Court underscored that an electronic document must hurdle the test of admissibility under
the Rules of Court and related laws and must be authenticated in the manner prescribed by Rules
5[337] and 9[338] of the Rules on Electronic Evidence.
Ephemeral electronic communications are now admissible evidence, subject to certain conditions.
“Ephemeral electronic communication” refers to telephone conversations, text messages, chatroom
sessions, streaming audio, streaming video, and other electronic forms of communication the evidence
of which is not recorded or retained. It may be proven by the testimony of a person who was a party to
the communications or has personal knowledge thereof.[339]
Consistent with De Vera, et al. v. Spouses Aguilar,[340] Country Bankers Insurance Corporation v.
Lagman reiterated that when more than one original copy exists, it must appear that all of them have
been lost, destroyed, or cannot be produced in court before secondary evidence can be given of any
one. A photocopy may not be used without accounting for the other originals.[341]
Unlike the need to present the original of the falsified document as announced in U.S. v. Gregorio and
Balistoy[342] and Borje v. Sandiganbayan and People,[343] Pacasum v. People[344] declared that a criminal
case for falsification of an Employees Clearance can still prosper based on secondary evidence upon
showing of any of the exceptions in Sec. 3, Rule 130.
12. Parol Evidence Rule
Other than renumbering from Sec. 9 to now Sec. 10, Rule 130, as amended, and inclusion of
verification of a pleading which raises any of the exceptions to the Parol Evidence Rule, the substance
of the Parol Evidence Rule and the exceptions were retained:
Evidence of written agreements. – When the terms of an agreement have been reduced to
writing, it is considered as containing all the terms agreed upon and there can be,
between the parties and their successors in interest, no evidence of such terms other
than the contents of the written agreement.
However, a party may present evidence to modify, explain or add to the terms of the
written agreement if he or 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.
The term ‘agreement’ includes wills.
a. Concept
The Parol Evidence Rule provides that “when the terms of an agreement have been reduced
into writing, it is considered containing all the terms agreed upon and there can be, between
the parties and their successors in interest, no evidence of such terms other than the contents
of the written agreement.”[345]
The rule was designed to be the repository and evidence of the parties’ final intentions. Hence,
parol contemporaneous evidence is inadmissible to contradict or vary the terms of a valid
written instrument.[346]
For instance, a letter, which demanded payment of interest, prior to the execution of a Deed of
Absolute Sale between the parties, where the deed of conveyance did not contain any payment
of interest for the consideration, is barred by the Parol Evidence Rule where the claim of
interest was not put in issue on the pleading.[347]
The application of the Parol Evidence Rule is limited to writings which are contractual in
nature. Written instruments within the Parol Evidence Rule include not only records, deeds,
 and other instruments required by law to be in writing but every document which contains the
terms of the contract between different parties.[348]
The Parol Evidence Rule precisely forbids any addition to or contradiction of the terms of a
written agreement by testimony or other extrinsic evidence purporting to show that, at or
before the execution of the parties’ written agreement, other or different terms were agreed
upon by the parties, varying the purport of the written contract. When an agreement has been
reduced to writing, the parties cannot be permitted to adduce evidence to prove alleged
practices which, to all purposes, would alter the terms of the written agreement. Whatever is
not found in the writing is understood to have been waived and abandoned, per Ibañez v.
People.[349] In Ibañez, these principles were utilized by the Supreme Court to refute the
complainant’s persistence that what transpired between him and the accused was actually one
of agency, which culminated in the defendant’s alleged misappropriation for the charge
of estafa, rather than a contract of sale as evidenced by a Memorandum of Agreement.
b. Exceptions
Under the Parol Evidence Rule, the affected party’s pleadings must allege the basis for the
exception, and only then may such party adduce evidence thereon.[350]
Unless any of the exceptions to the Parol Evidence Rule is properly pleaded, the terms of a
written contract are deemed conclusive between the parties and evidence aliunde is
inadmissible to change the terms embodied in the document.[351]
To overcome the presumption that the written agreement contains all the terms of the
agreement, the parol evidence must be clear and convincing and of such sufficient credibility as
to overturn the written agreement.[352]
Apart from the enumerated exceptions in Sec. 10, Rule 130, as amended, the Parol Evidence
Rule is inapplicable in these instances:
(a) If the contract itself is clear.[353]
(b) If a third person is involved who can introduce extrinsic evidence about the
agreement since the Rule is applicable only as between the parties and their successors-
in-interest;[354]
(c) A wholly executed or partially executed contract sought to be enforced by a party
since the Statute of Frauds is applicable only to an executory contract and exclusion of
parol evidence would promote fraud or bad faith as it would allow parties to keep
benefits derived from the transaction and at the same time evade obligations imposed
therefrom;[355]
(d) Failure to object to parol evidence;[356]
(e) If the intention is to prove the existence or condition or the fact of execution of the
document rather than its contents;[357]
(f) If the extrinsic evidence is consistent with the terms of the written agreement, or
independent of the written agreement, novatory of the written contract, or a condition
precedent which determines whether the written contract may become operative or
effective, but not to a condition subsequent not stated in the agreement.[358]
K. Testimonial Evidence
Testimonial evidence is the testimony given in court or the deposition by one who has observed that to
which he or she is testifying; or one who, though he or she has not observed the facts is nevertheless qualified
to give an opinion relative to such facts.[359]
A witness, in the legal sense, is a person who gives evidence in a cause before a court. And a competent
witness is a person who is legally qualified to do so. [360] As the rules show, anyone who is sensible and aware
of a relevant event or incident, and can communicate such awareness, experience, or observation to others
can be a witness.[361]
Personal evidence is that furnished by a human being, and is generally called testimony. Real evidence is
that deduced from the state of things.[362]
Competency deals entirely with legal capacity, for the testimony may be unworthy of the belief and standing
and is insufficient and yet receivable, if the witness has legal capacity to testify.[363]
The time of utterance of the testimony is the time when the qualifications must exist, because it is at that
time that they are needed.[364]
1. Situs of Testimony
In-court testimony under oath or affirmation before the judge is the normal norm for testimonial
evidence.[365] Deviations from this rule include:
 (a) An extrajudicial statement by deposition before any judge, notary public, or if so stipulated
by the parties, before any person authorized to administer an oath,[366]
(b) Deposition of a witness abroad in a civil case pending before the local court;[367]
(c) Testimony of a child-witness by live-link television testimony in a room outside of the
courtroom;[368] and,
(d) Persons deprived of liberty, i.e., a high-risk inmate or with highly contagious disease can
testify by videoconference technology.[369]
2. General Qualifications of a Witness
Sec. 21, Rule 130 of the 2019 Revised Rules on Evidence is the general rule for the legal fitness of a
witness:
Witnesses; their qualifications. – All[370] persons who can perceive, and
perceiving, can make known their perception to others, may be witnesses.
Religious or political belief, interest in the outcome of the case, or conviction of a
crime, unless otherwise provided by law, shall not be a ground for
disqualification.
Sec. 21, Rule 130, as amended adhered to what Wigmore [371] summarized as vital elements of a
verbal representation consisting of three components: (1) observation, (2) recollection, and (3)
communication.[372] By virtue of these assumptions, it was but logical for the Rules Committee to
forego an enumeration of those who were absolutely disqualified to testify under the previous Sec. 21,
Rule 130 of the 1989 Revised Rules on Evidence, viz.: mental incapacity and immature witnesses.[373]
3. Modifications on Testimonial Evidence
Apart from deletion of those absolutely disqualified to testify in Sec. 21, Rule 130 of the old rules, the
concept of Survivorship Disqualification Rule was expanded and transposed in Sec. 39, Rule 130 of the
2019 Revised Rules on Evidence, as an exception to the Hearsay Evidence Rule.
In addition to what used to be 11 exceptions to the Hearsay Evidence Rule in Secs. 37 to 47 of the
previous Rule 130, the residual exception, or what has been described as a catch-all provision, was
added as an exception to the Hearsay Evidence Rule. in Sec. 50, Rule 130, subject to proof of
preconditions therefor.
A significant principle on first-hand knowledge was integrated as Sec. 23, Rule 130 of the 2019
Revised Rules on Evidence and there was a separate treatment of Hearsay Evidence Rule in Sec. 37,
Rule 130 of the 2019 Revised Rules on Evidence, given the acknowledged difference in these concepts.
Under the 2019 Revised Rules on Evidence, conditioned upon proper objection, a witness may be
disqualified to testify due to: (a) want of personal knowledge, (b) spousal immunity, (c) privileged
communication, (d) parental and filial privilege, and (e) privileged trade secrets, which was another
provision integrated in the current rules on evidence.
4. Personal Knowledge v. Hearsay Evidence
Black’s Law Dictionary defined personal knowledge as knowledge of the truth in regard to a
particular fact or allegation, which is original, and does not depend on information or hearsay.[374]
Based on Wigmore’s preconditions for a feasible testimony about one’s capacity for (1) observation
or knowledge, (2) communication, and (3) recollection, personal knowledge of a witness is drawn
from one’s own perception. That of which a witness has personal knowledge is admissible as evidence,
if it is relevant and material.[375]
Hearsay, on the other hand, is evidence relayed by a witness based on another’s perception as proof
of the truth of the imputed evidence. Evidence, the probative value of which does not depend solely
upon the credit to be given to the witness himself or herself, but which depends, also, in part, upon the
competency and veracity of some other person, is termed hearsay. It applies to written as well as to
oral statements.[376] Hearsay is an out-of-court statement offered for the truth of the matter asserted.
[377]

Hence, personal knowledge of the witness is desired as against hearsay, which is generally
inadmissible, unless it qualifies as an exception to the second-hand knowledge category.
Dumont spoke of the distinction between personal knowledge and hearsay in this manner:
Testimony is original, when the witness, who deposes before the judge on the fact in question, is the
identical person who was present at the time and place in question, and received by his or her senses
the perceptions which he now recounts.
Testimony may be called derived (inoriginal), when the witness does not speak from his or her own
personal knowledge, but recites what he or she has been told by another, who is supposed to have
been present at the time and place in question, and to have related the facts according to his or her
own immediate perceptions.
The same distinction is applicable to writings; they are either original or not original; that is, copies.
[378]

Original evidence has an independent probative force of its own while unoriginal, derivative,
transmitted, or second-hand evidence is that which derives its force from, through, or under some
other.[379]
5. Disqualifications
a. Lack of Personal Knowledge
The capacity of a party to give a faithful account of things depends on – (1) the opportunities
he or she has had of observing the matters he or she narrates, (2) his or her powers, either
natural or acquired, of perception, and (3) memory.[380]
If a witness (W) asserts that event X occurred but there is no evidence of W’s capacity to
perceive event X through W’s own perception due to insanity or infancy, the W’s assertion is
devoid of personal knowledge.
If a witness (W) was informed by another (Z) that event X occurred, W may have personal
knowledge of what was relayed by Z to W about event X and it cannot be objected to on the
ground of hearsay since there is no showing that W asserts the truth of event X.
People v. Valdez[381] is clear that there is no rule that a person who hears something cannot
testify on what he or she heard.
b. Spousal Immunity
Unlike the old rule which forbids any form of testimony involving spouses, the rule now
restricts the disqualification to testimony of a spouse against the other during their marriage
except in a civil case filed by one against the other or in a criminal case for a crime committed
by one against the other or the latter’s direct descendant or ascendant.
Only an adverse statement is within the scope of the prohibition since there is no
‘trilemma,’ i.e., contempt, perjury and betrayal of trust, if testimony is favorable to a spouse.[382]
Apart from the two exceptions in Sec. 23, Rule 130, as amended, strained relations of the
spouses was considered an additional exception in Alvarez v. Ramirez[383] involving the arson
allegedly committed by the husband against the sister-in-law’s house when the wife was also
inside. In this situation, given the acknowledged animosity between the spouses, the wife
should be permitted to testify against the husband although the exceptions in the
disqualification were not applicable.
c. Privileged Communication
Where persons occupy toward each other certain confidential relations, the law, on the
ground of public policy, will not compel or even allow, one of them to violate the confidence
reposed in him or her by the other, by testifying, without the consent of the other, as to
communications made to him or her by such other in the confidence which the relation has
inspired. This rule of privileged communications is not a rule of substantive law, but a mere
rule of evidence, which does not affect the general competency of any witness, but merely
renders him or her incompetent to testify to certain particular matters. Hence, the fact that
some part of a witness’ testimony may have been privileged does not justify the exclusion of it
as a whole.[384]
Under Sec. 24, Rule 130, as amended, matters learned in confidence involving: (a) the
husband and wife, (b) attorney and client, (c) physician and patient, (d) priest and the affected
person, and (e) public officer are generally protected. Even communication obtained by a third
person shall remain privileged, provided the original parties to the communication took
reasonable precaution to protect confidentiality.
As to the privileged communication between the husband and the wife, the essence and
language of the rule were retained.
For the attorney-client privilege, it was expanded to cover: (a) a person’s reasonable belief
that one is licensed to engage in the practice of law, and (b) other persons assisting the
attorney, except:
(1) Furtherance of a crime or fraud – [since the intention is to protect
lawful communication];
 (2) Claimants through the same deceased client – [in a will contest, it is not known who
stands in the shoes of the deceased client and there is the assumed favor of the deceased
to disclose communications among claimants to expedite estate disposition];
(3) Breach of duty by lawyer or client – [self-defense theory];
(4) Document attested by a lawyer – [no professional engagement as counsel is
involved]; and
(5) Joint clients – [assumed alliance of position among clients with mutual interests].
