EVIDENCE

GENERAL PRINCIPLES

DEFINITION AND CONCEPT OF EVIDENCE

EVIDENCE is the means sanctioned by the Rules of Court, ascertaining in a judicial proceeding the truth respecting a matter of fact (Section 1, Rule 128 of the Rules of Court).

When Evidence is RequiredThere is a need for the introduction of evidence when the court has to resolve a question of fact.

When Evidence is NOT Required1. When no factual issue exists in a case or where the case presents only a question of law;2. When the pleadings in a civil case do not tender an issue of fact;3. When parties to the action have agreed upon/stipulated to the facts involved in the litigation (Section 6, Rule 30 of the Rules of Court); and4. On matters of judicial notice (Section 1 to 3, Section 129 of the Rules of Court); and5. On matters judicially admitted (Section 4, Rule 129 of the Rules of Court).

Waiver of the Rules of EvidenceGeneral Rule – The rules of evidence may be waived. When an otherwise objectionable evidence is not objected to, the evidence becomes admissible because of a waiver.

Exception – When the waiver amounts to a transgression of the law, principles of morality, good customs and public policy or when the rights of third persons are violated, then there can be no waiver.

SCOPE

Scope: Principle of Uniformity

General Rule - The rules of evidence shall be the same in all courts and in all trials and hearings

Exception – Except as provided by law or by the Rules of Court (Section 2, Rule 128 of the Rules of Court).

1. Naturalization Proceedings2. Insolvency Proceedings3. Cadastral Proceedings4. Land Registration Cases5. Election Cases6. Other cases as may be provided for by law(Section 4, Rule 1 of the Rules of Court)

ApplicabilityThe rules on evidence, being part of the Rules of Court, apply only to judicial proceedings.

While the definition of “evidence” under the Rules of Court makes reference only to judicial proceeding, the provisions of the Rules on Electronic Evidence apply to all civil actions and proceedings, as well as quasi-judicial and administrative cases (Section 2, Rule of the Rules on Electronic Evidence).

When ApplicableIt is applicable to both civil and criminal cases.

When NOT ApplicableIt does not apply to administrative or quasi-judicial proceedings as administrative bodies are not bound by the technical niceties of the rules obtaining in the court of law. [El Greco Ship Maning and Management Corporation vs Commissioner of Customs, G.R. No. 177188, December 4, 2008]

As evidence that they were being prevented from cultivating the land, the tenants presented affidavits but the affiants were not cross-examined. The Court held that the affidavits were admissible because in Agrarian cases, the Rules of Court are not applicable even in suppletory character. [Reyes vs. Court of Appeals, 216 SCRA 25]

EVIDENCE IN CIVIL CASES versus CRIMINAL CASES

CIVIL CASES CRIMINAL CASES

Attendance in Court

Parties attend by accord

The accused attends by compulsion

Presumption of Innocence

There is no presumption as to either

party

Presumption of innocence attends the accused throughout the trial until the same has been overcome by prima facie evidence of his guilt

Offer of Compromise (Section 27,

Rule 130)

An offer to compromise

does not, as a general rule, amount to an admission of

liability

An offer of compromise is an implied admission of guilt

Except:1. In cases involving quasi-offenses2. Those allowed by law to be compromised

Quantum of Proof

Must prove by preponderance of evidence: Reason is that there is no presumption and due to the fact that the proof will only result in a judgment of pecuniary

Guilt beyond reasonable

doubt

damages or establish civil right.

Withdrawal of Plea/

Admission

Judicial admission withdrawn becomes

extrajudicial admission

A plea of guilty later withdrawn or unaccepted offer of a plea of guilty to a lesser offense is not admissible in evidence against the accused who made the plea/offer

Circumstantial Evidence

Not applicable

Applicable only to

criminal cases (Section 4, Rule 133)

Doctor-Patient Privileged

CommunicationApplicable

Not Applicable

(Section 24(c), Rule 130)

Compulsion of Witness

A party or a defendant may be compelled to be a witness provided written interrogatories and request for admission have been served upon him. (Section 6, Rule 25 and Section 5, Rule 26)

The accused cannot be

compelled to testify

PROOF versus EVIDENCE

PROOF EVIDENCE

The result or the probative effect of evidence. When the requisite quantum of evidence of a particular fact has been duly admitted and given weight, the result is called the proof of such fact.

The medium or means by which a fact is

proved or disproved.

FACTUM PROBANS versus FACTUM PROBANDUM

FACTUM PROBANS FACTUM PROBANDUMThe probative or evidentiary fact tending to prove the fact in issue or the FACTUM PROBANDUM. It is the material evidencing the proposition.

The ultimate fact to be proved or proposition

to be established.

Factum probandum does not include matters of judicial notice, conclusive presumptions and judicial admissions as these matters need not be established or proven.ADMISSIBILITY OF EVIDENCERequisites for Admissibility of Evidence The Evidence MUST Be:

1. Relevant – Relevant to the issue2. Competent - Not excluded by the Rules

on Evidence, the law and the Constitution

These two elements correspond to the Two Axioms of Admissibility:1. Axiom of Relevancy - That none but facts having rational probative value are admissible. 2. Axiom of Competency - All facts having rational probative value are admissible unless some specific rule forbids their admission.

If in doubt as to admissibility of the testimony given in the court, the court should favor admissibility. Otherwise, if the trail court judge erred in ruling and excluded the same, the appeals court would be precluded from reversing the ruling and taking such testimony.

RELEVANCY; COLLATERAL MATTERS

RELEVANCY – Evidence is relevant if it has such a relation to the fact in issue as to induce belief in its existence or non-existence (Section 4, Rule 128 of the Rules of Court). The evidence adduced should be directed to the matters in dispute and any evidence which has neither direct nor indirect relationship to such matters must be set aside as irrelevant. This is determined by logic, common sense and human experience. The matter of relevance is one that is addressed to the discretion of the court. (RIANO, Evidence: The Bar Lecture Series (2013) p.19)

The components of RELEVANT Evidence are:1. MATERIAL – evidence offered upon a matter properly in issue. It is directed toward a fact within the range of allowable controversy.

2. PROBATIVE – Tendency of evidence to establish the proposition that it is offered to proveCOMPETENCY – Facts having rational probative value are admissible unless some rule or law forbids their admission. If a rule or law excludes the evidence, it is incompetent.

RULES OF EXCLUSION– governed by the Rules or by Statute

Examples:1. Section 201, Tax Reform Act of 1997: A document required by law to be stamped shall not be admitted or used in evidence until the requisite stamp are affixed thereto.

2. R.A. 1405, Law on Secrecy of Bank Deposits: All deposits of whatever nature are absolutely confidential and may not be examined, inquired, looked into except upon written permission of the depositor, or in cases of impeachment, or upon order of a competent court in cases of bribery or dereliction of duty of public officials or in cases where the money is the subject matter of litigation

3. R.A. 4200, Wire-Tapping Act: Any communication or spoken word or the existence, contents, substance or any information contained

therein secured in violation of the Act shall not be admissible in evidence in any judicial, quasi-judicial, legislative or administrative hearing or investigation.

4. R.A. 9372, Human Security Act - Any listened to, intercepted, and recorded communications, messages, conversations, discussions, or spoken or written words, or any part or parts thereof, or any information or fact contained therein, including their existence, content, substance, purport, effect, or meaning, which have been secured in violation of the pertinent provisions of this Act, shall absolutely not be admissible and usable as evidence against anybody in any judicial, quasi-judicial, legislative, or administrative investigation, inquiry, proceeding, or hearing.

5. R.A. 9745, Anti-Torture Act - Any confession, admission or statement obtained as a result of torture shall be inadmissible in evidence in any proceedings, except if the same is used as evidence against a person or persons accused of committing torture.

THE EXCLUSIONARY RULE – Commonly used for evidence excluded by the Constitution. It is applied to cases where the challenged evidence is quite clearly direct or primary in its relationship to the prior arrest or search. (Herrera , Remedial Law Vol V (1999) page 37)

Examples:1. Right against unreasonable search and seizures (Section 2, Art. III of the 1987 Constitution)2. Right to privacy of communication (Section 3, Art. III of the 1987 Constitution)3. Rights of the Accused under investigation (Section 12, Art. III of the 1987 Constitution)4. Right against self-incrimination (Section 17, Art III of the 1987 Constitution)

Admissibility of Electronic Documents An electronic document is admissible in evidence if it complies with the rules on admissibility prescribed by the Rules of Court and related laws and is authenticated in the manner prescribed by the Rules on Electronic Evidence (Section 2, Rule 3 of the Rules on Electronic Evidence).

Admissibility Distinguished from Weight of Evidence:

ADMISSIBILITY WEIGHTHas to do with whether the item of evidence meets the test of relevancy and competency so as to be admitted in evidence. It is an affair of logic (relevance) and law (competence).

Has to do with the effect of the evidence admitted or its tendency to convince and persuade the court. It depends on judicial evaluation.

The admissibility of the evidence depends on its relevance and competency, while the weight of evidence pertains to its tendency to convince and persuade. Tating v. Marcella, [G.R. No. 15508, March 27, 2007]

While evidence may be admissible, it may be entitled to little or no weight at all. Conversely, evidence which may have evidentiary weight may be inadmissible because a special rule forbids its inception. People v. Turco, [G.R. No. 137757, August 14, 2000]

COLLATERAL MATTERS – refers to matters other than the fact in issue. These are matters outside the controversy, or are not directly connected with the principal matter or issue in dispute, as indicated in the pleadings of the parties.

General Rule - Evidence on collateral matters is not allowed.

Exception - Evidence on collateral matters may be admitted if it tends in any reasonable degree to establish the probability or improbability of the fact in issue (Section 4, Rule 128 of the Rules of Court).

For instance, when a witness testifies having seen the killing of the victim by the accused, his testimony is direct evidence for it tends to prove the fact in issue without the aid of inference or presumption; but when he testifies to the conduct of the accused prior to the commission of the crime or immediately thereafter from which an

inference may be made as to the probability or improbability of the fact in issue, his testimony is circumstantial evidence for it tends to prove collateral matters which with the aid of inference may tend to establish that probability or improbability of the fact in issue. (Herrera, supra at 63 – 64)

Multiple AdmissibilityWhen a proffered evidence is admissible for two or more purposes. It may be admissible for one purpose but inadmissible for another or vice versa. It may also mean that it may be admissible against one party but not against another

Example: Admissions admissible against the declarant but not against his co-accused under the res inter alios acta rule.

Conditional AdmissibilityWhen a piece of evidence appears to be relevant as it is connected with other pieces of evidence not yet offered nr proved, such piece of evidence may be conditionally admitted subject to the condition that its relevancy and competency be established at a later time. If the condition is not met, the evidence should be rejected.

Example: In an action by A against B for recovery of a real property, plaintiff offered a document showing that the property belonged to X. On objection of the defendant upon the ground of irrelevancy, plaintiff stated that he would prove later by other evidence that X, the original owner sold the property to Y and the latter sold it to Z from whom plaintiff acquired title by purchase. The Court may admit the evidence conditionally until the other facts mentioned by plaintiff are proved. (Herrera, supra at 29)

Curative AdmissibilityWhen a party is allowed to present inadmissible evidence over the objection of the opposing party, such opposing party may be allowed to introduce otherwise inadmissible evidence to contradict the previously admitted inadmissible evidence and to remove any prejudice caused by its admission.

Example: At the trial, plaintiff testified that defendant is a man who never pays his debts as

shown by his refusal to pay his debts to other persons. This evidence is inadmissible but was admitted by mistake. In such case, in fairness to the defendant, the Court may allow him to explain his dealings with such other persons. (Herrera, supra at 26)

OTHER CLASSIFICATIONS OF EVIDENCE

a) Direct and Circumstantial Evidence

DIRECT EVIDENCE CIRCUMSTANTIAL EVIDENCE

That which proves the fact in dispute without the aid of any inference or presumption.

