RULE 128

GENERAL PROVISIONS

Evidence – it is the means, sanctioned by these [R]ules, of ascertaining in a judicial

proceeding the truth respecting a matter of fact.

Factum Probandum – It is the fact to be proved.

Factum Probans – it is the evidentiary facts by which the factum probandum will
be proved.

Scope/Application of Rules of Evidence

General Rule: It shall be the same in all courts and in all trials and hearings
Exception: if otherwise provided by law or rule

RULE 129
WHAT NEED NOT BE PROVED

When is evidence admissible?

When it is:
1. relevant to the issue, and
2. not excluded by the Constitution, the law or the Rules

Relevancy - must have such a relation to the fact in issue as to induce belief in its
existence or non-existence.

Matters that need not be proved:

1. Judicial Notice
2. Judicial Admissions

When is Judicial Notice mandatory?

On matters involving the following:
1. Existence and territorial extent of states,
2. their political history,
3. forms of government and symbols of nationality,
4. the law of nations,
5. the admiralty and maritime courts of the world and their seals,
6. the political constitution and history of the Philippines,
7. official acts of the legislative, executive and judicial departments of the National
Government of the Philippines,
8. the laws of nature,
9. the measure of time, and
10. the geographical divisions,

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When is Judicial Notice discretionary?
On matters which are:
1. Of public knowledge,
2. Capable of unquestionable demonstration, or
3. Ought to be known to judges because of their judicial functions.

Judicial Admission - an admission, oral or written, made by the party in the course of
the proceedings in the same case.

How The admission may be contradicted?

only by showing that:
1. it was made through palpable mistake or
2. that the imputed admission was not, in fact, made.

HEIRARCHY OF COURTS

First Level
• Municipal Trial Court (MTC)
• Municipal Circuit Trial Court (MCTC)
• Municipal Trial Court in Cities (MTCC)
• Metropolitan Trial Court (MeTC)
(If the penalty does not exceed 6years except drug cases under RA 9165, and
those cases involving children)

Second Level
• Regional Trial Court (More than 6 years, RTC)

Third Level
• Court of Appeals – appellate court
• Sandiganbayan – special court to try criminal cases involving graft and corrupt
practices (SG 27)
• Court of Tax Appeals – appellate court for tax cases

Fourth Level
• Supreme Court – collegiate court of last resort / the highest court of the land

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 RULE 130
RULES OF ADMISSIBILITY

A. OBJECT (REAL) EVIDENCE

What is object evidence?

Objects as evidence are those addressed to the senses of the court. When an object is
relevant to the fact in issue, it may be exhibited to, examined or viewed by the court. (Sec.
1)

B. DOCUMENTARY EVIDENCE

What is Documentary Evidence?

Documents as evidence consist of writings, recording, photographs or any material
containing letters, words, sounds, numbers, figures, symbols, or their equivalent, or other
modes of written expressions offered as proof of their contents. Photographs include still
pictures, drawings, stored images, x-ray films, motion pictures or videos (Sec. 2).

May a private document be offered and admitted in evidence both as documentary

evidence and as object evidence?
Yes, a private document may be offered and admitted in evidence both as documentary
evidence and as object evidence depending on the purpose for which the document is
offered. If offered to prove its existence, condition or for any purpose other than the
contents of a document, the same is considered as object evidence. When the private
document is offered as proof of its contents, the same is considered as documentary
evidence (Sec. 1-2).

What is the Original Document Rule?

The original document rule provides that 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 (Sec. 3).

The rule is not absolute and admits of the following exceptions:

1. When the original is lost or destroyed, or cannot be produced in court,
without bad faith on the part of the offeror;
2. 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
and procedures;
3. 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;
4. When the original is a public record in the custody of a public officer or is
recorded in a public office; and
5. When the original is not closely-related to the controlling issue. (Sec. 3)

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NOTE: Secondary evidence is admissible when the original documents were actually lost
or destroyed.

But prior to the introduction of such secondary evidence, the proponent must establish
the former existence of the document. The correct order of proof is as follows: existence,
execution, loss, contents. The order may be changed if necessary, at the discretion of the
court (Lazatin v. Campos, G.R. No. L-43955-56, July 30, 1979).

What is an Original Document?

It 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”
(Sec. 4(a)).

What is a Duplicate?
It 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 (Sec. 4(b)).

Are Duplicates admissible in evidence?