For the physician-patient privilege in a civil case, the scope was expanded to cover (a) a
psychotherapist, (b) or person reasonably believed by the patient to be authorized to practice
medicine or psychotherapy, and (c) persons, including members of the patient’s family, who
have participated in the diagnosis or treatment of the patient’s physical, mental or emotional
condition, including alcohol or drug addiction. Also, unlike the old rule, there is now no need for
the privilege to attach that the information “would blacken the reputation of the patient.”
While the language of the rule on physician-patient referred to “any confidential
communication,” only the tenor, rather than the fact, of communication is protected by the rule,
according to Lim v. Court of Appeals, et al.[385]
However, medical records of a patient cannot be produced by discovery procedure before
trial, per Chan v. Chan,[386] since their disclosure will be equivalent to compelling the physician
to testify on privileged matters.
But if a spouse testifies in a petition for annulment of marriage about the other spouse’s
confidential psychiatric report, the physician-patient prohibition does not apply, in line
with Krohn v. Court of Appeals and Krohn, Jr.[387] since the protection is enjoyed by the doctor.
Unlike the old concept on the priest-penitent rule, even a non-penitential communication is
included in Sec. 24(d), Rule 130, such as personal counseling which was intended by the
parishioner to be confidential, but informal conversations, business, or casual conversations
are not privileged.[388]
For the protection extended to a public officer, it is required that the communication was
made in official confidence during one’s tenure, and public interest would suffer by the
disclosure. Absent any public interest to be protected, like tapes and transcripts of the
Monetary Board deliberations on the closure of Banco Filipino in Banco Filipino v. Monetary
Board, et al.,[389] there can be no privileged communication to speak of.
On the other hand, DFA v. BCA International Corporation[390] clarified that aspects of
predecisional and deliberative process are exempt from scrutiny such as notes, drafts, research
papers, internal discussions and records of internal deliberations.
Under Sec. 10 of Rep. Act No. 10361,[391] the Domestic Workers Act or the Batas Kasambahay,
there is equally a legal bar to disclosure by the domestic worker or “kasambahay” of a private
communication from the employer or household members: “Sec. 10. Prohibition against
Privileged Information. – All communication and information pertaining to the employer or
members of the household shall be treated as privileged and confidential, and shall not be
publicly disclosed by the domestic worker during and after employment. Such privileged
information shall be inadmissible in evidence except when the suit involves the employer or
any member of the household in a crime against persons, property, personal liberty and
security, and chastity.”
It was nonetheless clarified in Atienza v. Saluta[392] that a family driver is excluded from the
term domestic worker or kasambahay under Sec. 4(d) of Rep. Act No. 10361, and in view of the
explicit exclusionary clause under Sec. 2(b) of the Implementing Rules and Regulations of
the Kasambahay Law.
d. Parental and Filial Privilege
In Sec. 25, Rule 130, as amended, both parental and filial privileges can be invoked to prevent
coercion of testimony against any of his or her parents, other direct ascendants or other direct
descendants unless indispensable in a crime against that person or by one parent against the
other. According to the Rules Committee, the exception incorporated Art. 215 of the Family
Code.[393]
In Sanchez v. Darroca, et al. (In re Sanchez),[394] the Supreme Court acceded to a permanent
protection order in a petition for a writ of amparo in order to protect a widow and her children
from constant police drive-bys and tailings done by unmarked vehicle, with specific reference
to the parental and filial privilege, thusly:
Further, petitioner’s relationship with her husband insulates her
from any inquiries regarding Labinghisa’s purported membership in the
 New People’s Army. Whatever information respondents may hope to
extract from her or her children are protected by spousal and filial
privileges, which continue to exist even after Labinghisa’s death.
xxxx
The family and its members likewise enjoy a similar privilege. No one
can be compelled to testify against his or her direct descendants or direct
ascendants.
xxxx
Wives and children are not ordinary witnesses, as evidenced by the
privileges they enjoy against State incursion into their relationships.
Hence, respondents’ surveillance of petitioner and her children as
witting or unwitting witnesses against her husband or his activities is
correctible by a writ of amparo.
e. Trade Secrets
In Sec. 26, Rule 130, as amended, a person cannot be compelled to testify about any trade
secret unless non-disclosure will conceal fraud or otherwise work injustice.
In Air Philippines Corporation v. Pennswell, Inc.,[395] the Supreme Court agreed with the
respondent’s advocacy for protection of the law for its proprietary rights over the detailed
chemical composition of its products based on the concept of a trade secret now explicitly
provided by Sec. 26, Rule 130, as amended.
In weighing the corporation’s legal right over trade secrets and the stockholder’s right to
inspect corporate records, Philippine Associated Smelting and Refining Corporation v. Lim, et al.
[396]
emphasized that it was the duty of the corporation to allege and prove the existence of an
illegitimate purpose to the request for inspection because good faith and legitimacy of intention
are presumed.
6. Confession
Confession is an acknowledgement in express words by the accused in a criminal case of the truth of
the main fact charged, or of some essential part thereof.[397]
Concerning Sec. 12,[398] Art. III of the 1987 Constitution, or the Miranda Rights, custodial investigation
is “x x x any questioning initiated by law enforcement authorities after a person is taken into custody
or otherwise deprived of his freedom of action in any significant manner. x x x It begins when there is
no longer a general inquiry into an unsolved crime and the investigation has started to focus on a
particular person as a suspect, i.e., when the police investigator starts interrogating or exacting a
confession from the suspect in connection with an alleged offense.”[399]
Rep. Act No. 7438 reinforced the constitutional mandate and expanded the definition of custodial
investigation. This means that even those who voluntarily surrendered before a police officer must be
apprised of their Miranda rights.[400]
Sec. 34, Rule 130, as amended, reads: “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 or her.”
7. Scope
According to Mr. Justice Regalado’s treatise, this Section [now Sec. 34, Rule 130, as amended] refers
to an extrajudicial confession.[401] Extrajudicial confessions are those which are made by a party
elsewhere such as those made in a prior trial, in the preliminary investigation, or out of court to any
person.[402]
On the other hand, People v. Satorre[403] is the authority for the disposition from the Supreme Court
that the confession may be oral and it can be a judicial confession.[404]
The distinctive feature of a confession is that it must be an acknowledgment of guilt without any
exculpating statements or explanation. However, if the prosecution undertakes to prove statements of
the accused as his confession, any exculpating statements which he made at the time are admissible in
his favor.[405][
The general rule is that an extrajudicial confession is binding only on the confessant and is
inadmissible in evidence against his co-accused since it is considered hearsay against them. However,
as an exception to this rule, the Court has held that an extrajudicial confession is admissible against a
co-accused when it is used as circumstantial evidence to show the probability of participation of said
co-accused in the crime.[406]
8. Confession; Distinguished from Admission
 A confession is an acknowledgment in express[407] terms, by a party in a criminal case, of his or her
guilt of the crime charged, while an admission is a statement by the accused, direct or implied, of facts
pertinent to the issue, and tending, in connection with proof of other facts, to prove his or her guilt. In
other words, an admission is something less than a confession, and is but an acknowledgment of some
fact or circumstance which in itself is insufficient to authorize a conviction, and which tends only to
establish the ultimate fact of guilt.[408]
In a confession, an accused acknowledges his or her guilt; while there is no such acknowledgment of
guilt in an admission.[409] This principle was utilized by the Supreme Court in Sanvicente v. People[410] to
clarify that there was only an admission, instead of a confession, when a letter written by a lawyer and
delivered to the police, contained the last paragraph that: “For all intense (sic) & purposes, this letter
shall serve as a voluntary surrender, without admission of guilt on the part of my client. x x x”
9. Custodial Investigation; Miranda Rights
Concerning Sec. 12, Art. III of the 1987 Constitution, People v. Cabanada[411] reiterated the rights of a
person under investigation for an offense:
The Miranda doctrine requires that: (a) any person under custodial investigation has
the right to remain silent; (b) anything he [or she] says can and will be used against
him [or her] in a court of law; (c) he [or she] has the right to talk to an attorney before
being questioned and to have his [or her] counsel present when being questioned; and
(d) if he [or she] cannot afford an attorney, one will be provided before any
questioning if he [or she] so desires. The said rights are guaranteed to preclude the
slightest use of coercion by the State as would lead the accused to admit something
false, not to prevent him [or her] from freely and voluntarily telling the truth.
The “investigation” in Sec.12, paragraph 1 of the Bill of Rights pertains to “custodial
investigation.” Custodial investigation commences when a person is taken into custody
and is singled out as a suspect in the commission of a crime under investigation and
the police officers begin to ask questions on the suspect’s participation therein and
which tend to elicit an admission.
People v. Lumayag, et al.[412] reiterated that a perfunctory giving of the so-called Miranda rights is
what the Supreme Court has previously frowned upon as ineffective and inadequate compliance with
the mandates of the Constitution. Any confession obtained under these circumstances is flawed and
cannot be used as evidence not only against the declarant but also against his co-accused.
People v. Lauga[413] was to the effect that compliance with the Miranda Rights was expected for an
inquiry conducted by barangay tanods, barangay chair[person] or a barangay-based
volunteer organization in the nature of a watch group or “bantay-bayan.”
Excerpt from People v. Sunga, et al.[414] was utilized to drive home the point that an extrajudicial
confession before the provincial prosecutor enjoys the same safeguards available to an accused under
Rep. Act No. 7438, or An Act Defining Certain Rights of Person Arrested, Detained or Under Custodial
Investigation as well as the Duties of the Arresting, Detaining and Investigating Officers and Providing
Penalties for Violations Thereof. The safeguard of having a written and signed confession before
competent counsel still applies because this right springs from the exclusionary rule.
10. Rep. Act No. 7438
In People v. Mabalato, et al.,[415] the Supreme Court upheld the validity of the extrajudicial confessions
executed by the defendants when tested by constitutional safeguards in Secs. 12 and 17, Art. III of the
1987 Constitution and Rep. Act No. 7438 on the rights of a person under custodial interrogation.
It was underscored in Mabalato, et al. that the defendants were assisted by competent and
independent counsel, their voluntary statements were expressed in writing, and in regard to the
suggestion of coercion supposedly employed by the alleged abusers, the factual backdrop disclosed
that the confessants did not have themselves examined by any physician nor did they institute any
legal action against their alleged abusers. Moreover, the confessants did not complain to their then
counsel, Atty. Truya, or Pros. Dinoy, even when the latter inquired and ascertained from them the
voluntariness of the execution of their confessions. The rule is that where the defendant did not
present evidence of compulsion, where he did not institute any criminal or administrative action
against his supposed intimidators, where no physical evidence of violence was presented, all these will
be considered as indicating voluntariness. Moreover, the confessions dovetailed in material respects
from the moment the defendants were contacted, to the time they planned to liquidate the victim, until
the plan was executed.
Considering that Sec. 2(a) of Rep. Act No. 7438 requires that “any person arrested, detained, or under
custodial investigation shall at all times be assisted by counsel,” People v. Paris and
Fernandez[416] clarified that a legal consultant in the office of the municipal mayor cannot be
considered an independent counsel,[417] especially so when the lawyer arrived after questioning by the
police of the suspect, which factors rendered the extrajudicial confession as inadmissible in evidence.
 Nonetheless, independently of the flaw in the extrajudicial confession, the existence of circumstantial
evidence in Paris and Fernandez impeded exoneration of the accused.
11. Re-enactment
A re-enactment is part of custodial investigation, and pictures of the re-enactment depicting the
accused’s role in the commission of the crime cannot be utilized as evidence of his participation where
the re-enactment was conducted without any lawyer assisting the accused. [418] In fact, re-enactments
are covered by the right against self-incrimination.[419]
12. Police Show-up; Identification
If only four suspects are presented for out-of-court identification by the victim of the four assailants
supposedly involved in carnapping, there is no police lineup to speak of but a police show-up. Such
out-of-court identification of the suspects could have been disregarded since it was not shown that
they were assisted by counsel.[420]
In a long line of cases, the Court has laid down the two guiding principles in order to sustain the
validity of an out-of-court identification: first, a series of photographs must be shown and not merely
that of the suspect; and second, when a witness is shown a group of pictures, their arrangement and
display should in no way suggest which one of the pictures pertains to the suspect. In addition,
photographic identification should be free from any impermissible suggestions that would single out a
person to the attention of the witness making the identification. [421] Further, a defective out-of-court
identification may be cured by subsequent in-court identification. In People v. Rivera and Rivera, it was
ruled that “even assuming arguendo that the out-of-court identification was defective, the defect was
cured by the subsequent positive identification in court for the ‘inadmissibility of a police lineup
identification x x x should not necessarily foreclose the admissibility of an independent in-court
identification.’”[422]
And if the extrajudicial confession was neither put into writing nor made in the presence of persons
mentioned in Sec. 2(d) of Rep. Act No. 7438, People v. Bacero[423] concluded that the extrajudicial
confession was inadmissible in evidence. Nonetheless, the positive identification of the accused by the
prosecution witness was sufficient to pin the defendant for robbery with homicide.
13. Exclusions
Not all statements of a person under investigation for an offense are excluded since a voluntary
disclosure or utterance from the suspect to the media is admissible as part of the res gestae, per People
v. Andan,[424] or the spontaneous statement from the accused as to his killing of the victim which
voluntary declaration was made before the barangay captain, pursuant to People v. Dano.[425]
Neither is a person under a normal audit examination conducted by an audit examiner considered
under custodial investigation within the meaning of Sec. 12, Art. III of the 1987 Constitution.[426]
A picture taken of the accused does not require the assistance of counsel since it is a purely
mechanical act and it does not violate the constitutional right against self-incrimination in Sec. 17, Art.