Evidence that indirectly proves a fact in issue through an inference which the fact finder draws from the evidence established.

Example: Witness saw the accused inflict a blow which caused the victim’s death

Example: Witness testified that he saw the accused with blood on his shirt and hands and running from the scene of the crime where the victim was lying dead. The next day, the accused was nowhere to be found in his place of residence. Taken altogether, inference of guilt can be drawn that the accused killed the victim.

Direct and circumstantial evidence are of the same probative value because no greater degree of certainty is required when the evidence is circumstantial than when it is direct.

b) Positive and Negative evidence

POSITIVE EVIDENCE NEGATIVE EVIDENCEWhen the witness affirms that a fact did or did not occur. Such evidence is entitled to greater weight since

When the witness states that an event did not occur or that the state of facts alleged to exist does not actually

the witness represents of his or her personal knowledge the presence or absence of a fact.

exist.

Example: X said he drank liquor. Y says X did not.

Note: They have the same weight because they are both positive. It is different from Y saying that he does not know that X drank liquor.

Example: Y said that he does not know that X drank liquor.

c) Competent and Credible Evidence

COMPETENT EVIDENCE CREDIBLE EVIDENCE

One that is not excluded by the Rules, statutes or Constitution.

When evidence is not only admissible evidence but is believable and used by the court in deciding a case.

Example: School teacher who passed by saw the accused shoot the victim. His testimony is credible. He is one who practices a noble profession and he is neutral witness.

d) Corroborative and Cumulative evidence

CORROBORATIVE EVIDENCE

CUMULATIVE EVIDENCE

Additional evidence of a different character to the same proposition tending to be supplementary in confirming or strengthening

Evidence of the same kind and character as that already given and that tends to prove the same proposition.

previously given evidence.Example: A witness to the signing of a contract testifies that he saw Party A sign the contract. The testimony of a handwriting expert stating that the signature appearing on the contract is the signature of A is corroborative evidence.

Example: Witness A testifies that she saw accused run out of the bank. The testimony of Witness B, who also testifies that he saw accused run out of the bank, is cumulative.

e) Prima facie and Conclusive evidence

PRIMA FACIE EVIDENCE CONCLUSIVE EVIDENCE

That which, standing alone, unexplained or uncontradicted, is sufficient to maintain the proposition affirmed.

The class of evidence which the law does not allow to be contradicted.

Example: Section 3, Rule 131 of the Rules of Court

Example: Section 2, Rule 131 of the Rules of Court

f) Primary and Secondary Evidence

PRIMARY EVIDENCE SECONDARY EVIDENCE

That which the law regards as affording the greatest certainty of the fact in question.

That which is inferior to the primary evidence and is permitted by law only when the best evidence is not available.

It is not, however, necessarily a rule of exclusion but merely affects the weight in evidence, and should be distinguished from the best evidence and secondary evidence rule under Sections 3 and

4, Rule 130 of the Revised Rules in Court. (Herrera, supra at 15)

g) Relevant and Material evidence

RELEVANT EVIDENCE MATERIAL EVIDENCE

Evidence having any value in reason as tending to prove any matter provable in an action. The test is the logical relation of the evidentiary fact to the fact in issue, whether the former tends to establish the probability or improbability of the latter.

It is evidence that is RELEVANT and COMPETENT.

Evidence directed to prove a fact in issue as determined by the rules of substantive law and pleadings. The test is whether the fact it tends to prove is an issue or not. As to whether a fact is in issue or not is in turn determined by the substantive law, the pleadings, the pre-trial order and by the admissions or confessions on file. Consequently, evidence may be relevant but may be immaterial in the case.

The definition of Relevancy in the Rules already incorporates the definition of material evidence. In practice, these terms are used interchangeably.

For example, testimony by the Accused that the rape victim did not resist his sexual advances may be relevant (the probative component) to establish consent, but if the victim is a minor, such testimony is not material because consent is not “in issue”.

BURDEN OF PROOF; BURDEN OF EVIDENCE

BURDEN OF PROOF (RULE 131 SEC. 1)Burden of proof is the duty of a party to present evidence on the facts in issue necessary to establish his claim or defense by the amount of evidence required by law.

Upon Whom the Burden of Proof Rests

CIVIL CASES - the plaintiff has the burden of proof to show the truth of his allegations if the defendant raises a negative defense.

The defendant has the burden of proof if he raises an affirmative defense on the complaint of the plaintiff.

NOTE: In a civil case, the plaintiff is always compelled

to allege affirmative assertions in his complaint. When he alleges a cause of action, he must necessarily allege that he has a right and that such right was violated by the other party. Thus, he has the duty to prove the existence of this affirmative allegation.

CRIMINAL CASES - The burden of proof is on the prosecution by reason of presumption of innocence.

The burden of proof as to the guilt of the accused must be borne by the prosecution. It is required that courts determine first if the evidence of the prosecution has at least shown a prima facie case before considering the evidence of the defense. If the prosecution does not have a prima facie case, it is futile to waste time in considering the evidence presented by the defense. Should the prosecution succeed in establishing a prima facie case against the accused, the burden is shifted upon the accused to prove otherwise.

Under the Speedy Trial Act, if the accused was NOT brought to trial within the time required, the information shall be dismissed on the motion of the accused. In this case, the burden of proof of supporting such motion is with the accused. (Section 13 of R.A. 8493)

Degree of Proof That Satisfies the Burden of Proof

Civil Cases – Preponderance of evidence

Criminal Cases -

a) To sustain conviction – Evidence of guilt beyond reasonable doubt.

b) Preliminary investigation – Engenders a well-founded belief of the fact of the commission of a crime.

c) Issuance of warrant of arrest– Probable cause (i.e., that there is reasonable ground to believe that a criminal offense has been committed and that the accused committed the offense).

Administrative Cases – Substantial evidence

Hierarchy of Evidence1. Proof beyond reasonable doubt2. Clear and convincing evidence3. Preponderance of evidence4. Substantial evidence

Burden of EvidenceBurden of evidence is the duty of a party to go forward with the evidence to overthrow any prima facie presumption against him. (Bautista v. Sarmiento, G.R. No. L-45137, September 23, 1985)

In both civil and criminal cases, the burden of evidence lies on the party who asserts an affirmative allegation.

Upon Whom the Burden of Evidence Rests1. Civil Cases - The plaintiff has to establish his case by preponderance of evidence. If he claims a right granted or created by law, he must prove such right. (Sps. Guidangen v. Wooden G.R. No. 174445, Feb. 15, 2012)

2. Criminal Cases - The prosecution has to prove its affirmative allegations in the information (i.e., 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.

BURDEN OF PROOF BURDEN OF EVIDENCE

Obligation of a party to present evidence on the facts in issue necessary to establish his claim or defense by the amount of evidence required by law

Duty of a party to go forward with the evidence to overthrow any prima facie presumption against him

The burden of proof is fixed by the pleadings

Generally determined by the developments of the trial or by provisions of substantive law or procedural rules which may relieve the party from presenting evidence on the facts alleged.

Does not shift during the course of the trial.

May shift from one side to the other as trial unfolds.

Principle of Negative Averments General Rule - Negative allegations need not be proved, whether in a civil or criminal action.

Exception - When 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 defenses thereto.

Exception to the exception - In CIVIL CASES, even if the negative allegation is an essential part of the cause of action or defense, such negative allegation does not have to be proved if it is only for the purpose of denying the existence of a document which should properly be in the custody of the adverse party.

In CRIMINAL CASES, if the subject of a negative averment inheres to the offense as an essential ingredient thereof, the prosecution has the burden of proving the same. In view, however, of the difficult office of proving a negative allegation, the prosecution, under such circumstance, needs to do no more than make a prima facie case from the best evidence obtainable.

PRESUMPTIONS

Presumption – is an assumption of fact resulting from a rule of law which requires such fact to be assumed from another fact found or otherwise established in the action.

A presumption is an inference as to the existence or non-existence of a fact which courts are permitted to draw from the proof of other facts.

Difference between Inference and Presumption:

INFERENCE PRESUMPTIONA factual conclusion drawn from other facts that is not mandated by law

It is mandated by law

This does not necessarily establish a legal relation between or among the facts

This has legal effect and establishes a legal relation between or among the facts

Effect of PresumptionA party in whose favor the legal presumption exists may invoke such presumption to establish a fact in issue and need not introduce evidence to prove the fact for the presumption is prima facie proof of the fact presumed.

A presumption shifts the burden of evidence or the burden of going forward with the evidence. It imposes on the party against whom it is directed the burden of going forward with evidence to meet or rebut the presumption. It does not, however, shift the burden of proof.

Classification of Presumptions1. PRESUMPTION JURIS OR OF LAW – is a

deduction which the law expressly directs to be made from particular facts.

2. PRESUMPTION HOMINIS OR OF FACT –is a deduction which reason draws from facts proved without an express direction from the law to that effect.

PRESUMPTION OF LAW

PRESUMPTION OF FACT

Certain inference must be made whenever

Discretion is vested in the tribunal as to

the facts appear which furnish the basis of the inference

drawing the inference

Reduced to fixed rules and form a part of the system of jurisprudence

Derived wholly and directly from the circumstances of the particular case by means of the common experience of mankind

PRESUMPTION JURIS may be divided into:1. CONCLUSIVE PRESUMPTION (juris et de

jure) – inferences which the law makes so peremptory that it will not allow them to be overturned by any contrary proof however strong. (

2. DISPUTABLE PRESUMPTIONS (juris tantum)– is that which the law permits to be overcome or contradicted by proofs to the contrary; otherwise, the same remains satisfactory (Section 3, Rule 131 of the Rules of Court)

Conclusive Presumptions (Rule 131 Sec. 2)

1. ESTOPPEL IN PAIS – whenever a party has, by his own declaration, act, or omission, intentionally and deliberately lead another to believe a particular thing to be true and act upon such belief, he cannot, in any litigation arising out of such declaration, act or omission, be permitted to falsify it. (Rule 131, Section 2(a))

Estoppel is effective only as between the parties thereto or their successors in interest. (Art. 1439 of the Civil Code)

Requisites as to the Party to be Estopped:1. Conduct amounting to false

representation or concealment;2. Intent or at least expectation that the

conduct shall be acted upon; and3. Knowledge, actual or constructive of the

real facts

Requisites as to the Party CLAIMING Estoppel:1. Lack of knowledge of truth as to the facts

in question;

2. Reliance in good faith upon the conduct or statements of the party to be stopped; and

3. Action or inaction based thereon led to his detriment or prejudice

2. ESTOPPEL against Tenant – the tenant is not permitted to deny title of his landlord at the time of the commencement of the land-lord tenant relationship. Estoppel may attach even if the landlord does not have the title at the commencement of the relations. If the title asserted is one that is alleged to have been acquired subsequent to the commencement of that relation, the presumption will not apply (Rule 131 Sec. 2(b)).

DISPUTABLE PRESUMPTIONS (RULE 131, SEC. 3)

Disputable presumptions are satisfactory if uncontradicted, but they may be contradicted and overcome by other evidence.