Yes. A duplicate is admissible to the same extent as the original unless
1. 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 (Sec. 4(c)).

What is the Parol Evidence Rule?

The Parol Evidence Rule provides that when the terms of an agreement have been
reduced to writing, it is considered as containing all the terms agreed upon and there can
be, as between the parties and their successors in interest, no evidence of such terms
other than the contents of the written agreement.

However, by exception, a party may present evidence to modify, explain or add to the
terms of the written agreement if he puts in issue in a verified pleading:
a. an intrinsic ambiguity, mistake or imperfection in the written instrument;
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 (Sec. 10).

Should all documents be authenticated before it may be received in evidence?

• Private document - as a rule, it must be authenticated before it may be received in
evidence (Sec. 20).

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 • Public document - it is admissible in evidence even without further proof of their
due execution and genuineness (Salas v. Sta. Mesa Market Corp., G.R. No.
157766, July 12, 2007).

C. TESTIMONIAL EVIDENCE

What are the qualifications of witnesses?

All persons who can perceive, and perceiving, can make known their perception to others,
may be witnesses.

NOTE: 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.

What can the witness testify?

Testimony is confined to personal knowledge only. 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.

When can a witness be disqualified?

1. Disqualification by reason of marriage
2. Disqualification by reason of privileged communication[s]
a. Between husband and wife, during or after the marriage,
b. Between attorney and the client
c. Between physician and patient
d. Between minister/priest and the affected person
e. A public officer as to communications made to him or her in official
confidence

What are the requisites of the rule on Marital Communication Privilege?

It has the following requisites:
a. the spouses must have been legally married;
b. the spouse against whom such evidence is being offered has not given his/her
consent to such testimony;
c. the privilege is claimed with regard to communication, oral or written, made
during the marriage;
d. said communication was made confidentially; and (e) the action or proceeding
where the privilege is claimed is not in a civil case by one against the other, or in
a criminal case for a crime committed

Is the Attorney-Client Privilege absolute?

No, it will not cover the examination of a fact acquired in his capacity as a lawyer in the
following cases:
1. if the services or advise of the lawyer were sought or obtained to enable or aid
anyone to commit or plan to commit what the client knew or reasonably should
have known to be a crime or fraud;

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 2. as to communication relevant to an issue between the parties who claim through
the same deceased client, regardless of whether the claims are by testate or an
intestate or by inter vivos transaction;
3. as to a communication relevant to an issue of breach of duty by a lawyer to his
client or by the client to his lawyer;
4. as to a communication relevant to an issue concerning an attested document to
which the lawyer is an attesting witness; or
5. as to a communication relevant to a matter of common interest between 2 or more
clients if the communication was made by any of them to a lawyer retained or
consulted in common, when offered in an action between any of the clients, unless
they have expressly agreed otherwise (Sec. 24(b)).

NOTE: The communication shall remain privileged, even in the hands of a third person
who may have obtained the information, provided that the original parties to the
communication took reasonable precaution to protect its confidentiality.

What is Parental and filial privilege?

No person shall be compelled to testify against his or her parents, other direct ascendants,
children or other direct descendants, except when such testimony is indispensable in a
crime against that person or by one parent against the other.

What is the principle of Res Inter Alios Acta Alteri Nocere Non Debet?
The principle of res inter alios acta alteri nocere non debet means that “things done
between strangers ought not to injure those who are not parties to them” (Dynamic
Signmaker Outdoor Advertising Services, Inc., et al. v. Potongan, G.R. No. 156589, June
27, 2005).

This rule provides that the rights of a party cannot be prejudiced by an act, declaration,
or omission of another. Consequently, an extrajudicial confession is binding only on the
confessant and not admissible against his or her co-accused because it is considered as
hearsay against them (People v. Cachuela, G.R. No. 191752, June 10, 2013).

The rule, however, admits of exceptions:

1. admission by co-partner or agent;
2. act or declaration of a joint owner, joint debtor, or other person jointly interested
with the party;
3. admission by conspirator;
4. admission by privies; and
5. admission by silence (Sec. 30-33).

What is the Propensity Rule?

The propensity rule is the second branch of the rule of res inter alios acta and applies to
both criminal and civil cases. It provides that evidence that one did or did not do a certain
thing at one time is not admissible in evidence to prove that he did or did not do the same
or similar thing at another time; but it may be received to prove a specific intent or

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knowledge, identity, plan, system, scheme, habit, custom, or usage, and the like (Sec.
35).