III of the 1987 Constitution.[427] Since what is prohibited by the constitutional guarantee against self-
incrimination is the use of physical or moral compulsion to extort communication from the witness, to
subject an accused to an ultra-violet radiation is not custodial investigation.[428]
L. Hearsay
1. Concept
According to Greenleaf, the term “hearsay” is used with reference to that which is written, as well to
that which is spoken; and, in its legal sense, it denotes that kind of evidence which does not derive its
value solely from the credence to be given to the witness himself [or herself], but rests also, in part, on
the veracity and competency of some other person.[429]
The rule excluding hearsay evidence is not limited to oral testimony or statements, but also covers
written statements,[430] such as affidavits.[431]
2. Rule 801 Federal Rules of Evidence; Rules Committee
According to the Rules Committee, the old rule in Sec. 36, Rule 130 of the 1989 Revised Rules on
Evidence that “[a] witness can testify only to those facts of which he or she knows of his or
her personal knowledge; that is, which are derived from his or her own perception, except as
otherwise provided in these rules,” did not really define hearsay. The provision confuses the hearsay
rule with the rule limiting testimony to what witnesses can describe on the basis of firsthand
knowledge.[432]
Considering that the Rules Committee adopted the definition of hearsay in Rule 801 of the Federal
Rules of Evidence, it is fitting to relay specific terms referred to in Rule 801:
(a) Statement means a person’s oral assertion, written assertion, or nonverbal conduct, if the
person intended it as an assertion;
 (b) Declarant means the person who made the statement; and,
(c) Hearsay means a statement that:
(1) the declarant does not make while testifying at the current trial or hearing; and
(2) a party offers in evidence to prove the truth of the matter asserted in the statement.
3. Elements
From the foregoing Rule 801 of the Federal Rules of Evidence, evidence is hearsay if what the in-
court witness declares is: (1) an out-of-court assertion from the declarant, and (2) offered as proof of
the truth of the assertion.[433]
Under the new rule in Sec. 37, Rule 130, as amended, the inadmissible evidence is a statement which
is either oral or written, or a non-verbal conduct, if offered by the witness as an assertion, i.e., proof of
the truth of the declarant’s assertion.
4. Concept of an Assertion
For Wigmore, any assertion, whether in court or not, may be testimonial evidence. The use of the
phrase “testimonial” evidence must not be understood as applicable exclusively to assertions made on
the witness stand. Any assertion, taken as the basis of an inference to the existence of the matter
asserted, is testimony, whether made in court or not. Thus, all the statements received under the
exceptions to the hearsay rule are genuinely testimony. Assertions made on the witness stand are
merely the commonest class of testimonial evidence. It follows that the qualifications of a witness are
equally essential in the use of extrajudicial assertions. In practice the Court does not always insist on
proof of these qualifications beforehand; but many of the rules established for the hearsay exceptions
are nothing more than applications of the rules of testimonial qualifications to extrajudicial assertions.
[434]

5. Two Witnesses; Reasons for Rejection of Hearsay Evidence

In reality, therefore, in every hearsay problem or derived testimony, there are actually at least two
(2) witnesses[435] who are engaged in the art of expression: (1) the visible witness, who testifies about
the declarant’s assertion, and (2) the invisible witness, who is the source of the assertion. And in this
odd scenario, one can draw the reasons for rejection of hearsay: only the visible witness undergoes the
oath, confrontation, and cross-examination while the invisible enjoys immunity from these procedural
safeguards.
To reiterate, there are several reasons for excluding hearsay testimony, the chief of which are the
following: (1) the original statement is not made under oath; (2) no opportunity is afforded the
adverse party to cross-examine the original party who makes the statement; and (3) no opportunity is
given to observe the demeanor of the original party who makes the statement.[436]
6. No Probative Value
Hearsay evidence, whether objected to or not, has no probative value unless the proponent can show
that the evidence falls within the exceptions to the hearsay evidence rule.[437]
7. Caveat
It must be clarified that not all statements made by an out-of-court declarant, as reiterated by an in-
court witness, are hearsay. To constitute hearsay, the repeated statement must be offered for the
purpose of proving what the declarant said is true.[438]
Under the second paragraph of Sec. 37, Rule 130, as amended, if the declarant opts to testify about
the declarant’s previous statement, which is either (a) inconsistent or (b) consistent with the current
testimony, or (c) as identification of a person, such prior declaration cannot be classified as hearsay
since each of these purposes is not to prove the truth of the assertion.
It follows that it is important to focus closely on the purpose for which the declarant’s statement is
offered.[439] As a rule of thumb, if the intention of the declarant’s statement is not to prove the truth of
the assertion, or, under any of the three circumstances under Sec. 37, Rule 130, as amended, a hearsay
problem is not involved.
Also, if the intention of the declarant’s statement is to prove merely the fact of utterance or the tenor
of the utterance, it may be an independently relevant statement and is not covered by the hearsay rule,
as reiterated in Arriola v. People.[440]
The rule on second-hand knowledge is now in Sec. 37, Rule 130, as amended:
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.
8. Distinct from Personal Knowledge
The concept of hearsay is different from the requirement of personal knowledge in Sec. 22, Rule 130,
as amended:
Testimony confined to personal knowledge. – A witness can testify only to those
facts which he or she knows of his or her personal knowledge; that is, which are
derived from his or her own perception.
To distinguish personal knowledge from hearsay evidence, a witness’ mere assertion of evidence
derived from an external source, which was acquired by personal knowledge of the witness, does not
automatically imply hearsay evidence. After all, and to repeat what was relayed in People v. Valdez,
[441]
“[t]here is no rule that a person who hears something cannot testify on what she heard.” For
instance, the declaration of a witness that the accused told him that he raped the victim was an
extrajudicial admission of the accused, instead of hearsay, as ruled by the Supreme Court in People v.
Mayorga.[442]
When a main fact in issue, or a material evidentiary fact, is what was said, and not its truth or falsity,
testimony of what was said is original evidence and not hearsay. In such case the statement is not used
testimonially. Thus, in an action for slander a main fact in issue is usually the making of the alleged
statement; and testimony of this fact, by a party who heard the statement, is original evidence.[443]
Again, a witness’ assertion of the truth of extrinsic evidence is hearsay unless it is offered and can
qualify as an exception to the hearsay rule.
M. Exceptions to the Hearsay Rule
1. Reasons
Two general notions underlie exceptions to the hearsay rule: (a) necessity, i.e., death or
unavailability of the proposed declarant, and (b) trustworthiness, i.e., in the exception for dying
declaration, it is the dreadful[444] situation of the declarant, or improbability of making a declaration
against interest unless it is true.[445]
2. Substantial Changes
As compared to the 11 exceptions in the old rules, there are now 13 exceptions to the hearsay rule in
Secs. 38 to 50,[446] Rule 130, as amended, with the addition of the statement of the deceased or person
of unsound mind in Sec. 39, previously covered by the dead man’s statute rule, and the residual
exception in Sec. 50, Rule 130, as amended.
Apart from gender inclusivity in some exceptions, in a declaration against interest, an exculpatory
statement from the declarant requires corroborating evidence of trustworthiness.
In acts or declarations, family reputation or tradition, about pedigree in Secs. 41 to 42, Rule 130, as
amended, adoption was included. And in the absence of proof of relation by birth, adoption or
marriage, evidence from a person intimately associated with the family may be received as proof
of pedigree.
In common reputation, boundaries or customs affecting lands in the community and reputation as to
events of general history important to the community were included in Sec. 43, Rule 130, as amended.
Statements during a startling occurrence incorporated those made under the stress of excitement
caused by the occurrence with respect to the circumstances of the res gestae.
The previous provision on entries in the course of business was subjected to an overhaul and is now
denominated as records of regularly conducted business activity under Sec. 45, Rule 130, as amended.
Testimony or deposition at a former proceeding in Sec. 49, Rule 130, as amended, now includes a
witness who is out of the Philippines, or cannot, with due diligence, be found therein, or is unavailable
or otherwise unable to testify.
A residual exception was included as the last exception to serve as a catch-all provision provided it
hurdles the requisites of trustworthiness, materiality, the statement is more probative on the point for
which it is offered, its admission will serve the general purpose of the rules and the interest of justice,
and notice by the proponent to the opponent of the intention to offer a residual exception.
3. Specific Exceptions
a. Ante Mortem Statement and Res Gestae
In People v. Palanas,[447] the statement of the victim to a police officer, while the victim was on
the way to the hospital, which utterance was reiterated to the victim’s wife, that it was “Abe,”
“Aspog, ” or “Abe Palanas” – referring to his neighbor, Palanas – who shot him, was accepted as
both a dying declaration, and as part of the res gestae, given the subsequent death of the victim.
These spontaneous exclamations pertained to the cause and circumstances of his death and
taking into consideration the number and severity of his wounds, it may be reasonably
presumed that he uttered the same under a fixed belief that his own death was already
imminent.
People v. Ivero[448] reiterated the requisites for a dying declaration:
Four requisites must concur in order that a dying declaration may be
admissible, thus: First, the declaration must concern the cause and surrounding
circumstances of the declarant’s death. This refers not only to the facts of the
assault itself, but also to matters both before and after the assault having a
direct causal connection with it. Statements involving the nature of the
declarant’s injury or the cause of death; those imparting deliberation and
willfulness in the attack, indicating the reason or motive for the killing;
justifying or accusing the accused; or indicating the absence of cause for the act
are admissible. Second, at the time the declaration was made, the declarant
must be under the consciousness of an impending death. The rule is that, in
order to make a dying declaration admissible, a fixed belief in inevitable and
imminent death must be entered by the declarant. It is the belief in impending
death and not the rapid succession of death in point of fact that renders the
dying declaration admissible. It is not necessary that the approaching death be
presaged by the personal feelings of the deceased. The test is whether the
declarant has abandoned all hopes of survival and looked on death as certainly
impending. Third, the declarant is competent as a witness. The rule is that
where the declarant would not have been a competent witness had he survived,
the proffered declarations will not be admissible. Thus, in the absence of
evidence showing that the declarant could not have been competent to be a
witness had he survived, the presumption must be sustained that he would have
been competent. Fourth, the declaration must be offered in a criminal case for
homicide, murder, or parricide, in which the declarant is the victim.
People v. Sergio and Lacanilao[449] equated Mary Jane Veloso’s deposition through written
interrogatories during her incarceration for drug trafficking in Indonesia, and prior to her
impending execution by firing squad, as akin to a dying declaration which can be utilized as
evidence in the criminal case against the recruiters of Mary Jane Veloso who exploited her to
engage as a drug mule. Undoubtedly, “x x x Mary Jane’s declarations in her deposition ‘are made
in extremity, [she being] at the point of death, and x x x every hope of this world is gone; when
every motive to falsehood is silenced and the mind is induced by the most powerful
considerations to speak the truth,’ to vindicate oneself, and to secure justice to her detractors.”
A dying declaration is an evidence of the highest order; it is entitled to the utmost credence on
the premise that no x x x person who knows of his impending death would make a careless and
false accusation. At the brink of death, all thoughts on concocting lies disappear.[450]
It is the belief of impending death, and not the rapid succession of death, in point of fact, that
renders the dying declaration admissible.[451]
According to People v. Valdez,[452] there is no rule that a person who hears something cannot
testify on what she heard. A dying declaration need not be particularly directed only to the
person inquiring from the declarant. Anyone who has knowledge of the fact of what the
declarant said, whether it was directed to him or not, or whether he had made inquiries from
the declarant or not, can testify thereto.
In addition to the four requisites of a dying declaration, People v. De Joya[453] discussed the
incremental element of completeness of the ante mortem statement when the Supreme Court
did not consider the declarant’s response: “Si Paqui” to the question of “Apo, Apo, what
happened?” as a dying declaration.
On the other hand, in People v. Bautista,[454] an entry on a police blotter of the statement of a
witness about an alleged dying declaration, without the testimony of the one who heard
the ante mortem declaration, will not suffice.
Aleson Shipping Lines v. CGU International Ins. PLC. and Candado Shipping Lines, Inc.
[455]
considered the utterances relayed by the Chief Engineer and Chief Mate of a vessel, who
witnessed a collision and sinking of a vessel which almost claimed their lives a few hours after
the incident, to two witnesses who testified about the accident, qualified as spontaneous
exclamations. Res gestae is one of the exceptions to the hearsay rule. It contemplates
testimonial evidence on matters not personally witnessed by the witness, but is relayed to him
or her by a declarant.[456]
In People v. Vargas and Bagacina,[457] received as part of the res gestae was the victim’s sworn
statement in question and answer format, who managed to convey the affiant’s answers to the
questions propounded through writing and movement of the affiant’s head and hands, and
while intubated in the hospital for an extensive surgery due to gunshot wounds sustained
during the shooting incident. During the three days that intervened the shooting incident and
when the statements were made, the victim had no time to deliberately fabricate a story.
b. Statement of Decedent or Person of Unsound Mind
Under the previous rule, a survivor cannot testify against the deceased or an insane on any
matter of fact which occurred before the death of the deceased or before the person became of
unsound mind upon a claim or demand against the estate of such deceased person or insane.