The following are disputable presumptions:

(a) That a person is innocent of crime or wrong;

(b) That an unlawful act was done with an unlawful intent;

(c) That a person intends the ordinary consequences of his voluntary act;

(d) That a person takes ordinary care of his concerns;

(e) That evidence willfully suppressed would be adverse if produced;

(f) That money paid by one to another was due to the latter;

(g) That a thing delivered by one to another belonged to the latter;

(h) That an obligation delivered up to the debtor has been paid;

(i) That prior rents or installments had been paid when a receipt for the later one is produced;

(j) That a person found in possession of a thing taken in the doing of a recent wrongful act is the taker and the doer of the whole act; otherwise, that things which a person possess, or exercises acts of ownership over, are owned by him;

(k) That a person in possession of an order on himself for the payment of the money, or the delivery of anything, has paid the money or delivered the thing accordingly;

(l) That a person acting in a public office was regularly appointed or elected to it;

(m) That official duty has been regularly performed;

(n) That a court, or judge acting as such, whether in the Philippines or elsewhere, was acting in the lawful exercise of jurisdiction;

(o) That all the matters within an issue raised in a case were laid before the court and passed upon by it; and in like manner that all matters within an issue raised in a dispute submitted for arbitration were laid before the arbitrators and passed upon by them;

(p) That private transactions have been fair and regular;

(q) That the ordinary course of business has been followed;

(r) That there was a sufficient consideration for a contract;

(s) That a negotiable instrument was given or indorsed for a sufficient consideration;

(t) That an endorsement of negotiable instrument was made before the instrument was overdue and at the place where the instrument is dated;

(u) That a writing is truly dated;

(v) That a letter duly directed and mailed was received in the regular course of the mail;

(w) That after an absence of seven years, it being unknown whether or not the absentee still lives, he is considered dead for all purposes, except for those of succession.

The absentee shall not be considered dead for the purpose of opening his succession till after an absence of ten years. If he disappeared after the age of seventy-five years, an absence of five years shall be sufficient in order that his succession may be opened.

The following shall be considered dead for all purposes including the division of the estate among the heirs:

1. A person on board a vessel lost during a sea voyage, or an aircraft with is missing, who has not been heard of for four years since the loss of the vessel or aircraft;

2. A member of the armed forces who has taken part in armed hostilities, and has been missing for four years;

3. A person who has been in danger of death under other circumstances and whose existence has not been known for four years;

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

(x) That acquiescence resulted from a belief that the thing acquiesced in was conformable to the law or fact;

(y) That things have happened according to the ordinary course of nature and ordinary nature habits of life;

(z) That persons acting as copartners have entered into a contract of copartneship;

(aa) That a man and woman deporting themselves as husband and wife have entered into a lawful contract of marriage;

(bb) That property acquired by a man and a woman who are capacitated to marry each other and who live exclusively with each other as husband and wife without the benefit of marriage or under void marriage, has been obtained by their joint efforts, work or industry.

(cc) That in cases of cohabitation by a man and a woman who are not capacitated to marry each other and who have acquire properly through their actual joint contribution of money, property or industry, such contributions and their corresponding shares including joint deposits of money and evidences of credit are equal.

(dd) That if the marriage is terminated and the mother contracted another marriage within three hundred days after such termination of the former marriage, these rules shall govern in the absence of proof to the contrary:

1. A child born before one hundred eighty days after the solemnization of the subsequent marriage is considered to have been conceived during such marriage, even though it be born within the three hundred days after the termination of the former marriage.

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

(ee) That a thing once proved to exist continues as long as is usual with things of the nature;

(ff) That the law has been obeyed;

(gg) That a printed or published book, purporting to be printed or published by public authority, was so printed or published;

(hh) That a printed or published book, purporting contain reports of cases adjudged in tribunals of the country where the book is published, contains correct reports of such cases;

(ii) That a trustee or other person whose duty it was to convey real property to a particular person has actually conveyed it to him when such presumption is necessary to perfect the title of such person or his successor in interest;

(jj) That except for purposes of succession, when two persons perish in the same calamity, such as wreck, battle, or conflagration, and it is not shown who died first, and there are no particular circumstances from which it can be inferred, the survivorship is determined from the probabilities resulting from the strength and the age of the sexes, according to the following rules:

1. If both were under the age of fifteen years, the older is deemed to have survived;

2. If both were above the age sixty, the younger is deemed to have survived;

3. If one is under fifteen and the other above sixty, the former is deemed to have survived;

4. If both be over fifteen and under sixty, and the sex be different, the male is deemed to have survived, if the sex be the same, the older;

5. If one be under fifteen or over sixty, and the other between those ages, the latter is deemed to have survived.

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

Some Disputable Presumptions Explained:

1. Presumption of innocence– Applies to both civil and criminal cases.

BASIS - founded on the principles of justice and is intended not to protect the guilty but to prevent the conviction of an innocent person.

This presumption accompanies the accused throughout the trial down to the moment of conviction. This presumption disappears after conviction and the appellate court then will presume the accused guilty.

By reason of this presumption, an accused is not called upon to offer evidence on his behalf for his freedom is forfeited only if the requisite quantum of proof necessary for conviction be in existence.

EQUIPOISE RULE: Where the evidence gives rise to two probabilities, one consistent with defendant’s innocence, and another indicative of his guilt, that which is favorable to the accused should be considered.

2. A person takes ordinary care of his concerns All men are presumed to be sane and normal and subject to be moved by substantially the same motives.

When of age and sane, they must take care of themselves. Courts operate not because one person has been defeated or overcome by another but because he has been defeated or overcome illegally. There must be a violation of law, the commission of what the law known as an actionable wrong before the courts is authorized to lay hold of the situation and remedy it.

3. Possession of stolen goodsThis is not in conflict with the presumption of innocence. At the start of the criminal case, the court will apply the presumption of innocence. But once the prosecution is able to prove that a certain object has been unlawfully taken, that there is a crime of theft committed and that the prosecution has also proven that the accused is in possession of this object unlawfully taken, and then the presumption of innocence disappears. The new presumption of guilt takes place.

4. A person acting in a public office was regularly appointed or elected to it

REASON - It would cause great inconvenience if in the first instance strict proof were required of appointment or election to office in all cases where it might be collaterally in issue.

The burden of proof is on the adverse party to show that he was not appointed or designated.

5. An official duty has been regularly performed

REASONS1. Innocence and not the wrongdoing is to

be presumed;2. An official oath will not be violated;3. A republican form of government cannot

survive unless a limit is placed upon controversies and certain trust and confidence reposed in each government, department, or agent at least to the extent of such presumption.

The presumption of regularity and legality of official acts is applicable to criminal as well as civil cases.

This presumption of authority is not confined to official appointees. It has been extended to persons who have been appointed pursuant to a local or special statute to act in quasi-public or quasi-official capacities and to professional men like surgeons and lawyers.

7. Regularity of judicial proceedingsThe court rendering the judgment is presumed to have jurisdiction over the subject matter and the parties and to have rendered a judgment valid in every respect.

Jurisdiction is presumed in all cases, be it superior or inferior court.

However, jurisdiction to render a judgment in a particular case or against a particular case, or against persons may not be presumed when the record itself shows that jurisdiction has not been acquired or there was something on the record showing the absence of jurisdiction.

8. Private transactions have been done with regularity and fairly

An individual intends to do right rather than wrong and intends to only what he has the right to do.

In the absence of proof to the contrary, there is a presumption that all men act fairly honestly, and in good faith.

9. Ordinary course of business has been followed Those who were engaged in a given trade or business are presumed to be acquainted with the general customs and usages of the occupation and with such other facts as are necessarily incident to the proper conduct of the business.

10. Evidence willfully suppressed would be adverse if produced.The natural conclusion is that the proof, if produced, instead of rebutting, would support the inference against him and the court is justified in acting upon the conclusion.

No presumption of legitimacy or illegitimacy (Rule 131 Sec. 4)A child born after three hundred days following the dissolution of a marriage or the separation of the spouses will not be presumed legitimate or illegitimate.

Whoever alleges the legitimacy or illegitimacy of such child must prove his allegation.

LIBERAL CONSTRUCTION OF THE RULES OF EVIDENCE

These rules shall be liberally construed in order to promote their objective of securing a just, speedy, and inexpensive disposition of every action and proceeding. (Rule 1 Sec. 6)

Rules on Electronic Evidence shall be liberally construed to assist the parties in obtaining a just, expeditious, and inexpensive determination of cases. (Rule 2 Sec. 2 of A.M. No. 01-7-01-SC)

QUANTUM OF EVIDENCE: WEIGHT AND SUFFICIENCY OF EVIDENCE

PROOF BEYOND REASONABLE DOUBT (RULE 133 SEC. 2)

In a criminal case, the accused is entitled to an acquittal unless his guilt is shown beyond reasonable doubt.

Proof beyond reasonable doubt does not mean such a degree of proof as excluding the possibility of error, produces absolute certainty.

Moral certainty only is required, or that degree of proof which produces conviction in an unprejudiced mind.

CLEAR AND CONVINCING EVIDENCE

Evidence is clear and convincing if it produces in the mind of the trier of fact a firm belief or conviction as to allegations sought to be established. (Black’s Law Dictionary, 5th ed., 596)

Clear and convincing evidence is evidence indicating that the thing to be proved is highly probable or reasonably certain.

This is a greater burden than preponderance of evidence, the standard applied in most civil trials, but less than evidence beyond a reasonable doubt, the norm for criminal trials. (Black’s Law Dictionary, 8th ed., 596)

PREPONDERANCE OF EVIDENCE (RULE 133 SEC. 1)

In civil cases, the party having the burden of proof must establish his case by a preponderance of evidence. (Rule 133 Sec. 1)

In civil cases, the party having the burden of proof must establish his case by preponderance of evidence, or that evidence which is of greater weight or is more convincing than that which is in opposition to it. (BPI v. Reyes, G.R. 157177, Feb. 11, 2008)

It does not mean absolute truth; rather, it means that the testimony of one side is more believable than that of the other side, and that the

probability of truth is on one side than on the other. (Rivera v. Court of Appeals, G.R. No. 115625. January 23, 1998)

Factors which the court may consider in determining where the preponderance or superior weight of evidence lies:

1. All the facts and circumstances of the case;

2. The witnesses’ manner of testifying; their intelligence; their means and opportunities 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; personal credibility so far as the

same may legitimately appear upon the trial.

3. The number of witnesses (though preponderance is not necessarily with the greater number.) (Rule 133, Sec. 1)

SUBSTANTIAL EVIDENCE (RULE 133 SEC. 5)

In cases filed before administrative and quasi-judicial bodies, a fact may be deemed established if it is supported by substantial evidence.

Substantial evidence is that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion.

JUDICIAL NOTICE; JUDICIAL ADMISSIONS

WHAT NEED NOT BE PROVED

1. Facts which are subject to judicial notice2. Facts which are legally presumed3. Facts which are admitted or which are not denied in the answer, provided they have been sufficiently alleged. 4. Allegations contained in the complaint or answer immaterial to the issues5. Those which are subject of an agreed statement of facts between the parties as well as those admitted by the party in the course of the proceedings in the same case

6. Facts peculiarly within the knowledge of the opposite party (Gesmundo, Evidence Basic Principles and Selected Problems, 2011, page 1)

JUDICIAL NOTICE – cognizance of certain facts which judges may properly take and act on without proof because they already know them.

Object of Judicial NoticeJudicial notice is based on convenience and expediency. It would certainly be superfluous, inconvenient, and expensive both to parties and the court to require proof, in the ordinary way, of facts which are already know to the courts.

Direct Effect of Judicial NoticeJudicial notice relieves the parties from the necessity of introducing evidence to prove the fact noticed. It makes evidence unnecessary.

The stipulation and admission of the parties or counsel cannot prevail over the operation of the doctrine of judicial notice, and such stipulation and admissions are all subject to the operation of the doctrine.

Judge’s Personal Knowledge of the FactsJudicial notice is not judicial knowledge. The mere personal knowledge of the judge is not the judicial knowledge of the court, and he is not authorized to make his individual knowledge of a fact, not generally or professionally known, the basis of his action.Judicial cognizance is taken only of those matters which are “commonly” known.(Spouses Omar And Moshiera Latip v. Chua, G.R. No. 177809, October 16, 2009)

JUDICIAL NOTICE, WHEN MANDATORY

MANDATORY- takes place at the court’s own initiative and it needs no hearing.