What is a 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 an oral or
written assertion or a non- verbal conduct of a person, if it is intended by him as an
assertion. Hearsay evidence is inadmissible except as otherwise provided in the Rules
(Sec. 37).

What statements are NOT considered hearsay?

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 or 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;

When is a declaration against interest admissible as an exception to the hearsay

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

However, a statement tending to expose the declarant to criminal liability and offered to
exculpate the accused is not admissible unless corroborating circumstances clearly
indicate the trustworthiness of the statement (ROC, Sec. 40).

What are the requisites for a statement to be admissible under res gestae?
For spontaneous exclamations, it is required that:
1. the principal act be a startling occurrence;
2. the statements were made before the declarant had the time to contrive or devise
a falsehood; and
3. the statements must concern the occurrence in question and its immediate
attending circumstances.
For verbal acts, it is required that:
1. the principal act to be characterized must be equivocal;
2. the equivocal act must be material to the issue;
3. the statement must accompany the equivocal act; and
4. the statements give a legal significance

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Is the opinion of a witness admissible in evidence?
As a general rule, it is not admissible. Witnesses must give the facts and not their
inferences, conclusions or opinions, except for the following:
1. Opinion of an Expert on a matter requiring special knowledge, skill, experience or
training which he is shown to possess may be received in evidence; or
2. Opinion of an ordinary witness for which proper basis is given, may be received
in evidence regarding:
a. The identity of a person about whom he has adequate knowledge;
b. A handwriting with which he has sufficient familiarity; and
c. The mental sanity of a person with whom he is sufficiently acquainted. The
witness may also testify on his impressions of the emotion, behavior,
condition or appearance of a person. (Sec. 51-53).

Is character evidence admissible?

As a general rule, evidence of a person’s character or trait of character is not admissible
for the purpose of proving action in conformity therewith on a particular occasion, except:
1. In Criminal Cases:
a. The character of the offended party may be proved if it tends to establish in
any reasonable degree the probability or improbability of the offense
charged.
b. The accused may prove his good moral character, pertinent to the moral
trait involved in the offense charged. The prosecution may not prove his bad
moral character unless on rebuttal.
2. In Civil Cases:
a. Evidence of the moral character of a party in a civil case is admissible only
when pertinent to the issue of character involved in the case.
3. In Criminal and Civil Cases:
a. Evidence of the good character of a witness is not admissible until such
character has been impeached. In all cases in which evidence of character
or a trait of character of a person is admissible, proof may be made by
testimony as to reputation or by testimony in the form of an opinion. On
cross-examination, inquiry is allowable into relevant specific instances of
conduct. In cases in which character or a trait of character of a person is an
essential element of a charge, claim or defense, proof may also be made of
specific instances of that person’s conduct (Sec. 54).

ADMISSIONS AND CONFESSIONS

• Admission of a party – The act, declaration or omission of a party as to a relevant

fact may be given in evidence against him or her.

• Admission by third party – The rights of a party cannot be prejudiced by an act,

declaration, or omission of another, except as hereinafter provided.

• Admission by conspirator – The act or declaration of a conspirator in furtherance

of the conspiracy and during its existence may be given in evidence against the

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 co-conspirator after the conspiracy is shown by evidence other than such act of
declaration.

• Admission by silence – An act or declaration made in the presence and within

the hearing or observation of a party who does or says nothing when the act or
declaration is such as naturally to call for action or comment if not true, and when
proper and possible for him or her to do so, may be given in evidence against him
or her.

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.

General Rule: Hearsay evidence is inadmissible except as otherwise provided in these

Rules.

Some Exceptions to the General Rule:

• Dying declaration – The declaration of a dying person, made under the
consciousness of an impending death, may be received in any case wherein his
or her death is the subject of inquiry, as evidence of the cause and surrounding
circumstances of such death.

• Part of the res gestae – Statements made by a person while a startling

occurrence is taking place or immediately prior or subsequent thereto, under the
stress of excitement caused by the occurrence with respect to the circumstances
thereof, may be given in evidence as part of the res gestae. So, also, statements
accompanying an equivocal act material to the issue, and giving it a legal
significance, may be received as part of the res gestae.

OPINION RULE

General rule – The opinion of a witness is not admissible.