[458]

The Dead Man’s Statute Rule was based on the idea that “[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.”[459] The disqualification under the old rule can be
waived either by: (a) cross-examination of the survivor, or (b) invocation of a counterclaim
against the survivor.[460]
With the amendment of the rule, now interjected as an additional exception to the hearsay
rule, a survivor can testify against the deceased or the insane person if there is a previous
statement from the deceased or the insane which is based on personal knowledge and is
trustworthy.[461]
According to jottings of the Rules Committee, the new rule was intended to avoid an injustice
to the living. For instance, were it not for the amendment, “if a survivor has rendered services,
furnished goods or lent money to a man whom he or she trusted, without an outside witness or
admissible written evidence, he or she is helpless if the other dies and the representative of his
or her estate declines to pay. The survivor’s mouth may even be closed in an action arising from
a fatal automobile collision, or in a suit upon a note or an account which the survivor paid in
cash without taking a receipt.”[462]
c. Declaration Against Interest
It is axiomatic that a man’s [person’s] act, conduct and declaration, wherever made, if
voluntary, are admissible against him or her, for the reason that it is fair to presume that they
correspond with the truth, and it is his or her fault if they do not. [463] Such reason for an
admission of a party in Sec. 27, Rule 130, as amended, may well apply to a declaration against
interest which also assumes an unfavorable outcome for the declarant on the qualification that
the declarant is either deceased or unable to testify.
As worded, Sec. 40, Rule 130, as amended, retained the requirement of the declarant’s demise
or unavailability of the declarant to testify on one’s prejudicial statement. It introduced a new
concept that if a statement exposes the declarant to criminal liability and exculpatory of the
accused, it can only be admitted if there are corroborating circumstances indicative of
trustworthiness of the statement.
To guard against the danger of a witness testifying falsely that he or she has heard another
person (deceased or unable to testify) confess to the crime for the purpose of exculpating the
accused, the Sub-Committee decided to adopt the requirement in Rule 804(b)(3) of the Federal
Rules of Evidence that there must be “corroborating circumstances” clearly indicating the
trustworthiness of the statement. As to the meaning of “corroborating circumstances,” there
must be independent evidence that directly or circumstantially tends to prove the purpose for
which the statement is offered—for example, evidence supporting the veracity of the declarant,
the fact that the statement was against interest to an unusual degree, the declarant repeated
the statement, the declarant could not be motivated to falsify for the benefit of the accused, or
other facts suggesting trustworthiness, such as spontaneity.[464]
In order to avoid misconception, Lazaro, et al. v. Agustin, et al.[465] clarified that “there is a vital
distinction between admissions against interest and declarations against interest. Admissions
against interest are those made by a party to a litigation or by one in privity with or identified
in legal interest with such party, and are admissible whether or not the declarant is available as
a witness. Declarations against interest are those made by a person who is neither a party nor
in privity with a party to the suit, are secondary evidence, and constitute an exception to the
hearsay rule. They are admissible only when the declarant is unavailable as a witness x x x.”
 To repeat, a declaration against interest assumes the declarant’s death or unavailability as a
witness, and if the declarant is available and testifies, his or her statement against interest,
which he or she now denies, can serve as basis for a prior inconsistent statement.[466]
d. Acts or Declarations About Pedigree and Family Reputation or Tradition
Pedigree embraces any notable fact in the life of a member of the family, [467] or in the family
history which might well be supposed to be known to the members in general. [468] These
declarations are receivable in all cases where they become legitimate subjects of judicial
inquiry and investigation.[469]
As currently worded, Sec. 41, Rule 130, as amended, now extends to cases where the
declarant is related to the subject by “adoption” or “with whose family he or she was so
intimately related as to be likely to have accurate information concerning his or her pedigree.”
According to the Rules Committee, the rationale for the modification of the exception to the
hearsay rule is that statements about another, if the declarant was related to the person by
“adoption” or so “intimately associated” with the family that he or she likely had “accurate
information” are trustworthy enough.[470]
In addition to establishing pedigree through a relative under Sec. 41, Rule 130, as amended,
family reputation or tradition existing in the family, or entries in family bibles, inclusive of
other family memento can also prove pedigree in Sec. 42, Rule 130, as amended, which also
incorporated a testimonial sponsor who is related by adoption, in the spirit of liberality. [471] For
instance, testimony as to one’s own age is admissible as an assertion of family tradition since
knowledge as to one’s age is acquired from whatever is told by the parents or relatives.[472]
In appreciating age, either as an element of a crime, or as a qualifying circumstance, XXX v.
People[473] reiterated guidelines from Pruna:[474]
1. The best evidence to prove the age of the offended party is an original or certified true
copy of the certificate of live birth of such party.
2. In the absence of a certificate of live birth, similar authentic documents such as
baptismal certificate and school records which show the date of birth of the victim
would suffice to prove age.
3. If the certificate of live birth or authentic document is shown to have been lost or
destroyed or otherwise unavailable, the testimony, if clear and credible, of the victim’s
mother or a member of the family either by affinity or consanguinity who is qualified to
testify on matters respecting pedigree such as the exact age or date of birth of the
offended party pursuant to Sec. 40, Rule 130 of the Rules on Evidence shall be sufficient
under the following circumstances:
a. If the victim is alleged to be below three (3) years of age and what is sought to
be proved is that she is less than seven (7) years old;
b. If the victim is alleged to be below seven (7) years of age and what is sought to
be proved is that she is less than twelve (12) years old;
c. If the victim is alleged to be below twelve (12) years of age and what is sought
to be proved is that she is less than eighteen (18) years old.
4. In the absence of a certificate of live birth, authentic document, or the testimony of the
victim’s mother or relatives concerning the victim’s age, the complainant’s testimony
will suffice provided that it is expressly and clearly admitted by the accused.
5. It is the prosecution that has the burden of proving the age of the offended party. The
failure of the accused to object to the testimonial evidence regarding age shall not be
taken against him.
6. The trial court should always make a categorical finding as to the age of the victim.
However, letters or notes of relatives of the supposed father attesting to the child’s filiation
are not included in what was described as “family possessions” in Sec. 40, Rule 130, now Sec.
42, Rule 130 as amended.[475]
e. Common Reputation
Reputation is the general opinion of people in the community as to a person’s character traits,
and is therefore evidence of (and a common way to prove) character.[476]
Under the modified rule in Sec. 43, Rule 130, as amended, which was partly lifted from Rule
803(20) of the Federal Rules of Evidence, matters which can be established by common
reputation ante litem motam, are:
a) Boundaries of, or customs, affecting lands in the community;
 b) Reputation as to events of general history important to the community;
c) Marriage;
d) Moral character; and
e) Monuments and inscriptions in public places.
In Heirs of Fabillar v. Paller, et al.,[477] filiation may be established by common reputation
respecting one’s pedigree, subject to the qualification that if the evidence consists of the
baptismal certificate, it “has evidentiary value to prove filiation only if considered alongside
other evidence of filiation. Because the putative parent has no hand in the preparation of a
baptismal certificate, the same has scant evidentiary value if taken in isolation; while it may be
considered a public document, ‘it can only serve as evidence of the administration of the
sacrament on the date specified, but not the veracity of the entries with respect to the child’s
paternity.’ As such, a baptismal certificate alone is not sufficient to resolve a disputed filiation,
and the courts must peruse other pieces of evidence instead of relying only on a canonical
record.”[478]
For marital union, a distinguishing mark as to proof of marriage by common reputation is that
evidence thereon need not proceed from persons who are members of the family, unlike other
matters of pedigree. And the disparity on this trait is to be found in public interest which is
taken in the question of the existence of a marriage between two parties, the propriety of
visiting or otherwise treating them in society as husband and wife, the liability of the man for
the debts of the woman, the power of the latter to act suo jure, and their competency to enter
into new matrimonial engagements.[479]
Concerning impeachment of an adverse party’s witness under Sec. 11, Rule 132, as amended,
by evidence of character, which can be established by common reputation, “it is necessary that
the reputation shown should be that which existed before the occurrence of the circumstances
out of which the litigation arose, or at the time of the trial and prior thereto, but not at a period
remote from the commencement of the suit. This is because a person of derogatory character or
reputation can still change or reform himself.”[480]
f. Entries in Business Records and Entries in Official Records
The term “record” may be any form of memorandum, report, record or data compilation,
including electronic computer storage.[481] Business activity can cover schools, churches,
hospitals,[482] and commercial operations, profession, occupation and institution, whether or
not carried on for profit.[483]
On account of common features of business and public records, it is best to tackle them
together although these exceptions to the hearsay rule were separately mentioned in Secs. 45
and 46, Rule 130, as amended.
As an exception to the hearsay rule, reliance on business records is based on regularity in
record keeping.[484] On this score, entries in the payroll, being entries in the course of business,
enjoy the presumption of regularity under [the previous rule in] Sec. 43, Rule 130 of the Rules
of Court.[485]
Unlike the old rule in Sec. 43, Rule 130 which assumed the death or inability of the entrant to
testify on the facts reflected on the record, [486] which requirements were perceived by the Rules
Committee as stringent “and would work undue hardship on the litigants and may render the
current exception useless,”[487] the modified rule did not impose the requirement of demise or
unavailability of the entrant. Nonetheless, per Jones’ observation, the law required that the
entrant was in a position to know the facts stated therein and the entrant must have entered
the entries in his or her professional capacity or in the regular course of business, or duty.
[488]
Hence, it would be sufficient for the custodian or a qualified witness to testify that a report
was entered as a regular practice in the course of such business activity.
Per additional jottings from the Rules Committee on the “shop-book” rule, which was
premised on the policy of reliability,[489] and as a virtual reproduction of the counterpart
provision under Sec. 1, Rule 8 of the Rules on Electronic Evidence, “[t]here is no reason why the
exception relating to entries in the course of business as provided in Rule 8, Sec. 1, Rules on
Electronic Evidence should not be applied to paper-based or non-electronic documents. A
liberalized exception for business records is a practical necessity in the modern
business environment.”[490]
Entries in official records in Sec. 46, Rule 130, as amended, are accorded prima facie evidence
of the facts stated therein, as distinguished from entries in business records.
A medico-legal report shall be given weight and credence, even if the government physician
from the Philippine General Hospital, who examined and prepared it, was not presented in
court, and a colleague was the one who identified the signature of the medico-legal officer,
which scenario transpired in People v. Tuyor.[491]
Apart from reinforcing substantive norm that Art. 777 of the New Civil Code is clear that the
rights of succession are transmitted from the moment of the death of the decedent even prior to
any judicial determination of heirship, Treyes v. Larlar, et al.[492] also referred to the nature of
the birth certificate as a public document and it “offers prima facie evidence of filiation and a
high degree of proof is needed to overthrow the presumption of truth contained in such public
document. This is pursuant to the rule that entries in official records made in the performance
of his duty by a public officer are prima facie evidence of the facts therein stated.”[493]
In DST Movers Corporation v. People’s General Insurance Corporation,[494] it was reiterated by
the Supreme Court that the entrant need not testify provided the requisites for the rule on
official record are met.[495]
Pursuant to duty enjoined by law, such as the task of the DENR to execute, supervise and
manage the conduct of cadastral surveys, the cadastral map and the corresponding list of
claimants qualify as entries in official records as they were prepared by the DENR, as mandated
by law. As such, they are exceptions to the hearsay rule and are prima facie evidence of the facts
stated therein.[496]
g. Commercial Lists and the Like
Without any change in the language of the previous rule on commercial lists and the like, the
requisites of the rule now reflected in Sec. 47, Rule 130, as amended, may still apply.[497]
As an additional exception to the hearsay rule, such commercial lists and the like may be
admitted in evidence without calling the authors, compilers, or publishers thereof to the
witness stand. The rule has been applied to reports of judicial decisions, to unofficially
published law reports as well as to those officially published, foreign as well as domestic,
although some of these may be admissible under the other exceptions to the hearsay rule.[498]
A report on a newspaper account is hardly a commercial list since it is only an analysis or
opinion but objective facts, such as stock market quotations, reports of prices listed in trade
journals, city directories, and mortality and annuity tables, have been recognized as within the
exception.[499]
h. Learned Treatise
A published treatise may be admitted as tending to prove the truth of its content if: (1) the
court takes judicial notice; or (2) an expert witness testifies that the writer is recognized in his
or her profession as an expert in the subject.[500]
In Arreza v. Toyo, et al., the trial court can hardly be blamed for not acknowledging the English
translation of the Civil Code of Japan as a learned treatise sans judicial notice of the translator’s
and advisors’ qualifications, inclusive of an expert who should have testified that the writer was
an expert in the field, especially so when the only evidence of the translator’s and
advisors’ credentials was the inside cover page of the English translation of the Civil Code of
Japan.[501]
The second alternative of utilizing an expert to testify to the qualifications of the writer was
intended to remove the danger of an ignorant use of statements by writers of no standing.[502]
i. Testimony or Deposition at a Former Proceeding
In addition to a deceased witness, included under Sec. 49, Rule 130, as amended, were the
testimony or deposition of a witness who is (1) out of the Philippines, synonymous with what
transpired in People v. Sergio and Lacanilao,[503] or is (2) unavailable, or (3) otherwise unable to
testify, which are also the conditions specified in Sec. 1(f), Rule 115 of the 2000 Rules on
Criminal Procedure.[504]
While the language of the previous and the current rule seemed to restrict admissibility of the
testimony or deposition at a former judicial or administrative proceeding,
a legislative proceeding is also included in the context of the rule on reported testimony.[505]
Ambray and Ambray, Jr. v. Tsourous, et al. [506] reiterated the requisites for admissibility of a
former testimony or deposition, and the need to lay the proper basis therefor: “Case law holds
that for the said rule to apply, the following requisites must be satisfied: (a) the witness is dead
or unable to testify; (b) his or her testimony or deposition was given in a former case or
proceeding, judicial or administrative, between the same parties or those representing the
same interests; (c) the former case involved the same subject as that in the present case,
although on different causes of action; (d) the issue testified to by the witness in the former
trial is the same issue involved in the present case and (e) the adverse party had an opportunity
to cross-examine the witness in the former case. The reasons for the admissibility of testimony
taken at a former trial or proceeding are the necessity for the testimony and its
trustworthiness. However, before the former testimony can be introduced in evidence, the
proponent must first lay the proper predicate therefor, i.e., the party must establish the basis
for the admission of testimony in the realm of admissible evidence.”