When Judicial Notice is Mandatory(Section 1, Rule 129 of the Rules of Court)

1. Existence and territorial extent of states The territorial extent of the nation and of

the several states and the division of states into towns, countries and other political subdivisions are generally regulated by public laws and also matters

of general notoriety. Hence the courts do not require proof of such facts. (Herrera, supra at 78-79)

2. Their political history, Forms of government and symbols of nationality,

3. The law of nations The law of nations, as opposed to foreign

law, is subject to mandatory judicial notice as the Philippines adopts the generally accepted principles of international law as part of the law of the land.

4. The admiralty and maritime courts of the world and their seals

5. The political constitution and history of the Philippines,

6. The official acts of legislative, executive and judicial departments of the Philippines,

7. The laws of nature, Example: The recurrence of seasons

8. The measure of time Example: There are 24 hours in a day

9. The geographical divisions Example: Certain cities are divided into

lots, blocks and streets.

JUDICIAL NOTICE, WHEN DISCRETIONARY

DISCRETIONARY- may be at the court’s own initiative or on request of a party and it needs hearing and presentation of evidence.

Test of NotorietyThe Doctrine of judicial notice rests on the wisdom and discretion of the courts. The power to take judicial notice is to be exercised by the courts with caution; care must be taken that the requisite notoriety exists; and every reasonable doubts upon the subject should be promptly resolved in the negative.

For a matter to be taken judicial notice of by the courts of law, it must be a subject of common and

general knowledge. In other words, Judicial notice of facts is measured by general knowledge of the same facts. A fact is said to be generally recognized or known when its existence or operation is accepted by the public without qualification or contention. The test is whether the 'act involved is so notoriously known as to make it proper to assume its existence without proof. The fact that a belief is not universal, however, is not controlling for it is very seldom that any belief is accepted by everyone. It is enough that the matters are familiarly known to the majority of mankind or those persons f with the particular matter in question (20 Am Jur 49-50; Martin, Rules of Court 37, Second Edition). Furthermore, a matter may be personally known to the judge and yet tot be a matter of judicial knowledge and vice versa, a matter may not be actually known to an individual judge, and nevertheless be a proper subject of judicial cognizance. (Republic v. Court of Appeals, G.R. No. L-54886 September 10, 1981)

Judicial notice is limited to facts evidenced by public records and facts of general notoriety. A judicially noticed fact must be one NOT subject to a reasonable dispute. Thus, a court cannot take judicial notice of a factual matter in controversy.

When Judicial Notice is Discretionary(Section 2, Rule 129 of the Rules of Court)

1. The matter is one of public or common knowledge

“Commonly Known” Things of “common knowledge,” of which courts take judicial notice, may be matters coming to the knowledge of men generally in the course of the ordinary experiences of life, or they may be matters which are generally accepted by mankind as true and are capable of ready and unquestioned demonstration. Thus, facts which are universally known, and which may be found in encyclopedias, dictionaries or other publications, are judicially noticed, provided they are of such universal notoriety and so generally understood that they may be regarded as forming part of the common knowledge of every person. .(Spouses

Omar And Moshiera Latip v. Chua, G.R. No. 177809, October 16, 2009)

2. The matter must be capable of unquestionable demonstration

Matters which are capable of unquestionable demonstration pertain to fields of professional and scientific knowledge. For example, in People v. Alicante,[34] the trial court took judicial notice of the clinical records of the attending physicians concerning the birth of twin baby boys as “premature” since one of the alleged rapes had occurred 6 to 7 months earlier. (People v. Tundag, G.R. Nos. 135695-96. October 12, 2000)

3. The matter is one that is ought to be known to judges because of their judicial functions.

An example would be facts which are ascertainable from the record of court proceedings, e.g. as to when court notices were received by a party. (Id.)

SEC. 3. JUDICIAL NOTICE, WHEN HEARING NECESSARY

Judicial Notice, When Hearing NecessaryPurpose -not for the presentation of evidence but to afford the parties reasonable opportunity to present information relevant to the propriety of taking such judicial notice or to the tenor of the matter to be noticed.

Stages Where the Court May Take Judicial Notice of a Fact1. During trial;2. After trial and before judgment;3. Appeal

Distinction Between Judicial Notice Taken During Trial and That Taken After Trial but Before Judgment or on Appeal:

1. During the trial -the Court, motu proprio or upon request, may announce its intention to take judicial notice of any matter and may hear the parties thereon.

2. After trial but before judgment or on appeal - the Court, motu proprio or upon request, may take judicial notice of any matter and allow the parties to be heard thereon if such matter is decisive of a material issue in the case.

DISTINCTION BETWEEN MANDATORY JUDICIAL NOTICE AND DISCRETIONARY JUDICIAL NOTICE

MANDATORY JUDICIAL NOTICE

DISCRETIONARY JUDICIAL NOTICE

Court is compelled to take judicial notice Court not compelled

By own initiative of the court

At the court’s own initiative or on request of any of the parties

No hearing Hearing required

RULE ON FOREIGN LAWS

General Rule: Courts cannot take judicial notice of foreign laws. Foreign laws have to be proved like any other fact.

Exceptions1. When the said laws are already within the actual knowledge of the court, such as when they are well and generally known or they have been actually ruled upon in other cases before it and none of the parties concerned do not claim otherwise. PCIB v. Escolin, 56 SCRA 266 (1974)2. Common Law (Herrera, supra at 84)

3. A published treatise, periodical or pamphlet on a subject of history, law, science, or art is admissible as tending to prove the truth of a matter stated therein if the court takes judicial notice, or a witness expert in the subject testifies, that the writer of the statement in the treatise, periodical or pamphlet is recognized in his profession or calling as expert in the subject. (Section 46, Rule 130 of Rules of Evidence)

4. Stipulation by the parties - the parties in a given case do not have any controversy or are more or less in agreement, the Court may take it for granted for the purposes of the particular case before it that the said laws are as such virtual agreement indicates, without the need of requiring the presentation of what otherwise

would be the competent evidence on the point. PCIB v. Escolin, 56 SCRA 266 (1974) How foreign laws are provedA written foreign law maybe proven by an official publication or by a duly attested and authenticated copy thereof.

When the foreign law is part of a published treatise, periodical or pamphlet and the writer is recognized in his profession or calling as an expert in the subject, the court may take judicial notice of the treatise containing the foreign law. (Section 46, Rule 130 of the Rules of Court)

DOCTRINE OF PROCESSUAL PRESUMPTION – If the foreign law is not properly proved, the foreign law is presumed to be the same as the law in the Philippines.

RULE ON MUNICIPAL ORDINANCES

1. MUNICIPAL TRIAL COURTS are required to take judicial notice of the ordinances of the municipality or city where they sit.

2. REGIONAL TRIAL COURTS must take judicial notice only1. When required to do so by statute; and 2. In a case on appeal before them and where the inferior court took judicial notice of an ordinance involved in said case.

3. The COURT OF APPEALS may take judicial notice of municipal ordinances because nothing in the Rules prohibits them from doing so if it is capable of unquestionable demonstration.

Trial courts are required to take judicial notice of the decisions of the appellate courts but not of the decisions of coordinate trial courts.

RULE ON COURT RECORDS

1. Court’s Own Acts and RecordsA court may take judicial notice of its OWN acts and records in the SAME case.

2. Records of Other CasesGeneral Rule - Courts are not authorized to take judicial notice of the contents of the records of

other cases, even when such have been tried or are pending in the same court and with the same judge.

Exceptions1. A party clearly makes reference to the records of another case and there is no objection by the other party;2. Judicial notice is at the request or with the consent of the parties; or3. The original or part of the records of the case are actually withdrawn from the archives and are admitted as part of the record of the case pending. Tabuena v. CA, [196 SCRA 650, G.R. No. 85423, May 6, 1991]

JUDICIAL NOTICE OF OTHER MATTERS

1. A court can take judicial notice of banking practices.2. A court cannot take judicial notice of an administrative regulation or of a statute that is not yet effective.3. A court cannot take judicial notice of the age of the victim without hearing and presentation of proof.4. A court has taken judicial notice of the Filipina’s inbred modesty and shyness and her antipathy in publicly airing acts which blemish her honor and virtue.JUDICIAL ADMISSIONSJUDICIAL ADMISSIONS are admissions, verbal or written, made by a party in the course of the proceedings in the same case.

Elements of Judicial Admissions [PPP]1. Must be made by a party to a case; and2. Must be made in the course of the proceedings in the same case.3. No particular form is required, thus a judicial admission may be verbal or written.

Forms of Judicial Admission1. May be oralExamples:a. Verbal waiver of proof made in open courtb. A withdrawal of a contention or a disclosure made before the courtc. Admission made by a witness in the course of his testimony or deposition

2. May be writtenExamples:a. Pleadingb. Bill of Particularsc. Stipulation of Factsd. Request for Admissione. Affidavit used in the casef. Depositionsg. Written Interrogatories

Judicial admissions may be made by either a party or counsel.

When a defendant is declared in default for having failed to answer the complaint, such a failure does not amount to an admission of the facts alleged in the complaint.

To be considered a judicial admission, the admission must be made in the same case; otherwise, it is an extrajudicial admission.

Extra-Judicial Admissions – are those made out of court, or in a judicial proceeding other than the one under consideration.

Distinction Between Judicial Admission and Extrajudicial admissions

JUDICIAL ADMISSIONS (Section 4, Rule 129)

EXTRA-JUDICIAL ADMISSION

(Section 26, Rule 130)Admission must be

made in the course of the proceeding in the

same case

Out-of-court-declarations

Conclusive upon the admitter Rebuttable

Does not require proof Requires proof

Effect of Judicial AdmissionsAn admission, verbal or written, made by the party in the course of the proceedings in the same case, does not require proof. (Section 4, Rule 129 of the Rules of Court)

General Rule: A judicial admission is conclusive upon the party making it and does not require proof

Exceptions:Judicial admissions may be contradicted ONLY by showing that:1. The admission was made through PALPABLE MISTAKE2. NO ADMISSION was made.

When Pleading Superseded or AmendedPleadings that are superseded or amended “disappear” from the record and cease to be judicial admissions. In order that any statement contained therein may be considered as evidence, a party should formally offer the superseded or amended pleading in evidence.

Remedies of a Party Who Gave a Judicial Admission1. Motion to Withdraw: for written judicial admissions, by filing a motion to withdraw the pleadings, motion or other written instrument containing such admission.2. Motion for Exclusion: for oral judicial admissions, counsel in open court may move for the exclusion of such admission.

Admissions in Drafted DocumentsAn admission made in a document drafted for purposes of filing as a pleading but never filed, is not a judicial admission. If signed by a party, it is deemed an extrajudicial admission. If signed by the attorney, it is not deemed as an admission by the party. An attorney only has the authority to make statements on behalf of his clients in open court or in a pleading actually filed.

Admissions in the Pre-Trial of Civil CasesIn civil cases, pre-trial is mandatory. Therefore, admissions in pre-trial, as well as those made during the depositions, interrogatories or requests for admission are all deemed judicial admissions because they are made in the course of the proceedings of the case.

Hypothetical AdmissionsNot all allegations or admissions in civil cases may be considered as judicial admissions because the Rules on Civil Procedure allow a litigant to make hypothetical admissions in his pleading.

Examples:

1. When a defendant sets up affirmative defenses in his answer (Section 6, Rule 6)2. When defendanr files a motion to dismiss based on lack of jurisdiction.

Admissions in the Pre-Trial of Criminal Cases An admission made by the accused in the pre-trial of a criminal case is not yet admissible against him. To be admissible, it must be reduced in writing and signed by both the accused and the counsel.

Admissions in Amended PleadingsWhen a pleading is amended, the amended pleading supersedes the pleading that it amends and the admissions in the superseded pleading may be received in evidence against the pleader as extrajudicial admissions which must be proven.