Exception - Opinion of expert witness. – The opinion of a witness on a matter requiring
special knowledge, skill, experience, training or education, which he or she is shown to
possess, may be received in evidence.

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 RULE 131
BURDEN OF PROOF, BURDEN OF EVIDENCE AND PRESUMPTIONS

Burden of Proof and Burden of Evidence: Each party must present evidence to
establish their claim or defense.

The burden of proof never shifts, while the burden of evidence may shift depending on
the case's exigencies.

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.

While the burden of proof always lies with the prosecution in criminal proceedings,
the burden of evidence shifts when an affirmative defense is raised by the accused,
ie., self-defense in a homicide or murder case, or consensual sex in a rape charge.

Conclusive Presumptions: Certain facts are conclusively presumed true based on

deliberate actions or declarations, such as intentional misleading or a tenant's
acknowledgment of their landlord's title.

Disputable Presumptions: These presumptions are considered true if uncontradicted

but can be rebutted by evidence. Examples include innocence, lawful intent, regular
performance of official duty, and the regular course of business.

Some Disputable Presumptions under the Rules:

• That a person is innocent of crime or wrong;

• That an unlawful act was done with an unlawful intent;
• That a thing delivered by one to another belonged to the latter;
• That official duty has been regularly performed;
• That private transactions have been fair and regular;

• That if the marriage is terminated and the mother contracted another marriage
within three hundred [(300)] days after such termination of the former marriage,
these rules shall govern in the absence of proof to the contrary:
1. A child born before one hundred eighty (180) days after the solemnization of
the subsequent marriage is considered to have been conceived during [the
former] marriage, [provided] it be born within the three hundred [(300)] days
after the termination of the former marriage; and
2. A child born after one hundred eighty (180) days following the celebration of
the subsequent marriage is considered to have been conceived during such
marriage, even though it be born within the three hundred [(300)] days after the
termination of the former marriage.

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 • That except for purposes of succession, when two [(2)] persons perish in the same
calamity, such wreck, battle, or conflagration, and it is not shown who died first,
and there are no particular circumstances from which it can be inferred, the
survivorship is determined from the probabilities resulting from the strength and
the age of the sexes, according to the following rules:
1. If both were under the age of fifteen [(15)] years, the older is deemed to have
survived;
2. If both were above the age of sixty [(60)], the younger is deemed to have
survived;
3. If one is under fifteen [(15)] and the other above sixty [(60)], the former is
deemed to have survived;
4. If both be over fifteen [(15)] and under sixty [(60)], and the sex be different, the
male is deemed to have survived, if the sex be the same, the older; and
5. If one be under fifteen [(15)] or over sixty [(60)], and the other between those
ages, the latter is deemed to have survived;

No Presumption of Legitimacy or Illegitimacy: Children born after 300 days following

marriage dissolution or separation have no presumption of legitimacy or illegitimacy; it
must be proven.

Presumptions in Civil Actions and Proceedings: In civil cases, presumptions impose

a burden on the party against whom they're directed to provide evidence rebutting them.
If inconsistencies arise, the presumption based on weightier policy considerations
applies.

Presumption Against an Accused in Criminal Cases: If a presumed fact establishes

guilt or negates a defense, it must be proven beyond reasonable doubt, and the presumed
fact follows from the basic fact also beyond reasonable doubt.

RULE 132
PRESENTATION OF EVIDENCE

The examination of witnesses presented in a trial or hearing:

• shall be done in open court, and
• under oath or affirmation.

General rule: The answers of the witness shall be given orally.

Exception: Unless the witness is incapacitated to speak, or the question calls for a
different mode of answer.

Proceedings to be recorded
The entire proceedings of a trial or hearing, including the questions propounded to a
witness and his or her answers thereto, and the statements made by the judge or any of

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the parties, counsel, or witnesses with reference to the case, shall be recorded by means
of shorthand or stenotype or by other means of recording found suitable by the court.

Rights and obligations of a witness

Obligations of a witness
• A witness must answer questions, although his or her answer may tend to
establish a claim against him or her.
• A witness must answer to the fact of his or her previous final conviction for an
offense

Rights of a witness:
1. To be protected from irrelevant, improper, or insulting questions, and from harsh
or insulting demeanor;
2. Not to be detained longer than the interests of justice require;
3. Not to be examined except only as to matters pertinent to the issue;
4. Not to give an answer which will tend to subject him or her to a penalty for an
offense unless otherwise provided by law; or
5. Not to give an answer which will tend to degrade his or her reputation, unless it
be to the very fact at issue or to a fact from which the fact in issue would be
presumed.