A significant precondition of the reported testimony rule is the opportunity to cross-examine
the witness which was addressed in Martinez v. Ongsiako[507] where the Supreme Court had the
occasion to underscore the need to properly notify the adverse party and counsel prior to the
cross-examination of the deponent who requested for perpetuation of his testimony, given his
end-stage renal disease.
And inasmuch as what is referred to by the rules is the previous testimony or deposition of a
witness, the adoption by a trial court of the facts stated in the decision of another coordinate
court “does not fall under the exception to the right of confrontation as the exception
contemplated by law covers only the utilization of testimonies of absent witnesses made in
previous proceedings, and does not include utilization of previous decisions or judgments.”[508]
j. Residual Exception
Sec. 50, Rule 130, as amended, is referred to as the catch-all exception to the hearsay evidence
rule and it was patterned after Rule 807[509] (a) and (b) of the Federal Rules of Evidence. It
should be “used very rarely and only in exceptional circumstances.”[510]
These requirements must be satisfied before the residual exception can apply:
a. The statement is not specifically covered by any of the exceptions in Secs. 38 to 49,
Rule 130;
b. The statement must be trustworthy;
c. The statement is offered as evidence of a material fact;
d. 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;
e. Admission of the statement will serve the purpose of the rules and the interests of
justice;[511] and,
f. Notice from the proponent of the intention to offer the statement against the
opponent, with sufficient details of the name and address of the declarant, prior to
hearing or pre-trial, for a fair opportunity to prepare to meet the requested exception.
For the third requisite, this amounts to a restatement of the requirement of relevance already
imposed in Rule 401 and Rule 402.[512]
On the fourth requisite, Professor Lilly continued to relay that: “[a]s to the “more probative”
requirement, the rationale for it is that the residual exception should be narrowly applied and
therefore should be used sparingly, only when necessary. (The concern is that the residual
exception, broadly applied, would allow for too much judicial discretion and perhaps expand to
take the place of the categorical exceptions).
In deciding whether the residual hearsay is “more probative” the judge must consider
whether other evidence can be procured by reasonable efforts. The other evidence may consist
of the declarant’s deposition, her appearance as a witness, or testimonial or documentary
evidence from other sources. For example, assume that a plaintiff, a former prisoner, is suing
prison guards for their role in a prison fight in which the plaintiff was injured. The plaintiff
offers the written account of a fellow prisoner, describing the guards’ actions during the fight.
Assume this writing is sufficiently trustworthy; it is nonetheless likely to be excluded because it
is not more probative than other evidence reasonably available – specifically, testimony than
other evidence reasonably available – specifically, testimony that could be provided by other
prisoners with personal knowledge of the event.”[513]
On the availability of the witness, “[g]enerally speaking, if the declarant is available to testify,
the hearsay will be inadmissible under Rule 807 because it is not “more probative” than the
trial testimony. There are exceptions, however – such as where the witness is a child who
would be unlikely to be communicative on the stand – in which the residual hearsay will be
more probative than the declarant’s trial testimony, because in order to be admissible it will
have to be made under circumstances that guarantee reliability.”[514]
Illustrative of the residual exception is the hearsay exception in child abuse cases mentioned
in Sec. 28 of A.M. No. 00-4-07-SC, effective on December 15, 2000, or the Rule on Examination
of a Child Witness, which was discussed by Justice Brion when the propriety of the Petition for
a Writ of Amparo was resolved in Razon, Jr., et al. v. Tagitis, by a tangential reference to
flexibility in appreciation of evidence in extrajudicial killings and enforced disappearance cases.
[515]
N. Opinion Rule
Opinion evidence is evidence of what the witness thinks, believes, or infers in regard to facts in dispute, as
distinguished from his or her personal knowledge of the facts themselves.[516]
What the law expects from a witness is a statement of fact known or perceived by him or her, not an opinion
based on those facts, for the purpose of evidence. [517] And that is why reception of evidence of a witness’
opinion, impression, or surmise is legally proscribed by Sec. 51, Rule 130, as amended, subject to an expert’s,
or an ordinary witness’ opinion over identity of a person, handwriting, mental sanity, emotion, behavior,
condition or a person’s appearance, if with proper foundation is laid, in Secs. 52 and 53 of the
Rule, respectively.
An opinion is different from a fact. The generally recognized distinction between a statement of “fact” and
an expression of “opinion” is that whatever is susceptible of exact knowledge is a matter of fact, while that not
susceptible of exact knowledge is generally regarded as an expression of opinion.[518]
In resolving the question of forgery on the deed of sale, the Supreme Court was of the view that petitioners
managed to hurdle their burden in Tortona, et al. v. Gregorio, et al.[519] through an expert’s contrast of
apparent thumbmarks on the questioned deed of conveyance and thumbmarks on authentic
documents. Tortona also reiterated the rule that opinions, when admissible, must have proper factual basis.
They must be supported by facts or circumstances from which they draw logical inferences. An opinion bereft
of factual basis merits no probative value. Tortona continued to impart the message that if there is direct
evidence on the fact in issue, an expert’s opinion is superfluous.[520]
Neither is a witness allowed to relay a conclusion of law, which is a legal inference on a question of law
made as a result of a factual showing where no further evidence is required, such as prescription as averred
on a Complaint, or characterization of a contract as void or voidable.[521]
Courts are not necessarily bound by the testimony of the expert witness. It falls within the discretion of the
court whether to adopt or not to adopt testimonies of expert witnesses, depending on its appreciation of the
attendant facts and applicable law.[522] For instance, whether a man [person] died of poisoning or of heart
disease, is a fact to which ordinary witnesses cannot testify. It requires the knowledge of persons who have
made a special study of the matter. The testimony of such persons, called expert evidence, is therefore
necessary.[523]
1. Expert Witness
Aside from gender inclusive language, interjected by the Rules Committee, as an additional
requirement for an expert, is education, for a more expansive coverage.[524]
Inasmuch as Rule 702 of the Federal Rules of Evidence revolved on weight,[525] it was in Sec. 5, Rule
133,[526] as amended, where the Rules Committee decided to reflect the factors to determine weight to
be given on the opinion of an expert witness.[527] According to the Rules Committee, Sec. 5, Rule 133
gives to the judge considerable leeway and the listing of particular factors was meant to be “helpful”
rather than “definitive.”[528]
The word “expert” has been defined judicially as: “A man [person] of science; a person conversant
with the subject-matter; a person of skill; a person possessed of science or skill respecting the subject-
matter; one who has made the subject upon which he [or she] gives his [or her] opinion a matter of
particular study, practice or observation.”[529]
Before one may be allowed to testify as an expert witness, his or her qualifications must first be
established by the party presenting him or her, i.e., he or she must be shown to possess the special skill
or knowledge relevant to the question to which he or she is to express an opinion. [530] A mere
statement of a witness that he or she is an expert is not sufficient to qualify him or her as such.[531] To
illustrate, a general practitioner in medicine is not necessarily competent to diagnose any and all kinds
of illnesses and diseases. As such, a doctor’s finding without any adequate foundation of expertise in
the particular field of medicine, such as the medical result of a mental problem of an individual, is not
automatically binding on the court.[532]
a. Psychological Incapacity
In Tan-Andal v. Andal,[533] sufficient proof by experts via medical or clinical identification of
psychological incapacity under Art. 36 of the Family Code, previously treated as a second
guideline in Republic v. Court of Appeals and Molina, [534] was categorically abandoned. As a
result of Tan-Andal, “[p]sychological incapacity is neither a mental incapacity nor a personality
disorder that must be proven through expert opinion.”[535]
Nonetheless, Tan-Andal cautioned that there must be proof of what was referred to as
“personality structure” about clear acts of dysfunctionality which “aspects of personality need
not be given by an expert. Ordinary witnesses who have been present in the life of the spouses
before the latter contracted marriage may testify on behaviors that they have consistently
observed from the supposedly incapacitated spouse. From there, the judge will decide if these
 behaviors are indicative of a true and serious incapacity to assume the essential
marital obligations.”
In view of the very nature of Art. 36, as psychiatrists and psychologists reasonably rely upon
such type of facts and data in rendering their opinions, courts must give due regard to expert
opinion on the parties’ psychological and mental disposition.[536]
b. Signature
For handwriting analysis, Sec. 52, Rule 130, as amended, used the word “may” which signifies
that the use of opinion of expert witness is permissive and not mandatory. [537] In fact, to
determine a factual issue like forgery, it is enough for a judge to utilize a comparison of the
questioned signature “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” [538] under Sec.
22, Rule 132, as amended.
c. Polygraph Test
Citing People v. Adoviso,[539] Philippine Savings Bank v. Genove[540] clarified that although the
results of a polygraph test cannot be offered in evidence to establish guilt or innocence of an
accused in a crime, it can still be used as corroborative evidence by a party. In Genove, the bank
teller passed the polygraph test which she willingly took but the evidence disclosed that the
bags of missing money were left to the respondent, as a bank teller, and were later found in her
cubicle. According to the Supreme Court, such circumstances were insufficient to prove the
respondent’s liability, absent any video footage which could have indicated how the money
ended up in her cubicle.
d. Paraffin Test
Paraffin and ballistic testing are not indispensable to prove accused-appellant’s guilt. In De
Guzman, this Court discussed that paraffin testing is conclusive only as to the presence of
nitrate particles in a person, but not as to its source, such as from firing a gun. By itself, paraffin
testing only indicates a possibility, not infallibility, that a person has fired a gun. Similarly,
ballistic testing establishes only a likelihood that a bullet was fired from a specific weapon. By
itself, it is not enough to prove when the weapon was fired and who fired the weapon.[541]
e. DNA Evidence
Under the Rules on DNA Evidence, if the value of the probability of paternity is 99.9% or
higher, such as the result in People v. Clemeno which indicated 99.999999% statistical
probability that accused-appellant is the father of AAA’s child, there shall be a disputable
presumption of paternity. Such DNA result can corroborate a complainant’s testimony that the
defendant, charged with rape, had carnal knowledge with the victim.[542]
In District Attorney’s Office for the Third Judicial District, et al. v. Osborne,[543] the United States
Supreme Court emphasized that a convict, who was condemned for sexual assault and other
crimes in state court, has no constitutional right to obtain post-conviction access to the State’s
evidence for DNA testing, more so when the defense declined, for tactical reasons, to avail of
DNA testing during trial.
2. Ordinary Witness
A lay witness may testify in the form of opinions or inferences which are limited to those opinions or
inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear
understanding of his testimony or the determination of a fact in issue.[544]
Under the rule on opinions of ordinary witnesses, it is a standing doctrine that the opinion of a
witness is admissible in evidence on ordinary matters known to all men of common perception.[545]
People v. Tuyor,[546] sufficient familiarity with a doctor’s signature was established when a colleague
testified that both of them work at the Philippine General Hospital and the colleague affirmed on the
witness stand that she saw the physician sign the medico-legal report.
In People v. CCC,[547] while the mother can testify on her familiarity with the handwriting of her
daughter as an ordinary witness under Sec. 53, Rule 130, as amended, based on the letter which
apparently accused the father of rape, the characterization on the letter that the father was a
“‘MANYAK’ and the allusion that “7 Bises NiYA iYON GINAWA SA Akin SIMULA NG NAMATAY SI LOLA”
did not necessarily mean that the victim’s father raped her. Such depiction may pertain to other acts
which are lascivious that do not necessarily constitute rape. Absent any other viable evidence, borne of
the striking out of the victim’s testimony for want of cross-examination, absolution from the charge
was the logical outcome.
In the same manner, the mother of an offended party in a rape case, though not a psychiatrist, if she
knows the physical and mental condition of the party, how she was born, what she is suffering from,
and what her attainments are, is competent to testify on the matter.[548]
O. Character Evidence
Character refers to an aspect of an individual’s personality that is usually described in evidentiary law as a
“propensity” while habit is the tendency of a person to exhibit a regular response to a specific stimulus.
[549]
Reputation is what the community at large thinks of the person.[550]
As amended, Sec. 54, Rule 130 was merely a rewording of the previous Sec. 51, Rule 130, [551] and the new
rule incorporated Rule 405 of the Federal Rules of Evidence under the last paragraph of Sec. 54, Rule 130 on
how admissible character evidence can be established by (1) reputation, (2) opinion, or (3) specific conduct.
Under the last paragraph of Sec. 54 of the Rule, character is “in issue” when it is an essential element of a
crime, claim or defense. For instance, actions for libel and slander are cases in which character is in issue.[552]
The rule is that the character or reputation of a party is regarded as legally irrelevant in determining a
controversy, so that evidence relating thereto is not admissible. Ordinarily, if the issues in the case were
allowed to be influenced by evidence of the character or reputation of the parties, the trial would be apt to
have the aspects of a popularity contest rather than a factual inquiry into the merits of the case. After all, the
business of the court is to try the case, and not the man; and a very bad man may have a righteous cause.[553]
1. Summary
Mr. Justice Regalado’s synthesis of parameters for character evidence under the 1989 Rules
on Evidence is apt:[554]
a. In criminal cases, the prosecution may not at the outset prove the bad moral character of the
accused which is pertinent to the moral trait involved in the offense charged. If the accused,
however, in his or her defense attempts to prove his or her good moral character then the
prosecution can introduce evidence of such bad moral character at the rebuttal stage.
b. Also in criminal cases, the good or bad moral character of the offended party may always be
proved by either party as long as such evidence tends to establish the probability or
improbability of the offense charged.
c. In civil cases, the moral character of either party thereto cannot be proved unless it is
pertinent to the issue of character involved in the case.
d. In both civil and criminal cases, the bad moral character of a witness may always be proved
by either party (Sec. 11, Rule 132), but not evidence of his or her good character, unless it has
been impeached. (Sec. 14, Rule 132, transposed to Sec. 54, Rule 130, as amended.)