Having been amended, the original complaint loses its character as a judicial admission which would require no proof. It is now an extrajudicial admission which requires proof (Torres v. Court of Appeals, [131 SCRA 24, G.R. No. L-37420, July 31, 1984)

Admissions in Dismissed Pleadings Admissions made in pleadings that have been dismissed are merely extrajudicial admissions.

Admissions by CounselAdmissions by a counsel are generally conclusive. However, in cases where reckless or gross negligence of counsel deprives the client of due process of law, or when its application will result in outright deprivation of the client’s liberty or property or when the interests of justice so require, relief is accorded the client who suffered by reason of the lawyer’s gross or palpable mistake or negligence.

RULES ON ELECTRONIC EVIDENCE (A.M. NO. 01-7-01-SC)

Scope and Coverage

The Rules on Electronic Evidence (REE) shall apply whenever an electronic document or electronic data message as defined in these rules is offered or used in evidence. (Rule 1 Sec.1, REE)

These Rules shall apply to all civil actions and proceedings, as well as quasi-judicial and administrative cases. (Rule 1 Sec.2, REE)

Applicability to Criminal Actions

As to the admissibility of the text messages, the RTC admitted them in conformity with the Court’s earlier Resolution applying the Rules on Electronic Evidence to criminal actions. (People v. Enojas, G.R. No.204894, Mar. 10, 2014)

Electronic Document - information or the representation of information, data, figures, symbols or other modes of written expression, described or however represented, by which a right is established or an obligation extinguished, or by which a fact may be proved and affirmed, which is received, recorded, transmitted, stored, processed, retrieved or produced electronically.

It includes digitally signed documents and any print-out or output, readable by sight or other means, which accurately reflects the electronic data message or electronic document. (Rule 2, Sec. 1(h), REE)

Electronic Data Message - information generated, sent, received or stored by electronic, optical or similar means. (Rule 2, Sec. 1(g), REE)

Note: For purposes of these Rules, the term “electronic document” may be used interchangeably with electronic data message”. (Rule 2, Sec. 1(h), REE)

Electronic evidence as functional equivalent of paper based documents - Whenever a rule of evidence refers to the term writing, document, record, instrument, memorandum or any other form of writing, such term shall be deemed to

include an electronic document as defined in these Rules. (Rule 3, Sec. 1, REE)

Admissibility

An electronic document is admissible in evidence if:

(i) It complies with the rules on admissibility prescribed by the Rules of Court and related laws; and

(ii) is authenticated in the manner prescribed by these Rules. (Rule 3, Sec. 2, REE)

Best Evidence Rule Under the REE

An electronic document shall be regarded as the equivalent of an original document under the Best Evidence Rule if it is a printout or output readable by sight or other means, shown to reflect the data accurately. (Rule 4, Sec. 1, REE)

When copies or duplicates of a document shall be regarded as original:

(i) it is in two or more copies executed at or about the same time with identical contents; or

(ii) it is a counterpart produced by the same impression as the original, or from the same matrix, or by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent techniques which accurately reproduces the original

Such copies or duplicates shall be regarded as the equivalent of the original. (Rule 4, Sec. 2, REE)

Note: Notwithstanding the foregoing, copies or duplicates shall not be admissible to the same extent as the original if: (Rule 4, Sec. 2, REE)

a) a genuine question is raised as to the authenticity of the original; or

b) in the circumstances it would be unjust or inequitable to admit the copy in lieu of the original.

Factors in Determining Evidentiary Weight of Electronic Evidence (Rule 7, Sec. 1 and 2, REE)

In assessing the evidentiary weight of an electronic document, the following factors may be considered: (Rule 7, Sec. 1, REE)

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

(b) The reliability of the manner in which its originator was identified;

(c) The integrity of the information and communication system in which it is recorded or stored, including but not limited to the hardware and computer programs or software used as well as programming errors;

In any dispute involving the integrity of the information and communication system in which an electronic document or electronic data message is recorded or stored, the court may consider, among others, the following factors: (Rule 7, Sec. 2, REE)

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

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

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

(d) The familiarity of the witness or the person who made the entry with the communication and information system;

(e) The nature and quality of the information which went into the communication and information system upon which the electronic data message or electronic document was based; or

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

Method of Proof

Affidavit Evidence - All matters relating to the admissibility and evidentiary weight of an electronic document may be established by an affidavit stating facts of:

(i) direct personal knowledge of the affiant; or

(ii) based on authentic records

The affidavit must affirmatively show the competence of the affiant to testify on the matters contained therein. (Rule 9, Sec. 1, REE)

Cross-Examination of Deponent – The affiant shall be made to affirm the contents of the affidavit in open court and may be cross-examined as a matter of right by the adverse party. (Rule 9, Sec. 2, REE)

Examination of Witness

Electronic Testimony - After summarily hearing the parties pursuant to Rule 9 of these Rules, the court may authorize the presentation of testimonial evidence by electronic means. Before so authorizing, the court shall determine the necessity for such presentation and prescribe terms and conditions as may be necessary under the circumstances, including the protection of the rights of the parties and witnesses concerned. (Rule 10, Sec. 1, REE)

Transcript of electronic testimony - When examination of a witness is done electronically, the entire proceedings, including the questions and answers, shall be transcribed by a

stenographer, stenotypist or other recorder authorized for the purpose, who shall certify as correct the transcript done by him. The transcript should reflect the fact that the proceedings, either in whole or in part, had been electronically recorded. (Rule 10, Sec. 2, REE)

Authentication of Electronic Documents (Rule 5, Sec. 1 to 3, REE)

Burden of proving authenticity

The person seeking to introduce an electronic document in any legal proceeding has the burden of proving its authenticity in the manner provided in this Rule. (Rule 5, Sec. 1, REE)

Manner of authentication

Before any private electronic document offered as authentic is received in evidence, its authenticity must be proved by any of the following means: (Rule 5, Sec. 2, REE)

(a) by evidence that it had been digitally signed by the person purported to have signed the same;

(b) by evidence that other appropriate security procedures or devices as may be authorized by the Supreme Court or by law for authentication of electronic documents were applied to the document; or

(c) by other evidence showing its integrity and reliability to the satisfaction of the Judge.

Proof of electronically notarized document

A document electronically notarized in accordance with the rules promulgated by the Supreme Court shall be considered as a public document and proved as a notarial document under the Rules of Court. (Rule 5, Sec. 3, REE)

Authentication of Electronic Signature

An electronic signature or a digital signature authenticated in the manner prescribed hereunder is admissible in evidence as the functional equivalent of the signature of a person on a written document. (Rule 6, Sec. 1, REE)

An electronic signature may be authenticated in any of the following manner: (Rule 6, Sec. 2, REE)

(a) By evidence that a method or process was utilized to establish a digital signature and verify the same;

(b) By any other means provided by law; or;(c) By any other means satisfactory to the

judge as establishing the genuineness of the electronic signature.

Electronic Documents vis-à-vis Hearsay Rule; Business Records as Exception to the Hearsay Rule (Rule 8, Sec. 1 and 2, REE)

A memorandum, report, record or data compilation of acts, events, conditions, opinions, or diagnoses, made by electronic, optical or other similar means is an exception to the hearsay rule provided that the following are shown by the testimony of the custodian or other qualified witness:

a) That it was made at or near the time of or from transmission or supply of information;

b) That it was made by a person with knowledge thereof;

c) That it was kept in the regular course or conduct of a business activity; and

d) That such was the regular practice to make the memorandum, report, record, or data compilation by electronic, optical or similar means (Rule 8, Sec.1, REE)

This exception may be overcome by evidence of the untrustworthiness of the source of information or the method or circumstances of the preparation, transmission or storage thereof. (Rule 8, Sec. 2, REE)

Audio, Photographic, Video and Ephemeral Evidence

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. (Rule 2, Sec. 1(k), REE)

Text messages have been classified as “ephemeral electronic communication” under Section 1(k), Rule 2 of the Rules on Electronic Evidence, and “shall be proven by the testimony of a person who was a party to the same or has personal knowledge thereof.” (Vidallon-Magtolis v. Salud, A.M. No. CA-05- 20-P, September 9, 2005)

Admissibility (Rule 11, Section 1 and 2, REE)

Audio, photographic and video evidence

Audio, photographic and video evidence of events, acts or transactions shall be admissible provided: (Rule 11, Sec.1, REE)

(i) it shall be shown, presented or displayed to the court; and

(ii) it shall be identified, explained or authenticated by the person who made the recording or by some other person competent to testify on the accuracy thereof

Ephemeral electronic communications

Ephemeral evidence shall be proven by the testimony of a person who was a party to the same or has personal knowledge thereof.

In the absence or unavailability of such witnesses, other competent evidence may be admitted.

A recording of the telephone conversation or ephemeral electronic communication shall be covered by the immediately preceding section.

Note: If the foregoing communications are recorded or embodied in an electronic document, then the provisions of Rule 5 on authentication of electronic documents shall apply. (Rule 11, Sec. 2, REE)

AUTHENTICATION; PROOF OF DOCUMENTS

Meaning of AuthenticationAuthentication is the process of proving the due execution and genuineness of the document.

In order to be admissible in evidence, the object sought to be offered must authenticated, that is, it must be shown to have been the very thing that is the subject matter of the lawsuit or the very one involved to prove an issue in the case.

Classes of Documents

DOCUMENTS– a deed, instrument or other duly authorized paper by which something is proved, evidenced or set forth.

Documents may either be public or private.

PUBLIC DOCUMENTS1. The written official acts, or records of the

official acts of the sovereign authority, official bodies and tribunals, and public officers, whether of the Philippines, or of a foreign country;

2. Documents acknowledged before a notary public except last wills and testaments; and

3. Public records, kept in the Philippines, of private documents required by law to the entered therein.

All other writings are PRIVATE. (Rule 132, Sec. 19)

PUBLIC DOCUMENTS PRIVATE DOCUMENTSIs admissible without further proof as to its due execution and genuineness

Before admitted in evidence as authentic, its due execution and authenticity must be prove

A public instrument is evidence even against third parties of the fact which gave rise to its due execution and to

Binds only the parties and privies to the private writing as to the due execution and date of the document

the date of the latter

When Private Writing Requires Authentication; Proof of Private WritingBefore any private document offered as authentic is received in evidence, its due execution and authenticity must be proved either:

1. By anyone who saw the document executed or written; or

2. By evidence of the genuineness of the signature or handwriting of the maker.

Any other private document need only be identified as that which it is claimed to be. (Rule 132, Sec. 20)

Additional Modes of Authenticating a Private Writing:

1. Doctrine of Self-AuthenticationWhere the facts in the writing could only have been known by the writer.

2. Authentication by Adverse PartyWhere reply of the adverse party refers to and affirms the sending and his receipt of the letter in question, a copy of which the proponent is offering as evidence.

When evidence of authenticity of a private writing is not required; Ancient DocumentsWhere a private document is more than thirty years old, is produced from the custody in which it would naturally be found if genuine, and is unblemished by any alterations or circumstances of suspicion, no other evidence of its authenticity need be given. (Rule 132, Sec.21)

How to prove the genuineness of a handwritingThe handwriting of a person may be proved by:

1. Any witness who believes it to be the handwriting of such person because he has seen the person write, or he has seen writing purporting to be his upon which the witness has acted or been charged, and has thus acquired knowledge of the handwriting of such person.

2. By a comparison, made by the witness or the court, with writings admitted or treated as genuine by the party against whom the evidence is offered, or proved to be genuine to the satisfaction of the judge. (Section 22, Rule 132 of the Rules of Court)

Evidence of Genuineness of Handwriting1. Testimony of the writer;2. Testimony of a witness who actually saw

the person writing the instrument whether the witness attested to the instrument or not;

3. Testimony of a witness who is sufficiently familiar with handwriting such witness can give an opinion or can make a comparison of questioned handwriting and admitted genuine specimens.

NOTE: Expert testimony on handwriting is not

mandatory.