Order in the examination of an individual witness

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

Direct examination – Direct examination is the examination-in-chief of a witness by the

party presenting him or her on the facts relevant to the issue.

Cross-examination – After direct examination, the witness may be cross-examined by

the adverse party.

Re-direct examination. – After the cross-examination of the witness has

been concluded, he or she may be re-examined by the party presenting him. On re-direct
examination, questions on matters not dealt with during the cross-examination may be
allowed by the court in its discretion.

Re-cross-examination. – Upon the conclusion of the re-direct examination, the adverse

party may re-cross-examine the witness on matters stated in his or her re-direct
examination.

Leading question - A question which suggests to the witness the answer which the
examining party desires.

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Misleading question - is one which assumes as true a fact not yet testified to by the
witness, or contrary to that which he or she has previously stated. It is not allowed.

General Rule: Leading questions is not allowed

Exceptions:
a. On cross-examination;
b. On preliminary matters;
c. When there is difficulty in getting direct and intelligible answers from a witness
who is ignorant, a child of tender years, is of feeble mind, or a deaf-mute;
d. Of an unwilling or hostile witness; or
e. Of a witness who is an adverse party or an officer, director, or managing agent of
a public or private corporation, or of a partnership or association which is an
adverse party.

Offer of evidence
• The court shall consider no evidence which has not been formally offered.
• The purpose for which the evidence is offered must be specified.

When to make offer:

Testimony of a witness in evidence – the offer must be made at the time the witness is
called to testify.

Documentary and object evidence – the offer shall be made after the presentation of a
party’s testimonial evidence.

Objection to offer of evidence:

• It must be made orally immediately after the offer is made.
• Objection to the testimony of a witness for lack of a formal offer must be made as
soon as the witness begins to testify.
• Objection to a question propounded in the course of the oral examination of a
witness must be made as soon as the grounds therefor become reasonably
apparent.
• The grounds for the objections must be specified.

Striking out of answer

• Should a witness answer the question before the adverse party had the
opportunity to voice fully its objection to the same, or
• where a question is not objectionable, but the answer is not responsive, or
• where a witness testifies without a question being posed or
• testifies beyond limits set by the court, or
• when the witness does a narration instead of answering the question,

If such objection is found to be meritorious, the court shall sustain the objection and
order such answer, testimony or narration to be stricken off the record.

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 On proper motion, the court may also order the striking out of answers which are
incompetent, irrelevant, or otherwise improper.

Tender of excluded evidence

If documents or things offered in evidence are excluded by the court, the offeror may
have the same attached to or made part of the record.

If the evidence excluded is oral, the offeror may state for the record the name and other
personal circumstances of the witness and the substance of the proposed testimony.

RULE 133
WEIGHT AND SUFFICIENCY OF EVIDENCE

Preponderance of evidence
• In civil cases, the party having the burden of proof must establish his or her case
by a preponderance of evidence.
• In determining where the preponderance or superior weight of evidence on the
issues involved lies, the court may consider all the facts and circumstances of the
case, the witnesses’ manner of testifying, their intelligence, their means and
opportunity of knowing the facts to which they are testifying, the nature of the facts
to which they testify, the probability or improbability of their testimony, their interest
or want of interest, and also their personal credibility so far as the same may
legitimately appear upon the trial. The court may also consider the number of
witnesses, though the preponderance is not necessarily with the greater number.

Proof beyond reasonable doubt

• In a criminal case, the accused is entitled to an acquittal, unless his or her guilt is
shown beyond reasonable doubt.
• Proof beyond reasonable doubt does not mean such a degree of proof as,
excluding possibility of error, produces absolute certainty. Moral certainty only is
required, or that degree of proof which produces conviction in an unprejudiced
mind.

Extrajudicial confession
• An extrajudicial confession made by an accused shall not be sufficient ground for
conviction, unless corroborated by evidence of corpus delicti.

Circumstantial evidence is sufficient for conviction if:

a. There is more than one [(1)] 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.

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Substantial evidence
• In cases filed before administrative or quasi-judicial bodies, a fact may be
deemed established if it is supported by substantial evidence, or that amount of
relevant evidence which a reasonable mind might accept as adequate to justify a
conclusion.

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