Settled is the principle that evidence of one’s character or reputation must be confined to a time not
too remote from the time in question. [555] What is to be determined is the character or reputation of
the person at the time of the trial and prior thereto, but not at a period remote from the
commencement of the suit. Hence, to say that credibility is diminished by proofs of tarnished
reputation existing almost a decade ago is unreasonable. It is unfair to presume that a person who has
wandered from the path of moral righteousness can never retrace his steps again. Certainly, every
person is capable to change or reform.[556]
Verily, the fact that a witness has been arrested, charged with or prosecuted for a criminal offense, or
confined in jail will not necessarily impair one’s credibility since: “(a) a mere unproven charge against
the witness does not logically tend to affect his credibility, (b) that innocent persons are often arrested
or accused of a crime, (c) that one accused of a crime is presumed to be innocent until his or her guilt
is legally established, and (d) that a witness may not be impeached or discredited by evidence of
particular acts of misconduct.”[557]
IV.
(RULE 131 – BURDEN OF PROOF, BURDEN OF EVIDENCE AND PRESUMPTIONS)
A simple attempt to differentiate onus probandi from onus evidentiae[558] was relayed by Professor Cleary to
the effect that the burden of proof or of persuading the trier of fact that the alleged fact is true as the risk of
non-persuasion,[559] while burden of evidence is the risk of non-production of evidence or the duty of going
forward with the evidence.[560]
In Frabelle Properties Corporation v. AC Enterprises, Inc.,[561] the Supreme Court took cognizance of the
distinction between burden of proof and burden of evidence, now embodied in Sec. 1, Rule 131, as amended,
in the process of denying a complaint for abatement of nuisance initiated by the developer of a condominium
building borne of noise emitted from blowers and hot air of air-condition units installed in an adjacent
building in Legaspi Village, Makati:
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.
A. Changes
As envisioned by the Rules Committee, burden of evidence was included in Sec. 1, Rule 131, as amended, to
distinguish it from burden of proof. In the opinion of the members, there is a need to clarify these two related
but different concepts and to expressly provide, following settled jurisprudence, that the burden of proof
never shifts but the burden of evidence shifts from party to party depending on the exigencies of the trial.
[562]
As thus defined, burden of evidence, which is also known as the “burden of production” or the “burden of
going forward,” simply means that if a party bears the burden of evidence with respect to a particular fact in
issue, he must come forward with some evidence that the said fact exists; otherwise, the court will decide
against him on that issue as a matter of law.[563]
B. Common Feature
A common denominator between burden of proof and burden of evidence lies on the existence of a factual
issue raised by a party. But one’s burden can still exist despite the absence of a factual issue in some
instances, such as: default, given the alternative court directive for the proponent to prove the case
notwithstanding the absence of an Answer, [564] or in nullity, annulment of marriage or legal separation, where
the material facts alleged in the Complaint shall always be proved.[565]
In Fairland Knitcraft Corporation v. Po,[566] the absence of an Answer in a civil case under Rule 70 and
covered by summary procedure does not imply a duty to discharge the plaintiff’s burden. According to Justice
Mendoza, “The failure of the defendant to timely file his answer and to controvert the claim against him
constitutes his acquiescence to every allegation stated in the complaint. Logically, there is nothing to be done
in this situation except to render judgment as may be warranted by the facts alleged in the complaint.”[567]
C. Principles in Civil and Criminal Cases
1. Affirmative Allegation
In both civil and criminal cases, the burden of evidence lies with the party who asserts an affirmative
allegation. Thus, the plaintiff has to prove his or her affirmative allegations in the complaint and the
defendant has to prove the affirmative allegations in his or her counterclaim and his or her affirmative
defenses. In criminal cases, the prosecution has to prove its affirmative allegations in the indictment
regarding the elements of the crime, as well as the attendant circumstances; while the defense has to
prove its affirmative allegations regarding the existence of justifying or exempting circumstances,
absolutory causes or mitigating circumstances.
2. Negative Allegation
In both civil and criminal cases, negative allegations do not have to be proved except where such
negative allegations are essential parts of the cause of action or defense in a civil case, or are essential
ingredients of the offense in a criminal case or the defenses thereto. Thus, in a civil case for breach of
contract, the plaintiff has to prove the fact that the defendant did not comply with his or her obligation
thereunder as, although this is a negative allegation, it is an essential element of the plaintiff’s cause of
action. In a criminal case for illegal possession of firearms, the prosecution has to prove the absence of
a license therefor.[568]
D. Jurisprudence
1. Civil Case
To reiterate, in civil cases, the burden of proof rests upon the plaintiff, who is required to establish
his or her case by a preponderance of evidence.[569]
Generally, the party who denies has no burden to prove. In civil cases, the burden of proof is on the
party who would be defeated if no evidence is given on either side. The burden of proof is on the
plaintiff if the defendant denies the factual allegations of the complaint in the manner required by the
Rules of Court, but it may rest on the defendant if he or she admits expressly or impliedly the essential
allegations but raises affirmative defense or defenses, which if proved, will exculpate him or her from
liability.[570]
Reyes v. Manalo, et al.[571] reiterated a basic postulate in evidence law that “mere allegation is not
evidence and is not equivalent to proof” in the course of resolving the possible eviction of informal
settlers on the subject property, premised on the theory of tolerance, which assertion was not
sufficiently averred and proved by the proponent of the suit for desahucio.[572]
2. Criminal Case
The rule in criminal proceedings is clear; it is the burden of the prosecution to present evidence to
prove the guilt of the accused beyond reasonable doubt. The accused need not present evidence to
prove his defense.[573]
Where petitioner was deprived of participation during preliminary investigation, through service of
subpoena at the correct address, Palacios v. People[574] made it clear that “[w]hen service of notice is an
 issue, the rule is that the person alleging that the notice was served must prove the fact of service. The
burden of proving notice rests upon the party asserting its existence.”
To the charge of illegal possession of shabu, a defendant’s inability to produce the authority or
license therefor can be prejudicial per People v. Dela Peña and Delima[575] which reiterated the rule that
“x x x [i]t is not incumbent upon the prosecution to adduce positive evidence to support a negative
averment the truth of which is fairly indicated by established circumstances and which, if untrue,
could readily be disproved by the production of documents or other evidence within the defendant’s
knowledge or control.”
In People v. XXX,[576] what constrained the Supreme Court to exonerate the accused of two charges of
the supposed rape were several inconsistencies in the testimony of the alleged victim of rape, and her
mother, inclusive of statements from an impartial witness about the romantic gestures between the
complainant and the accused, plus these pieces of evidence, viz.: “1) a 2x2 picture from AAA with her
handwritten note: “This picture is for you so keep this as a simple remembrance from me, [AAA];” 2)
AAA’s message written on a Jollibee table napkin: “Pa, Napakaswerte mong lalake ikaw ang nakauna sa
akin. Love, [AAA];” and 3) appellant even left an engagement ring and cash with BBB to be given
to AAA.”[577]
3. Labor Case
There can be no case for illegal termination of employment when there was no termination by the
employer. While, in illegal termination cases, the burden is upon the employer to show just cause for
termination of employment, such a burden arises only if the complaining employee has shown, by
substantial evidence, the fact of termination by the employer.[578]
4. Administrative Case
Non-compliance with the bidding procedures under Rep. Act No. 9184 partakes of a negative
allegation. Negative allegations need not be proved even if essential to one’s cause of action or defense
if they constitute a denial of the existence of a document the custody of which belongs to the other
party.[579] In De Guzman, the lack of official documents proving compliance with the bidding
requirements constitutes the substantial evidence that sufficiently establishes liability for
grave misconduct.
E. Presumption
A presumption is an inference of the existence or non-existence of a fact which courts are permitted to draw
from the proof of other facts.[580] In addition to judicial notice and a judicial admission under Rule 129, a
presumption can also displace the necessity for evidence but the proponent still has to introduce evidence of
the basis of the presumption, that is, he or she has to introduce evidence of the existence or non-existence of
the facts from which the court can draw the inference of the fact in issue. In the case of judicial notice and
judicial admissions, as a rule, the proponent does not have to introduce any evidence.[581]
It is an inference as to the existence of a fact not actually known, arising from its usual connection with
another which is known.[582] If a presumption is based on a fact, it cannot arise from a mere inference or from
another presumption.[583]
An inference is one which a judge or jury is required to draw from certain facts which have been proved or
admitted.[584]
F. Presumptions Under the Previous and Current Rule 131
For conclusive presumptions under Sec. 2, Rule 131, there was retention of the concept of estoppel and the
landlord-tenant relationship and gender inclusivity was integrated, which observations also apply to the
disputable presumptions enumerated under Sec. 3, Rule 131 from (a) up to (kk).
G. Addendum to Rule 131
Sec. 5[585] and Sec. 6,[586] Rule 131, as amended, introduced the concept of colliding presumptions in civil
cases, and application of a presumption against the accused in a criminal case, respectively.
According to the Rules Committee, Sec. 5, Rule 131 was lifted from Rule 301 of the Federal Rules
of Evidence and it was restricted to the burden of evidence, or the duty of going forward with the evidence.
On the other hand, Sec. 6, Rule 131 was “x x x 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.”[587]
In regard to the new provision in Sec. 5, Rule 131, Republic v. Sereno[588] portrayed a party’s onus as against
the other party’s burden of evidence by underscoring the idea that a certification from the official custodian
that no SALN is on file with the custodian’s office constitutes prima facie evidence of non-filing of the SALN.
That Certification will suffice for one’s onus and it shifts the burden of evidence to the government employee
to prove otherwise.
 As to Sec. 6, Rule 131, as amended, Fajardo v. People[589] typified the net effect of the prima facie evidence of
malversation in Art. 217 of the Revised Penal Code upon the accountable public officer’s inability to account
for public funds in her custody following a spot audit on her account, and despite demand therefor.
V.
(RULE 132 – PRESENTATION OF EVIDENCE)
A. Changes
A comparison of the previous and the current Rule 132 of the Revised Rules on Evidence disclosed these
changes:
1. Gender inclusivity;
2. Integration or modification of provisions on:
a. Impeachment by evidence of conviction of crime;[590]
b. Exclusion and separation of witnesses;[591]
c. Public documents, which incorporated documents considered public documents under treaties
and conventions between the Philippines and the country of source;[592]
d. Proof of private documents through introduction of other evidence showing its due execution and
authenticity;[593]
e. Proof of public documents relative to Sec. 19(c), Rule 132;[594]
f. Oral offer and oral objection;[595] and

g. Striking out answer;[596]

B. Duty to Testify
In Quarto v. Marcelo, et al.,[597] the Supreme Court discussed the State’s coercive power for extracting
testimony, in conjunction with the right against self- incrimination of an individual, and immunity statutes, as
constraints to the obligation to testify.
C. In-court Testimony Under Oath, Preferred
Sec. 1, Rule 132, as amended, provides the manner in which a witness may testify in court. The usual
method of examining witnesses and securing their testimony is by oral questions and answers in open court
after such witness has been duly sworn. [598] A witness must appear and orally testify before the court “to
secure for the adverse party the opportunity of cross-examination x x x,” [599] which principle was applied by
the Supreme Court in Go v. People when it nullified the court of origin’s order for the deposition taking of a
prosecution witness from Cambodia for the criminal case pending before the Philippines, in view of the
specific rule on conditional examination of a prosecution witness under Sec. 15, Rule 119.
Indeed, depositions are not “x x x generally meant to be a substitute for the actual testimony in open court
of a party or a witness x x x.”[600]
Citing Patula v. People,[601] Ching, et al. v. Quezon City Sports Club, Inc., et al.[602] reiterated that to require all
witnesses in a judicial trial or hearing to testify under oath and subject to cross-examination by the adverse
party are the two solutions under the Rules of Court for addressing the problem of hearsay and right of cross-
examination.
D. Exceptions to Oral Testimony
1. Incapacity of witness to speak, such as a deaf and dumb witness;[603]
2. Deposition pending action in civil cases;[604]
3. Deposition in a criminal case;[605]
4. Conditional examination of a defense witness in a criminal case;[606]
5. Videoconference technology as remote appearance of a person deprived of liberty [PDL];[607]
In this regard, videoconference was utilized by lawyers to contact some fisherfolk-petitioners
in Abogado, et al. v. DENR, et al.[608] for the purpose of withdrawal of a Petition for issuance of writs
of kalikasan and continuing mandamus.
6. Extradition cases when the accused requests the court for a hearing in chamber;[609]
7. A civil case covered by the rule on summary procedure;[610]
E. One-day Examination of Witness Rule and Most Important Witness Rule[611]
As early as 2004, the Guidelines to be observed by trial court judges during pre-trial conference and use of
deposition discovery procedures referred to the One-Day Examination of Witness Rule, [612] that is, a witness
has to be fully examined in one (1) day only, and it shall be strictly adhered to subject to the courts’ discretion
during trial on whether or not to extend the direct and/or cross-examination for justifiable reasons.