Public Documents as Evidence

Public documents are admissible without further proof of their genuineness and due execution.

Documents consisting of entries in public records made in the performance of a duty by a public officer are prima facie evidence of the facts therein stated.

All other public documents are evidence, even against a third person, of the fact which gave rise to their execution and of the date of the latter. (Rule 132, Sec. 23)

Proof of Official Record

The record of public documents referred to in paragraph (a) of Section 19 (written official acts, or records of the official acts), when admissible for any purpose, may be evidenced by:

(a) an official publication thereof; or (b) by a copy attested by the officer having

the legal custody of the record, or by his deputy; and

(c) if the record is not kept in the Philippines, should be accompanied with a certificate that such officer has the custody.

If the office in which the record is kept is in a foreign country,

(a) The certificate may be made by a secretary of the embassy or legation, consul general, consul, vice consul, or consular agent or by any officer in the foreign service of the Philippines stationed in the foreign country in which the record is kept; and

(b) Authenticated by the seal of his office.

Attestation of a Copy

What Attestation Must Contain

Whenever a copy of a document or record is attested for the purpose of evidence, the attestation must state, in substance, that the copy is a correct copy of the original, or a specific part thereof, as the case may be.

The attestation must be under the official seal of the attesting officer, if there be any, or if he be the clerk of a court having a seal, under the seal of such court. (Rule 132, Sec. 25)

Public Record of a Private Document

An authorized public record of a private document may be proved by the original record, or by a copy thereof, attested by the legal custodian of the record, with an appropriate certificate that such officer has the custody. (Rule 132, Sec. 27)

Note: Any public record, an official copy of which is admissible in evidence, must not be removed from the office in which it is kept, except upon order of a court where the inspection of the record is essential to the just determination of a pending case. (Rule 132, Sec. 26)

Proof of Lack of RecordA written statement signed by an officer having the custody of an official record or by his deputy that after diligent search no record or entry of a specified tenor is found to exist in the records of his office, accompanied by a certificate as above

provided, is admissible as evidence that the records of his office contain no such record or entry. (Rule 132, Sec. 28)

How a Judicial Record is ImpeachedAny judicial record may be impeached by evidence of:

(a) want of jurisdiction in the court or judicial officer;

(b) collusion between the parties; or (c) fraud in the party offering the record, in

respect to the proceedings. (Rule 132, Sec. 29)

Proof of Notarial DocumentsEvery instrument duly acknowledged or proved and certified as provided by law, may be presented in evidence without further proof, the certificate of acknowledgment being prima facie evidence of the execution of the instrument or document involved. (Rule 132, Sec. 30)

How to Explain Alterations in a DocumentThe party producing a document as genuine which has been altered and appears to have been altered after its execution, in a part material to the question in dispute, must account for the alteration.

How a party may account for such alteration He may show that:

a) the alteration was made by another, without his concurrence, or

b) it was made with the consent of the parties affected by it, or

c) it was otherwise properly or innocently made, or

d) the alteration did not change the meaning or language of the instrument.

If he fails to do that, the document shall not be admissible in evidence. (Rule 132, Sec.31)

Documentary Evidence in an Unofficial LanguageDocuments written in an unofficial language shall not be admitted as evidence, unless accompanied with a translation into English or Filipino. To avoid interruption of proceedings, parties or their

attorneys are directed to have such translation prepared before trial. (Rule 132, Sec. 32)

EXAMINATION OF WITNESSES

EXAMINATION TO BE DONE IN OPEN COURT

The examination of a witness shall be done:1. in open court and 2. under oath or affirmation. (Section 1,

Rule 132 of the Rules of Court)

The answers shall be given orally except if: 1. the witness is incapacitated to speak 2. the question calls for a different mode of

answer (Section 1, Rule 132 of the Rules of Court)

Note: However, check the Judicial Affidavit Rule which now allows the testimonies of witnesses to be in affidavits.

OPEN COURTIt is a court formally opened and engaged in the transaction of judicial affairs.

Reason why Examination Should be Done in Open CourtThis method allows the court the opportunity to observe the demeanor of the witness and also allows the adverse party to cross-examine the witness. (Riano, p. 359, 2013)

OATH – A solemn declaration, accompanied by a swearing to God or a revered person or thing, that one’s statement is true or that one will be bound to a promise. (Black’s Law Dictionary, 7th Ed., p. 1176)

AFFIRMATION – is a solemn pledge equivalent to an oath but without reference to a supreme being or to swearing. (Black’s Law Dictionary, 7th Ed. P. 68)

Purpose of Rule Requiring Oath

To affect the conscience of the witness and compel him/her to speak the truth and to lay him/her open to punishment for perjury in case he/she willfully falsified.

No special wording is necessary for an affirmation, provided that the language used is designed to impress upon the individual the duty to tell the truth. (U.S v Kalaydjian, 784 F.2d 53 (2d Cir.1986]). (Riano 2013, p. 361)

The witness must take either an oath or affirmation, but the option to do so is given to the witness and not to the court. ( Riano 2013, p. 360)

Exceptions to Open Court Examinations: 1. Under the rule on Summary Procedure

when the affidavits of the parties shall constitute the direct testimonies of the witnesses who executed the same. ( Sec 15, Rule on Summary Procedure)

2. In civil cases, the parties are merely required to submit the affidavits of their witnesses and other pieces of evidence on the factual issues (Sec. 9, Rule on Summary Procedure)

3. Depositions which may be taken before a notary public (Sec. 10, Rule 23, ROC) or before any person authorized to administer oaths (Sec. 14, Rule 23, ROC)

4. In a criminal case when a party may utilize the testimony of a witness who is deceased (Sec. 1[f], Rule 115, ROC)

5. Under the Judicial Affidavit Rule, the judicial affidavit shall take the place of direct testimonies of the witnesses ( Sec. 2, Judical Affidavit Rule) (Riano 2013, p. 360)

PROCEEDINGS TO BE RECORDED

The Entire Proceedings of a Trial or Hearing Shall be RECORDED, including:

1. The questions propounded to a witness and his answers thereto.2. The statement made by the judge or any of parties, counsel or witnesses with reference to the case. (Section 2, Rule 132 of the Rules of Court)

A transcript of record of the proceedings made by the official stenographer, stenotypist or recorder and certified as correct by him shall be deemed prima facie correct statement of such proceedings. (Section 2, Rule 132 of the Rules of Court)

RIGHTS AND OBLIGATIONS OF A WITNESS

Obligation of a witnessA witness must answer questions, although his/her answer may tend to establish a claim against him/her.

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/her to a penalty for an offense unless otherwise provided by law (Right against self-incrimination);5. Not to give an answer which will tend to degrade his/her reputation, unless it be the very fact at issue or to a fact from which the fact in issue would be presumed. But a witness must answer to the fact of his previous final conviction for an offense. (Right against Self-Degradation)

Scope of Right Against Self-Incrimination 1. The right against self-incrimination is granted only in favor of individuals. Therefore, a corporation cannot invoke that privilege as the questioned testimony can come only from a corporate officer or employee who has a personality distinct from that of the corporation. 2. The right covers only testimonial compulsion and production by him/her of incriminating documents. It does not exclude the body when it can furnish relevant and competent evidence.

Right Against Self-Incrimination of an Accused and an Ordinary Witness Distinguished:

ACCUSED ORDINARY WITNESSHe cannot be compelled to testify or produce evidence even by subpoena or other process or order of the court.

He may be compelled to testify by subpoena having only the right to refuse to answer an incriminating question at the time it is asked to him.

He can refuse outright to take the stand as a witness

He does not have a right to disregard a supoena, decline to appear before the court at the time appointed, or refuse to testify altogether. The witness receiving a subpoena must obey. It is only when the incrimination question is addressed that he may refuse to answer. (Rosete v Lim, GR No. 136051, June 8, 2006)

Immunity Statutes

“USE” IMMUNITY “TRANSACTIONAL” IMMUNITY

prohibits the use of the witness’s compelled testimony and its fruits in any manner in connection with the criminal prosecution of the witness.

grants immunity to the witness from prosecution for an offense to which his compelled testimony relates.

Where the statute grants only “use immunity,” merely testifying and/or producing the evidence does not render the witness immune from prosecution despite his/her invocation of the right against self-incrimination. He/she is merely saved from the use against him/her of such statements or evidence which he/she has been compelled to produce notwithstanding his/her having seasonably invoked said right. Galman v. Pamaran, [138 SCRA 294, G.R. Nos. L-71208-09 and L-71212-13, August 30, 1985]

Note: Under R.A. 6981 (Witness Protection, Security and Benefit Act), A witness admitted into the witness protection program cannot refuse to testify or give evidence, produce books, documents, records, or writings necessary for the prosecution of the offense or offenses for which he has been admitted on the ground of the right against self-incrimination. (Sec. 14, R.A 6981) (Riano 2013, p. 363)

ORDER IN THE EXAMINATION OF AN INDIVIDUAL WITNESS

The order in which an individual witness may be examined is as follows:

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

DIRECT EXAMINATION

DIRECT EXAMINATION is the examination-in-chief of a witness by the party presenting him on the facts relevant to the issue.

Scope of Direct Examination All facts relevant to the issue

PurposeTo elicit facts about the client’s cause of action or defense. It is now subject to the Judicial Affidavit Rule, which took effect on January 1, 2013. (RIANO, Evidence, p. 369)

CROSS-EXAMINATION; ITS PURPOSE AND EXTENT

CROSS EXAMINATION Cross examination is the questioning of a witness at a trial or hearing by the party opposed to the party who called the witness to testify (Black’s Law Dictionary, 7th Ed. P. 433)

Scope of Cross Examination1. Any matter stated in the direct examination, or connected therewith2. All important facts bearing upon the issue

Purpose of Cross Examination1. To bring out facts favorable to the

counsel’s client not established by direct testimony (Riano, EVIDENCE at supra citing Jackson v Feather River Water Co., 1859 14 C 18)

2. To enable counsel to impeach or to impair the credibility of the witness. (Riano, EVIDENCE at supra citing Kelly v Bailey 1961 189 CA2d 728, 11 CR 448)

Rules on Cross-Examination1. American Rule – cross-examination must be confined to matters inquired about in the direct examination.

2. English Rule – a witness may be cross-examined not only upon matters testified by him on his direct examination but also on all matters relevant to the issue. We follow the English Rule.

NOTE: But, where the witness is an unwilling or

hostile witness so declared by the court or is an adverse party, the cross-examination shall only be on the subject matter of his examination-in-chief. (Section 12, Rule 132 of the Rules of Court)

Cross Examination is an Absolute RightCross-examination is an absolute right. The Constitution provides that the accused shall enjoy the right to meet the witnesses face to face. (Section 14 Art. III of the 1987 Constitution)

When Cross Examination Becomes a PrivilegeWhen the cross-examination in chief is concluded and the attendance of the witness is either dispensed with from the stand or the re-examination, if any, has begun.

The right is a personal one which may be waived expressly or impliedly by conduct amounting to a renunciation of the right of cross-examination. Thus, where a party has had the opportunity to cross-examine a witness but failed to avail himself/herself of it, he/she necessarily forfeits

the right to cross-examine and the testimony given on direct examination of the witness will be received or allowed to remain in the record. [Fulgado v. CA, G.R. No. L-61570, February 12, 1990]

Effects of death or absence of a witness

1. Dies before his cross examination is over – If the witness dies before his cross-examination is over, his testimony on the direct may be stricken out only with respect to the testimony not covered by the cross-examination. The absence of the witness is not enough to warrant striking out his testimony for failure to appear for further cross-examination where the witness has already been sufficiently cross-examined, and the matter on which the cross-examination is sought is not in controversy. (RIANO, Evidence, citing People v Seneris 99 SCRA 92)

2. Witness not cross-examined – If the witness was not cross-examined because of causes attributable to the cross examining party and the witness had always made himself available for cross examination, the direct testimony of witness shall remain in the record and cannot be ordered stricken off because the cross examiner is deemed to have waived the right to cross-examine witness. (RIANO, Evidence, citing De la Paz v Intermediate Appellate Court, 154 SCRA 65)

RE-DIRECT EXAMINATION; ITS PURPOSE AND EXTENT

RE-DIRECT EXAMINATION It is the further examination by a party of his/her own witness after cross-examination.