Also, the judge must determine the most important witnesses to be heard and limit the number of witnesses
(Most Important Witness Rule). The facts to be proven by each witness and the approximate number of hours
per witness shall be fixed.[613]
F. Order and Scope of Examination of an Individual Witness
The sequential order and scope in the presentation of a witness through counsel were retained in the
counterpart provisions under Secs. 4 to 9, Rule 132 of the current rules on evidence, viz.: a) direct
examination, b) cross-examination, c) re-direct examination,[614] d) re-cross examination[615] and e) recall,
[616]
except for the scope of the cross-examination which was restricted “on any relevant matter” [617] pursuant
to the English Rule, or the wide-open rule, as against the American rule or the scope-of-direct-rule.
However, on proper objection and based on the American rule on the scope of cross-examination, the
accused, a hostile or unwilling witness, and the adverse witness can only be examined on matters stated
during the direct examination.[618]
G. Duty of the Judge to Intervene
People v. Zheng Bai Hui and Nelson Hong Ty [619] reiterated parameters on the authority of the judge to
intervene in the examination of a witness:
About the active part that the judge took in the trial, the court finds that said active part was for the
purpose of expediting the trial and directing the course thereof in accordance with the issues. While judges
should as much as possibly refrain from showing partiality to one party, it does not mean that a
trial judge should keep mum throughout the trial and allow parties that they desire, on issues which they
think are the important issues, when the former are improper and the latter, immaterial. If trials are to be
expedited, judges must take a leading part therein, by directing counsel to submit the evidence on the facts in
dispute, by asking clarifying questions and by showing an interest in a fast and fair trial. Judges are not mere
referees like those of a boxing bout, only to watch and decide the results of the game; they have as much
interest as counsel in the orderly and expeditious presentation of evidence, calling attention of counsel to
points at issues that are overlooked, directing them to ask questions that would elicit the facts on the issues
involved, clarifying ambiguous remarks by witnesses, etc. Unless they take an active part in trials in the above
form and manner, and allow counsel to ask questions, whether pertinent or impertinent, material or
immaterial, the speedy administration of justice which is the aim of the Government and of the people cannot
be attained. Counsel should, therefore, not resent any interest that the judge takes in the conduct of the trial,
they should be glad that a trial judge takes such interest and help in the determination of the truth.
H. Judicial Affidavit Rule
In order to reduce the time for completing testimonies of witnesses in litigation, the Supreme Court
promulgated the Judicial Affidavit Rule,[620] effective on January 1, 2013. It shall apply to:
1. All actions, proceedings, and incidents before all trial and appellate courts, investigating officers and
bodies authorized by the Supreme Court to receive evidence, including the IBP, special courts and
quasi-judicial bodies whose rules of procedure are subject to disapproval of the Supreme Court;[621]
2. All criminal actions where the maximum imposable penalty is not more than six (6) years, or up
to prision correccional, or irrespective of the penalty, if the accused agrees to the use of judicial
affidavits or with respect to the civil aspect of the action.[622]
Under the Rule, a judicial affidavit should be compliant in form and substance [623] and it shall: (1) take the
place of the witnesses’ direct testimonies, and (2) append documentary and object evidence with the
corresponding markings, to be submitted to the court at least five (5) days before [624] the pre-trial,
preliminary conference, or scheduled hearing as to motions and incidents.
Cross-examination of the witness is guaranteed by the Judicial Affidavit Rule subject to re-direct
examination, and the court actively participates in the examination of the witness. Oral offer of documentary
and object evidence, oral objection, and oral ruling will follow.[625]
On the discretion of the court to allow a belated judicial affidavit, submitted after four (4) days of delay, Say,
et al. v. Dizon[626] reiterated that “[c]ourts have the prerogative to relax procedural rules of even the most
mandatory character, mindful of the duty to reconcile both the need to speedily put an end to litigation and
the parties’ right to due process. In numerous cases, this Court has allowed liberal construction of the rules
when to do so would serve the demands of substantial justice and equity.”
Obviously, since the rule requires a valid reason for a belated submission of a judicial affidavit, [627] the
prosecution’s excuse – “for whatever reason” – cannot be considered sufficient to allow the belated
submission of the judicial affidavits, per Lim and People v. Lim.[628]
I. Revised Guidelines for Continuous Trial of Criminal Cases
 Effective September 1, 2017, the Revised Guidelines for Continuous Trial of Criminal Cases [629] prescribed
the form of testimony either by sworn statement, judicial affidavit, or oral testimony:
1. For First Level Courts, sworn statements submitted by the parties before the law enforcement or
peace officers, or in the absence thereof, judicial affidavits subject to additional direct and cross-
examination;
2. For Second Level Courts, Sandiganbayan and Court of Tax Appeals, sworn statements for witnesses:
(a) whose credibility is not dependent on demeanor, such as forensic chemist, medico-legal officers,
investigators, and the like, or (b) in criminal cases which are transactional in character, such as
falsification, malversation, estafa and other crimes where culpability or innocence is dependent on
documents.
An eyewitness account will require oral testimony,[630] and without prejudice to conditional examination of
a witness for the prosecution or the defense, and stipulations.[631]
J. Testimony Must be Complete and Accurate
For a viable testimony, testimonial evidence must be (a) complete and (b) accurate. Otherwise, based on the
doctrine of incomplete testimony, for want of, or partial cross-examination can substantially impair the direct
examination of a witness. On the other hand, inaccuracy in testimony can lead to impeachment.
K. Doctrine of Incomplete Testimony
Under the doctrine of incomplete testimony, as a rule of thumb, it is incompetent to use the direct
examination of the witness if inability to cross- examine is due to the fault of the proponent of the witness,
like the repeated postponement of the cross-examination at the request of the party’s witness in R Transport
Corporation v. Philhino Sales Corporation.[632]
To reiterate pertinent excerpt from Mr. Justice Regalado’s treatise:[633]
When cross-examination is not and cannot be done or completed due to causes attributable
to the party who offered the witness, the uncompleted testimony is thereby rendered
incompetent and should be stricken from the record.[634] Where, however, in a criminal case
the prosecution witness was extensively cross-examined on the essential elements of the
crime and what remained for further cross-examination was the matter of price or reward
which was treated therein as merely an aggravating circumstance, his or her failure to appear
for further cross-examination thereon will not warrant the striking out of his or her direct
examination, especially since further cross-examination could not be conducted due to the
subsequent death of said witness, a circumstance not attributable to the prosecution. [635] The
same rule was followed where the prosecution witness was extensively cross-examined on
the material points and thereafter failed to appear and could not be produced despite a
warrant for his or her arrest.[636]
L. Impeachment
Secs. 11 to 15, Rule 132, as amended, are the rules for impugning credibility of a witness.
1. Adverse Party
An adverse party’s witness under Sec. 11, Rule 132, as amended, can be impeached by contradictory
evidence, prior inconsistent statement, and evidence of bad character, but not evidence of particular
wrongful acts although it may be shown that the witness has been convicted of an offense.
2. Own Witness
As summary of Sec. 13, Rule 132, a party is not allowed to impeach one’s witness unless the witness
is declared by the court as hostile or unwilling. If hostility or unwillingness of the witness is
acknowledged by the court, impeachment can be based on prior inconsistent statement or
contradictory evidence under Sec. 14, Rule 132, provided there is laying of the predicate. No
impeachment can be based on bad character of an unwilling or hostile witness.
M. Additional Ground for Impeachment
A new ground for impeachment was introduced by the Rules Committee under Sec. 12, Rule 132 which
referred to evidence of final conviction of a crime where the penalty was in excess of one (1) year, or it
involved moral turpitude, irrespective of the penalty, unless final conviction was the subject of amnesty of
annulment of conviction.
This rule was partly patterned after Rule 609 of the Federal Rules of Evidence and the rule which forbids
reception of evidence of conviction that has been the subject of amnesty or annulment of conviction was “x x x
a recognition of the fact that amnesty or annulment of the conviction absolves one from committing the crime
altogether.” Amnesty, instead of absolute pardon, was used by the Sub-Committee since an absolute pardon
does not erase conviction.[637]
N. Authentication and Proof of Documents
 For presentation of evidence, documentary evidence is generally divided into (1) public and (2) private
writings,[638] or public and private documents in Sec. 19, Rule 132, as amended. [639] This difference in the
nature of the document will spell the necessity for authentication.
The function of authentication is to establish a connection between the evidence presented and the relevant
issues of the case.[640] In general, there must be an element of personal connection with a corporeal object.
[641]
Authentication requires the proponent of an item of evidence to answer the question: “Is this
the one?”[642]
O. Public Documents v. Private Documents
For the sake of convenience and trustworthiness, [643] and inasmuch as it is “self-authenticating,”[644] a public
document does not[645] require authentication while authentication is expected for admissibility of a private
document.[646]
Arreza v. Toyo, et al.[647] reiterated the rule that “x x x [t]he requirement of authentication of a private
document is excused only in four instances, specifically: (a) when the document is an ancient one within the
context of Sec. 21, Rule 132 of the Rules of Court; (b) when the genuineness and authenticity of an actionable
document have not been specifically denied under oath by the adverse party; (c) when the genuineness and
authenticity of the document have been admitted; or (d) when the document is not being offered as genuine.”
Apart from the four instances mentioned in Arreza, authentication is also not required in these instances:
(1) If it is a public document in Sec. 19, Rule 132, as amended;
(2) If the document is not offered as authentic under the first paragraph of Sec. 20, Rule 132, or
precisely because it cannot be authenticated anyway under the last paragraph of Sec. 20, Rule 132,
such as an anonymous letter or a bomb threat, it “need only be identified as that which it is claimed
to be”;[648]
(3) If it is immaterial, such as proof of execution of a stolen document in theft;[649]
(4) If authentication is dispensed with by operation of law, such as introduction of the bounced
check, which is prima facie evidence of “making or issuance” of the check;[650]
(5) By authentication from the adverse party, where the reply of the adverse party refers to and
affirms the sending and receipt of the letter in question, a copy of which the proponent is offering in
evidence.[651]
P. Addendum to Public Documents
Sec. 19, Rule 132, as amended, which enumerated what are public documents, as opposed to private
documents, now incorporated in Item (c): “[d]ocuments that are considered public documents under
treatises and conventions which are in force between the Philippines and the court of source.” It was brought
about by treaties or conventions to which the Philippines is a party, such as the “Apostille Convention,”
effective May 14, 2019, which abolished the requirement of consularization for foreign public documents.[652]
Q. Proof of Public Documents
1. Official Records
For official records in Sec. 19(a), Rule 132, as amended, e.g., disbursement vouchers from the DPWH,
[653]
proof can consist of: (a) the original copy, (b) official publication, or (c) a certified true copy
attested by an officer having legal custody of the record.[654]
Once presented in its proper form, entries of public or official records shall be 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. [655] This clause means public
documents other than entries in public records made in the performance of a duty by a public officer,
and it includes notarial documents.[656]
On the disparity in probative value of public documents, Dadis v. Spouses De Guzman and Register of
Deeds of Talavera, Nueva Ecija[657] reiterated that “not all types of public documents are deemed prima
facie evidence of the facts therein stated. Although classified as a public document, a notarized
document is merely evidence of the fact which gave rise to their execution and of the date of the latter.
When the notarization is defective, the public character of the document is stripped off and it is
reduced to a mere private document that should be examined under the parameters of Sec. 20, Rule
132 of the Rules x x x.”
2. Notarial Documents
Documents acknowledged before a notary public, except last wills and testaments, in Sec. 19(b) and
Sec. 30, Rule 132, can be proved by a certificate of acknowledgment which shall be prima
facie evidence of the execution of the instrument or document involved.
Notarization of a document does not validate an instrument’s nature, and it is not conclusive as to the
nature of the transaction, nor of the true agreement of the parties.[658]
 To successfully challenge a notarized deed of sale, clear and convincing evidence from the parties to
the instrument is necessary to override the status of such public document, and evidence from non-
parties must be received with caution, per Sepe v. Heirs of Kilang.[659]
3. Public Record of Official Documents
For public records, kept in the Philippines, of private documents required by law to be entered
therein referred to in Sec. 19(d) and Sec. 27, Rule 132, e.g., a marriage contract or birth certificate, 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.
What is considered an authorized public document is not the private writing, but the public record
thereof. So, if a private writing itself is inserted officially into a public record, its recordation or
incorporation into the public record becomes public document, but that does not make the private
writing itself a public document so as to make it admissible without authentication.[660]
R. Additional Ground to Authenticate a Private Document
In Sec. 20, Rule 132, as amended, aside from proof of due execution and authenticity from (a) anyone who
saw the document executed or written, or (b) evidence of the genuineness of the signature or handwriting of
the maker, the third mode was introduced in letter (c), viz.: “[b]y other evidence showing its due execution
and authenticity.”
The incremental rule for authentication of a private document was designed to allow other modes of
authentication that may show, to the satisfaction of the judge, the authenticity of the private document, akin
to Sec. 2, Rule 5 of the Rule on Electronic Evidence allowing the authentication of an electronic document by
“other evidence showing its integrity and reliability to the satisfaction of the judge.” [661] The new rule was
illustrated by the doctrine of self-authentication, i.e., where the facts in the writing could only have been
known by the writer, or “replete with details.”[662]
S. Proof of Due Execution and Authenticity
Due execution and authenticity of a private document in Sec. 20, Rule 132, as amended, may be proved by
either:
(1) An eyewitness to the fact of execution,[663] or an instrumental witness;[664]
(2) The author;[665]
(3) An expert;[666]
(4) An ordinary witness, familiar with the signature based on familial or business relationship;[667]
(5) Comparison by the witness or the court of admittedly genuine signatures in Sec. 22, Rule 132;
(6) For an electronic document, by evidence of its integrity and reliability, plus the corresponding
affidavit;[668]
(7) Authentication by contents from the author, in the absence of handwriting testimony or other
evidence;[669] and
(8) Inability to contest an actionable document under Sec. 8, Rule 8, as amended.