Scope of Re-direct Examination

On matters dealt with during the cross-examination. Other matters may be allowed by the court in its discretion.

Purpose1. To allow the witness-in-chief to

explain or supplement his answers given during the cross-examination.

2. The counsel may elicit testimony to correct or repeal any wrong impression or inferences that may have been created in the cross-examination.

3. It may also be an opportunity to rehabilitate a witness whose credibility has been damaged. (RIANO, EVIDENCE, p. 370)

RE-CROSS-EXAMINATION

RE-CROSS EXAMINATIONIt is the examination of a witness who has finished his/her examination-in-chief, cross-examination, and re-direct examination, by the counsel who cross-examined.

Scope of Re-cross ExaminationOn matters stated in the re-direct examination. However, other matters may be allowed by the court in its discretion.

RECALLING WITNESS.

After the examination of a witness by both sides has been concluded, the witness cannot be recalled without leave of the court.

The court will grant or withhold leave in its discretion, as the interests of justice may require.

Purpose1. For the witness to correct or explain his/her prior testimony.2. Witnesses may also be recalled after they have left the stand to lay the proper foundation for impeachment but this is within the discretion of the court.

LEADING AND MISLEADING QUESTIONS

LEADING QUESTIONIt is a question which suggests to the witness the answer which the examining party desires.

It is not allowed, EXCEPT1. On cross-examination;2. On preliminary matters;3. When there is difficulty in getting direct and intelligible answers from a witness who is ignorant, or a child of tender years, or is of feeble mind, or a deaf-mute;4. Of an unwilling or hostile witness; or5. 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.

Generally, leading questions are not allowed in direct examination and should be confined to cross-examination.

Rule on Questions in the Alternative1. A question in the alternative is not leading where it is not so framed as to indicate which answer is desired.2. If so framed as to suggest the answer, the question is improper as leading and the mere use of words “whether or not” does not necessarily prevent it from being leading.

MISLEADING QUESTION

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

Test Whether Question Leading or MisleadingThe test whether a question is leading or not is the suggestiveness of its substance and not the form of the question. If the question suggests the answer desired by putting words into the mouth of the witness, it is leading.

Forms and Nature of Questions that May be Propounded to Witnesses:

1. Must not be indefinite or uncertain.

2. Must be relevant.3. Must not be argumentative.4. Must not call for conclusion of law.5. Must not call for opinion or hearsay evidence.6. Must not call for opinion.7. Must not call for an illegal answer.8. Must not call for self-incriminating testimony.9. Must not be leading.10. Must not be misleading.11. Must not tend to degrade reputation of witness.12. Must not be repetitious.

IMPEACHMENT OF ADVERSE PARTY'S WITNESS

To impeach a witness means to call into question the veracity of the witness or by showing that the witness is unworthy of belief.

Destroying credibility is vital because it is linked with a witness ability and willingness to tell the truth. (RIANO, EVIDENCE, p. 373)

The Adverse Party’s Witness May be Impeached By:1. Contradictory evidence;2. Evidence that the witness’ general reputation for truth, honesty, or integrity is bad; or3. Evidence that he/she has made at other times inconsistent with his/her present testimony.

General Rule: The adverse party’s witness cannot be impeached by evidence of particular wrongful acts.

For example, a lawyer for the other party cannot ask a witness the following question on cross-examination: “Isn’t it a fact that you shoplifted one week ago?”

Exception: It may be shown by the examination of the witness or the record of the judgment that the adverse party’s witness has been convicted of an offense.

CONTRADICTORY EVIDENCE

PRIOR INCONSISTENT STATEMENTS

The normal basis of this Prior inconsistent

mode of impeachement is a declaration made by the witness in his direct testimony.

statements are statements made by a witness on an earlier occasion which contradict the statement he makes during the trial. (RIANO, EVIDENCE, p. 375)

Other Modes of Impeachment:1. Impeachment by showing improbability or unreasonableness of testimony.2. Impeachment by showing bias, prejudice, and hostility.3. Impeachment by prior inconsistent acts or conduct.4. Impeachment by showing social connections, occupation and manner of living.5. Impeachment by showing interest.6. Impeachment by showing intent or motive.PARTY MAY NOT IMPEACH HIS OWN WITNESS.General Rule: A party producing a witness is not allowed to impeach his/her credibility.

Exceptions:1. If he/she is an adverse party.2. If he/she has become an unwilling or hostile witness.

ADVERSE PARTY

In order to be considered an adverse party, the witness must be adverse to the party calling him/her and be actively seeking a recovery against, or opposing a recovery by, such party, or a person for whose immediate benefit the action was brought or defended.

A Witness Will be Considered Hostile or Unwilling Upon:

1. Declaration by the court;2. Adequate showing of his/her adverse interest, unjustified reluctance to testify, or his/her having misled the party into calling him/her to the witness stand

HOSTILE WITNESS

A hostile witness is one who manifests so much hostility or prejudice under examination-in-chief that the party who has called him/her is allowed to cross-examine him/her, that is to treat him/her as though he/she had been called by the opposite party.

Methods of Impeachment of One’s Own Witness1. Evidence contrary to his testimony.2. Evidence of prior inconsistent statementsHOW WITNESS IMPEACHED BY EVIDENCE OF INCONSISTENT STATEMENTS.

General Rule: A witness cannot be impeached by proof of inconsistent statements until the proper foundation or predicate has been laid.

Exception:Failure to lay a proper foundation may be waived by the failure of the adverse party to object in proper form to the instruction of the alleged inconsistent statement.

A Witness is Impeached by Prior Inconsistent Statements by “Laying the Predicate”:

1. By relating to him such statements with the circumstances of the times and places and the persons present.2. By asking him whether he made such statements3. By giving him a chance to explain the inconsistency.4. If the statements be in writing, they must be shown to the witness before any question is put to him concerning them. (Section 13, Rule 132 of the Rules of Court)

Unless the witness is given the opportunity to explain the discrepancies, the impeachment is incomplete.

The “Laying the Predicate” Rule Does NOT Apply:1. If the prior inconsistent statement appears in a deposition of the adverse party, and not a mere witness, as such statements are in the nature of admissions of said adverse party. (REGALADO, Evidence, p. 852)

2. Where the previous statements of a witness are offered as evidence of an admission, and not merely to impeach him. (REGALADO, Evidence, p. 852 citing Juan Ysmael & Co. , Inc,v Hashim, et. al. , 50 Phil . 132)

EVIDENCE OF GOOD CHARACTER OF WITNESS

Evidence of the good character of a witness is not admissible until such character has been impeached. Reason: The law presumes every person to be reputedly truthful till evidence shall have been produced to the contrary.

JUDICIAL AFFIDAVIT RULE(AM No. 12-8-8-SC)

What is the Judicial Affidavit Rule?

Sec 2[a][1]The judicial affidavits of their witnesses, which shall take the place of such witnesses' direct testimonies;

The rule modifies the existing practice in the conduct of a trial and reception of evidence by doing away with the usual oral examination of a witness in a direct examination. (RIANO, Evidence, p. 418)

Effectivity of the Judicial Affidavit Rule It took effect on January 1, 2013 following its publication in two newspapers of general circulation not later than September 12,2012 (Sec. 12, Judicial Affidavit Rule)

Application to Existing CasesIt shall apply to existing cases.

The application of the Rule to existing cases is not barred by the fact that other direct testimonies have already been conducted orally before the effectivity of the same. The remaining direct testimonies shall be done by means of judicial affidavits. (RIANO, Evidence, p. 418)

What should be attached to a judicial affidavit1. Documentary or object evidence of the

parties (Sec 2[a][2], Judicial Affidavit Rule)

2. Original document or object evidence need not be attached to the judicial affidavit, The party or witness may keep the same in his possession after exhibit has been identified, marked as an exhibit, and authenticated.

o He must however warrant in his judicial affidavit that the copy or reproduction attached is a faithful copy or reproduction of the original. (Sec 2[b], Judicial Affidavit Rule)

3. The party or the witness is required to bring the original document or object evidence for comparison with the attached copy, reproduction, or pictures, during the preliminary conference.

o In case of failure to bring the aforesaid, the attached copy, reproduction, or pictures shall not be admitted. (Sec 2[b], Judicial Affidavit Rule)

Scope of the Judicial Affidavit Rule This Rule shall apply to all actions, proceedings, and incidents requiring the reception of evidence before:

(1) The Metropolitan Trial Courts, the Municipal Trial Courts in Cities, the Municipal Trial Courts, the Municipal Circuit Trial Courts, and the Shari' a Circuit Courts but shall not apply to small claims cases under A.M. 08-8-7-SC;

(2) The Regional Trial Courts and the Shari'a District Courts;

(3) The Sandiganbayan, the Court of Tax Appeals, the Court of Appeals, and the Shari'a Appellate Courts;

(4) The investigating officers and bodies authorized by the Supreme Court to receive evidence, including the Integrated Bar of the Philippine (IBP); and

(5) The special courts and quasi-judicial bodies, whose rules of procedure are

subject to disapproval of the Supreme Court, insofar as their existing rules of procedure contravene the provisions of this Rule.

Applicability of the Judicial Affidavit Rule to Criminal Cases

Sec. 9The Judicial Affidavit Rule shall apply to criminal cases.

Qualifications for application: (1) Where the maximum of the imposable penalty does not exceed six years;(2) Where the accused agrees to the use of judicial affidavits, irrespective of the penalty involved; or(3) With respect to the civil aspect of the actions, whatever the penalties involved are.

Contents of a Judicial Affidavit (Sec 3) 1. The name, age, residence or business

address, and occupation of the witness;2. The name and address of the lawyer who

conducts or supervises the examination of the witness and the place where the examination is being held;

3. A statement that the witness is answering the questions asked of him, fully conscious that he does so under oath, and that he may face criminal liability for false testimony or perjury;

4. Questions asked of the witness and his corresponding answers, consecutively numbered, that:

a. Show the circumstances under which the witness acquired the facts upon which he testifies;

b. Elicit from him those facts which are relevant to the issues that the case presents; and

c. Identify the attached documentary and object evidence and establish their authenticity in accordance with the Rules of Court;

5. The signature of the witness over his printed name; and

6. A jurat with the signature of the notary public who administers the oath or an officer who is authorized by law to administer the same.

A judicial affidavit shall be prepared in the language known to the witness and, if not in English or Filipino, it shall be accompanied by a translation in English or Filipino.

Effect of non-compliance with Sec 3 requirements: The court will not admit it in evidence if it does not comply with the content requirements. (Sec 10[c])

However, the court may, allow only once the subsequent submission of the compliant replacement affidavits before the hearing or trial provided:

1. The delay is for a valid reason and would not unduly prejudice the opposing party

2. that public or private counsel responsible for their preparation and submission pays a fine of not less than P 1,000.00 nor more than P 5,000.00, at the discretion of the courts

Sworn Attestation of the lawyerThe judicial affidavit shall also contain a sworn attestation by the lawyer who conducted and supervised the examination, at the end. The swornaaaaaaa attest attestation shall attest:

attestation shall attest: (1) He faithfully recorded or caused to be recorded the questions he asked and the corresponding answers that the witness gave; and

(2) Neither he nor any other person then present or assisting him coached the witness regarding the latter's answers.