T. Alteration in Document
Irrespective of the nature of the document, Sec. 31, Rule 132 of the Revised Rules on Evidence provides how
to present alteration in a document, and the party who relies on the document must account for the
alteration[670] during its introduction and not afterwards.[671]
U. Document in Unofficial Language
If a document written in an unofficial language is presented, it must be accompanied by a translation in
English or Filipino as required by Sec. 33, Rule 132, as amended. Otherwise, it will not be admitted when
offered in evidence.[672]
V. Offer, Objection, Ruling, Tender: Basic Rules
1. Admissibility of evidence is determined at the time of offer.[673]
Sec. 34 of Rule 132 of our Rules on Evidence provides that the court cannot consider any evidence
that has not been formally offered. Formal offer means that the offering party shall inform the court of
the purpose of introducing its exhibits into evidence, to assist the court in ruling on their admissibility
in case the adverse party objects. Without a formal offer of evidence, courts cannot take notice of this
evidence even if this has been previously marked and identified.[674]
Hence, any document or object that was marked for identification is not evidence unless it was
“formally offered and the opposing counsel [was] given an opportunity to object to it or cross-examine
the witness called upon to prove or identify it.”[675]
 A formal offer is necessary because judges are mandated to rest their findings of facts and their
judgment only and strictly upon the evidence offered by the parties at the trial. Its function is to enable
the trial judge to know the purpose or purposes for which the proponent is presenting the evidence.
[676]
On the other hand, this allows opposing parties to examine the evidence and object to its
admissibility. Moreover, it facilitates review as the appellate court will not be required to review
documents not previously scrutinized by the trial court.[677]
On the need for a specified purpose of the offer, it is basic in the law of evidence that the court shall
consider evidence solely for the purpose for which it was offered.[678]
Evidence can still be admissible despite absence of the offer when:
a) The evidence was identified and integrated in the record;[679]
b) The civil case is covered by summary procedure;[680]
c) The evidence is a common exhibit;[681] and
d) A joint hearing of allied cases is involved[682]
2. The time for offer of evidence is dependent on the type of evidence: Testimonial evidence is offered
at the time the witness is called to testify[683] while offer of documentary and object evidence is made
after the party’s testimonial evidence.[684]
3. Offer of, and objection to, evidence, must be specified[685] and orally made at the proper time.[686]
Objection to testimonial evidence for lack[687] of 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.[688]
Repetition of an objection to a class of questions is unnecessary since a continuing objection
will suffice.[689] Unlike the general rule for a specific objection,[690] a continuing objection does
not require a specified ground and a general objection will be sufficient.[691]
As to oral offer and oral objection, the new rule was akin to Secs. 6 and 8 of the Judicial
Affidavit Rule,[692] and the Rules Committee removed written offer altogether in accordance
with the rule on offer of evidence under the Revised Guidelines for Continuous Trial of Criminal
Cases.[693]
Grounds for objections not raised at the proper time shall be considered waived, even if the
evidence was objected to on some other ground. Thus, even on appeal, the appellate court may
not consider any other ground of objection, except those that were raised at the proper time.
[694]

Objections based on irrelevancy and immateriality need no specification or explanation.

Relevancy or materiality of evidence is a matter of logic, since it is determined simply by
ascertaining its logical connection to a fact in issue in the case.[695]
Objections to Evidence may be Formal or Substantive:[696]
1. Formal objections are based on the defective form of the question asked.
Examples:
a. Leading questions which suggest to the witness the answer desired.
(1) If counsel finds difficulty in avoiding leading questions, the judge may
suggest, to expedite proceedings, that counsel begin his questions with the
proper interrogative pronouns, such as “who,” “what,” “where,” “why,”
“how,” etc.
(2) Leading questions are allowed of a witness who cannot be reasonably
expected to be led by the examining counsel, as:
(a) On cross-examination;
(b) When the witness is unwilling or hostile, after it has been
demonstrated that the witness had shown unjustified reluctance to
testify or has an adverse interest or had misled the party into
calling him to the witness stand and, in either case, after having
been declared by the court to be indeed unwilling or hostile; or
(c) When the witness 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.
 (3) Leading questions may also be asked when there is difficulty
in getting direct and intelligible answers from a witness who is ignorant,
or a child of tender years, or is feeble-minded, or a deaf-mute.
(4) Leading questions may, moreover, be asked on preliminary
matters, i.e., on facts not in controversy, and offered only as basis for more
important testimony to follow. For example, “You are Mrs. Maria Morales,
wife of the plaintiff in this case?”
(5) Likewise, asking a question uses as a premise admitted facts or the
witness’ previous answer is not for that reason objectionable as leading.
b. Misleading questions, which assume as true a fact not testified to by the
witness (question has no basis), or contrary to that which he has
previously stated;
c. Double or multiple questions which are two or more queries in one. For
example, Q: “Did you see the defendant enter the plaintiff’s house, and was the
plaintiff there?”
d. Vague, ambiguous, indefinite, or uncertain questions — not allowed because
the witness cannot understand from the form of the question just what facts are
sought to be elicited.
e. Repetitious questions, or those already answered. However, on cross-
examination, the cross-examiner may ask a question already answered to test the
credibility of a witness.
f. Argumentative questions, which challenge a witness’ testimony by engaging
him in an argument, e.g., Q: “Isn’t it a fact Mr. Witness that nobody could possibly
see all the circumstances you mentioned in a span of merely two seconds, and that
either your observations are inaccurate or you are lying?”
2. Substantive objections are those based on the inadmissibility of the offered
evidence, e.g.:
a. Irrelevant, immaterial;
b. Best evidence rule;
c. Parol evidence rule;
d. Disqualification or witness;
e. Privileged communication;
f. Res inter alios acta;
g. Hearsay;
h. Opinion;
i. Evidence illegally obtained; and
j. Private document not authenticated.
To bar an immaterial question, the judge need not wait for an objection from the opposing
counsel since the judge should not stand idly by and allow the examining counsel to
propound endless questions that are clearly irrelevant, immaterial, improper or repetitious.
[697]

On the other hand, answers can be stricken off if:[698]

a) The witness responds immediately to the question without opportunity for the
adverse party to voice fully its objection;
b) The answer is not responsive;
c) The witness answers without any question posed;
d) The witness testifies beyond limits set by the court;
e) The witness narrates,[699] except a narrative from a child witness;[700] or
f) The answer is incompetent, irrelevant or improper.
If the tentative evidence was conditionally admitted under the doctrine of conditional
admissibility, the inability of a party’s counsel to connect the initial evidence with the
subsequent evidence can also be expunged from the record via a motion to strike out the
 initial and subsequent evidence.[701] If the motion to strike is not made, the objection to the
admission itself is regarded as waived.[702]
Objection to the introduction of evidence should be made before the question is answered.
When no such objection is made, a motion to strike out the answer ordinarily comes too late.
[703]

4. The court’s ruling on admissibility of evidence must be made orally after an objection, unless the
ruling is reserved by the court during trial in order to inform itself on the question presented. A ruling
need not specify the basis unless the court sustains an objection premised on two or more grounds.[704]
As corollary discussion to the rule that the offer must be specified, “x x x [i]t must be remembered
that the purpose for which evidence is offered must be specified because such evidence may be
admissible for several purposes under the doctrine of multiple admissibility, or may be admissible for
one purpose and not for another, otherwise the adverse party cannot interpose the proper objection.
Evidence submitted for one purpose may not be considered for any other purpose.”[705]
While trial courts have the discretion to admit or exclude evidence, such power is exercised only
when the evidence has been formally offered. For a long time, the Court has recognized that during the
early stages of the development of proof, it is impossible for a trial court judge to know with certainty
whether evidence is relevant or not, and thus the practice of excluding evidence on doubtful objections
to its materiality should be avoided.[706]
If the rules require a specific offer and specific objection, fairness dictates for the court to accept or
reject evidence only on the ground specified by the offeror or objector. To repeat, courts should
consider evidence only for the purpose for which it was offered[707] and the court is not at liberty to
reject evidence on a different ground not specified by the opposing party.[708]
5. A ruling to exclude oral, documentary, or real evidence can be rectified by a party through the
proper tender of excluded evidence.[709]
The rule is that evidence formally offered by a party may be admitted or excluded by the court. If a
party’s offered documentary or object evidence is excluded, he or she may move or request that it be
attached to form part of the records of the case. If the excluded evidence is oral, he or she may state for
the record the name and other personal circumstances of the witness and the substance of the
proposed testimony. These procedures are known as offer of proof or tender of excluded evidence and
are made for purposes of appeal. If an adverse judgment is eventually rendered against the offeror, he
or she may in his or her appeal assign as error the rejection of the excluded evidence x x x. It has been
repeatedly ruled that where documentary evidence was rejected by the lower court and the offeror
did not move that the same be attached to the record, the same cannot be considered by the appellate
court, as documents forming no part of proofs before the appellate court cannot be considered in
disposing the case. For the appellate court to consider as evidence, which was not offered by one party
at all during the proceedings below, would infringe the constitutional right of the adverse party – in
this case, the CIR, to due process of law.[710]
If the prosecution has chosen not to present a witness listed in the information, which the defense
believes to be important to its case, it should insist that the witness be presented by the prosecution
and if the latter refuses, the defense may make a tender of excluded evidence by stating for the record
the personal circumstances of the witness and his or her testimony which he or she expects from him
or her, or call the witness to the witness stand by means of a subpoena as its own witness.[711]
VI.
(RULE 133 – WEIGHT AND SUFFICIENCY OF EVIDENCE)
A. Admissibility is Distinct from Weight
It must be stressed that admissibility of evidence should not be confused with its probative value.
Admissibility refers to the question of whether certain pieces of evidence are to be considered at all, while
probative value refers to the question of whether the admitted evidence proves an issue. Thus, a particular
item of evidence may be admissible, but its evidentiary weight depends on judicial evaluation within the
guidelines provided by the rules of evidence.[712]
B. Layers of Evidence
In the hierarchy of evidentiary values, proof beyond reasonable doubt [713] is placed at the highest level,
followed by clear and convincing evidence, [714] preponderance of evidence,[715] and substantial evidence,[716] in
that order.[717]
[W]here the evidence on an issue of fact is in equipoise or there is doubt on which side the evidence
preponderates, the party having the burden of proof loses. The equipoise rule finds application if the
inculpatory facts and circumstances are capable of two or more explanations, one of which is consistent with
the innocence of the accused and the other consistent with his or her guilt, for then the evidence does not
fulfill the test of moral certainty, and does not suffice to produce a conviction. Briefly stated, the needed
quantum of proof to convict the accused of the crime charged is found lacking.[718]
C. Extrajudicial Confession Requires Corpus Delicti
Relative to Sec. 33, Rule 130, as amended, on the effect of an extrajudicial confession, Rule 133, Sec. 3 of the
Rules of Court provides that an extrajudicial confession shall not be a sufficient ground for conviction, unless
corroborated by evidence of corpus delicti.[719] What Sec. 3, Rule 133 simply means is that there should be
some evidence tending to show the commission of the crime apart from the confession. [720] Direct or
circumstantial evidence can prove corpus delicti.[721]
Associated with the essential elements of the crime, the term “corpus delicti” means the “body or substance
of the crime and, in its primary sense, refers to the fact that the crime has been actually committed.” Its
elements are: (a) that a certain result has been proved (e.g., a man has died); and (b) that some person is
criminally responsible for the act. In the crime of illegal possession of firearms, the corpus delicti is the
accused’s lack of license or permit to possess or carry the firearm, as possession itself is not prohibited by
law. To establish the corpus delicti, the prosecution has the burden of proving that the firearm exists and that
the accused who owned or possessed it does not have the corresponding license or permit to possess or carry
the same. However, even if the existence of the firearm must be established, the firearm itself need not be
presented as evidence for it may be established by testimony, even without the presentation of the said
firearm.[722]
In cases involving dangerous drugs, the State bears not only the burden of proving these elements, but also
of proving the corpus delicti or the body of the crime. In drug cases, the dangerous drug itself is the
very corpus delicti of the violation of the law.[723]
D. Circumstantial Evidence
Apart from the elements of circumstantial evidence in Sec. 4, Rule 133, [724] the last paragraph of the rule that
inferences cannot be based on other inferences was “[b]ased on People v. Austria, et al.[725] where the
Supreme Court ruled 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.”[726]
The lack or absence of direct evidence does not necessarily mean that the guilt of the accused cannot be
proved by evidence other than direct evidence. Direct evidence is not the sole means of establishing guilt
beyond reasonable doubt, because circumstantial evidence, if sufficient, can supplant the absence of direct
evidence. The crime charged may also be proved by circumstantial evidence, sometimes referred to as
indirect or presumptive evidence. Circumstantial evidence has been defined as that which “goes to prove a
fact or series of facts other than the facts in issue, which, if proved, may tend by inference to establish a fact in
issue.”[727]
E. Weight of an Expert Witness’ Opinion
Sec. 52, Rule 130, as amended, referred to the rule of the expert witness, and in ascertaining the intrinsic
worth of an expert witness’ opinion, the new Sec. 5, Rule 133 enumerated factors, based largely on the judge’s
discretion, viz.: (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, derived from Rule 702 of the Federal Rules of Evidence, would serve the judge’s need
for an explicit guide in discharging the task of determining the weight to be given to the opinion of an expert
witness.[728]