Effect of false attestation by lawyer: The lawyer may be subjected to disciplinary action, including disbarment. (Sec. 4[b])

Filing and service of the judicial affidavit and exhibits

1. The parties shall file with the court and serve on the adverse party, personally or

by licensed courier service, not later than five days before pre-trial or preliminary conference or the scheduled hearing with respect to motions and incidents (Sec 2[a])

2. Filing of the judicial affidavit and its attached exhibits shall be done personally or by licensed courier service. (Sec 2[a])

3. In criminal cases, the prosecution shall submit the judicial affidavits of its witnesses not later than five days before the pre-trial, serving copies if the same upon the accused. (Sec 9[b])

4. If the accused desires to be heard on his defense after receipt of the judicial affidavits of the prosecution, he shall have the option to submit his judicial affidavit as well as those of his witnesses to the court within ten days from receipt of such affidavits and serve a copy of each on the public and private prosecutor, including his documentary and object evidence previously marked. (Sec 9[c])

Effects of failure to submit the judicial affidavits and exhibits on timeA party who fails to submit the required judicial affidavits and exhibits on time shall be deemed to have waived their submission (Sec 10[a])

Remedy in case of late submissionThe court may, however, allow only once the late submission provided

1. the delay is for a valid reason, 2. the delay would not unduly prejudice

the opposing party, and 3. the defaulting party pays a fine of

not less than P 1,000.00 nor more than P 5,000.00 at the discretion of the court.

Offer of testimony in Judicial AffidavitThe party presenting the judicial affidavit of his witness in place of direct testimony shall state the purpose of such testimony at the start of the presentation of the witness. (Sec 6)

Objections to testimony in the judicial affidavit

1. The adverse party may move to disqualify the witness or to strike out his affidavit or any of the answers found in it on ground of inadmissibility. (Sec 6)

2. The court shall promptly rule on the motion and, if granted, shall cause the marking of any excluded answer by placing it in brackets under the initials of an authorized court personnel, without prejudice to a tender of excluded evidence under Section 40 of Rule 132 of the Rules of Court.

Appearance of the witness at the scheduled hearing

1. The rule still requires the appearance of the witness at the scheduled hearing. (Sec 10[b])

2. The adverse party shall have the right to cross-examine the witness on his judicial affidavit and on the exhibits attached to the same. (Sec 7)

3. The party who presents the witness may also examine him as on re-direct. In every case, the court shall take active part in examining the witness to determine his credibility as well as the truth of his testimony and to elicit the answers that it needs for resolving the issues. (Sec 7)

Effect of failure of a witness to appear1. The court shall not consider the affidavit

of any witness who fails to appear at the scheduled hearing of the case as required. Counsel who fails to appear without valid cause despite notice shall be deemed to have waived his client's right to confront by cross-examination the witnesses there present. (Sec 10 [b])

When issuance of a subpoena is needed The requesting party may avail himself of the issuance of a subpoena ad testificandum or duces tecum under Rule 21 of the Rules of Court if:

1. the government employee or official, or the requested witness, who is neither the witness of the adverse party nor a hostile witness,

a. unjustifiably declines to execute a judicial affidavit

b. refuses without just cause to make the relevant books, documents, or other things under his control available for copying, authentication, and eventual production in court

Oral offer and objections to exhibits 1. Upon the termination of the testimony of

his last witness, a party shall immediately make an oral offer of evidence of his documentary or object exhibits, piece by piece, in their chronological order, stating the purpose or purposes for which he offers the particular exhibit. (Sec 8[a])

2. After each piece of exhibit is offered, the adverse party shall state the legal ground for his objection, if any, to its admission, and the court shall immediately make its ruling respecting that exhibit. (Sec 8[b])

SEC 35, RULE 132 JUDICIAL AFFIDAVIT RULE

Allows the offer to be made in writing

Allows the offer to be made orally

(RIANO, Evidence, 2013)

OPINION RULE

GENERAL RULE

OPINION EVIDENCE

It is the statement by the witness of an inference as to the existence or nonexistence of a fact in issue based upon other facts presented directly to the senses of the witness.

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

Exceptions:1. Opinion of expert witness (Section 49, Rule 130 of the Rules of Court)2. Opinion of ordinary witness (Section 50, Rule 130 of the Rules of Court)

OPINION OF EXPERT WITNESSThe opinion of a witness on a matter requiring special knowledge, skill, experience or training which he shown to possess, may be received in evidence

EXPERT

A person who is so qualified either by actual experience or by careful study as to enable him to form a definite opinion of his own respecting any division of science, art, or trade about which persons having no particular training are incapable of forming accurate opinions or of deducing correct conclusions.

EXPERT EVIDENCE

It is the testimony of persons who are particularly killed, or experienced in a particular art, science, trade, business, profession, or vocation, a thorough knowledge of which is not possessed b man in general, in regard to matters connected therewith.

Rules on Examination of Expert Witness1. If opinion based on facts known personally – the expert witness must first state the facts before giving an opinion on the facts.2. If opinion based on facts of which expert has no personal knowledge – the facts should be given to the expert hypothetically, that is, they must assume facts upon which his opinion is desired.

Scientific study and training are not always essential to the competency of a witness as an expert. A witness may be competent to testify as an expert although his knowledge was acquired through the medium of practical experience rather than scientific study and research. Dilag v. Merced [45 O.G. 5536, (1949)]

Probative Value of Expert TestimonyThe court is not bound by the opinion of an expert such as a handwriting expert. Expert opinion evidence is to be considered or weighed by the court, like any other testimony, in light of its own general knowledge and experience upon the subject of inquiry. (RIANO, Evidence, p. 489 citing Dizon v Tuazon, 557 SCRA 487)

OPINION OF ORDINARY WITNESSES

The Opinion of a Witness for Which Proper Basis is Given, May be Received in Evidence Regarding:

1. The identity of a person about whom he has adequate knowledge2. A handwriting with which he has sufficient familiarity; and3. 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.

Proper Basis or Predicate Must First be Established

1. Adequate knowledge– if ordinary witness is to testify as to identity. 2. Sufficient familiarity – if ordinary witness is to testify as to handwriting.3. Sufficient acquaintance – if ordinary witness is to testify as to mental sanity.

An ordinary witness cannot given an opinion as to the mental sanity of a person based in whole or in part upon an abstract hypothetical question, but must base his opinion solely upon his own personal knowledge, observation, or acquaintance.

CHARACTER EVIDENCE

CHARACTER EVIDENCE NOT GENERALLY ADMISSIBLE; EXCEPTIONS

CHARACTER

The possession by a person of certain qualities of mind or morals, distinguishing him from others.

Distinguish Character from Reputation

CHARACTER REPUTATIONAggregate of the moral qualities which belong to and distinguish an individual person

Depends on attributes which others believe one to possess (RIANO, Evidence, p. 491-492)

General Rule: Character is not admissible in evidence (Sec 51, Rule 30 of the Rules of Court)

Reason: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. (RIANO, Evidence, p. 492 citing People v Lee, 382 SCRA 596)

Exceptions:

a) Criminal Cases (Section 51(a), Rule 130 of the Rules of Court)

1. As to the character of the accused –a) The accused may prove his good moral character, which is pertinent to the moral trait involved in the offense charged.

For example, the Accused in a murder case may present evidence that he has a reputation for being a peaceful person.

b) The prosecution may prove his bad moral character pertinent to the moral trait involved in the offense charged in rebuttal.

In rebuttal, the prosecution may present evidence that the Accused has a reputation for being a quarrelsome person,

2. As to the Character of the Offended Party –The good or bad moral character of the offended party may be proved if it tends to establish in any reasonable degree the probability or improbability of the offense charged.

For example, in a murder case, the Accused, invoking self-defense, can present evidence that the offended party (the victim) was of a quarrelsome disposition.

b) Civil Cases (Section 51(b), Rule 130 of the Rules of Court)

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.

General Rule: the moral character of a party to a civil case is not a proper subject of inquiry.

Exception: in cases where, because of the nature of the action, the character of a party becomes a matter in issue.

RULE ON EXAMINATION OF A CHILD WITNESS

(AM NO. 04-07-SC)

Applicability of the Rule (Section 1)

Unless otherwise provided, this Rule shall govern the examination of child witnesses who are:

1. victims of a crime 2. accused of a crime, and 3. witnesses to a crime.

It shall apply in all criminal proceedings and non-criminal proceedings involving child witnesses.

Meaning of “Child Witness” (Section 2(a))

A child witness is:1. Any person who at the time of giving testimony is below the age of 18 years.

2. In child abuse cases, a child includes one who is over 18 years but is found by the court as unable to fully take care of himself/herself, or protect himself/herself from abuse, neglect, cruelty, exploitation, or discrimination because of a physical or mental disability or condition.

Note: Observe that whether or not a person is a child witness is determined as of the time of the giving of the testimony. (RIANO, Evidence, p. 497)

Competency of a Child Witness (Section 6)

Presumption of CompetencyEvery child is presumed qualified to be a witness.

Competency ExaminationNotwithstanding the presumption, the court shall conduct a competency examination of a child, motu proprio or on motion of a party, when it finds that substantial doubt exists regarding the ability of the child to perceive, remember, communicate, distinguish truth from falsehood, or appreciate the duty to tell the truth in court.

Who Conducts Competency ExaminationExamination of a child as to his/her competence shall be conducted only by the judge. Counsel for the parties, however, can submit questions to the judge that he/she may, in his/her discretion, ask the child.

The court has the duty of continuously assessing the competence of the child throughout his testimony.

Who must Prove Necessity of Competency ExaminationA party seeking a competency examination must present proof of necessity of competency of examination. The age of the child by itself is not a sufficient basis for a competency examination.

To rebut the presumption of competence enjoyed by a child, the burden of proof lies on the party challenging his/her competence.

Who May Attend Competency ExaminationOnly the following are allowed to attend a competency examination:

1. The judge and necessary court personnel;2. The counsel for the parties;3. The guardian ad litem;4. One or more support persons for the child; and5. The defendant, unless the court determines that competence can be fully evaluated in his/her absence.

Nature of Questions Asked in the Competency ExaminationThe questions asked at the competency examination shall be:

1. appropriate to the age and developmental level of the child;

2. shall not be related to the issues at trial; and

3. shall focus on the ability of the child to a. remember, b. communicate, c. distinguish between truth and

falsehood, and

d. appreciate the duty to testify truthfully.

Examination of a Child Witness (Section 8)

Examination Done in Open CourtThe examination of a child witness presented in a hearing of any proceeding shall be done in open court. Unless the witness is incapacitated to speak or the question calls for a different mode of answer, the answers of the witness shall be given orally.

The party who presents a child witness or the guardian ad litem of such child witness may, however, move the court to allow the child to testify in the manner provided in this Rule. Live-Link TV Testimony of a Child Witness (Section 25)

Live-Link TV Testimony It is when the testimony of the child is taken in a room outside the courtroom and be televised to the courtroom by live-link television.

Who May Apply 1. The prosecutor, 2. counsel or 3. the guardian ad litem

Need to Consult Prosecutor or Counsel

Before the guardian ad litem applies for an order under this section, he/she shall consult the prosecutor or counsel and shall defer to the judgment of the prosecutor or counsel regarding the necessity of applying for an order.

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

Period to ApplyThe person seeking such an order shall apply at least five (5) days before the trial date, unless the court finds on the record that the need for such an order was not reasonably foreseeable.

The court may motu proprio hear and determine, with notice to the parties, the need for taking the testimony of the child through live-link television.

Where Live-Link TV Testimony Taken

The judge may question the child in chambers, or in some comfortable place other than the courtroom, in the presence of the support person, guardian ad litem, prosecutor, and counsel for the parties.

The questions of the judge shall not be related to the issues at trial but to the feelings of the child about testifying in the courtroom.

The judge may exclude any person, including the accused, whose presence or conduct causes fear to the child.When it may be approvedThe court may order that the testimony of the child be taken by live-link television if there is a substantial likelihood that the child would suffer trauma from testifying in the presence of the accused, his/her counsel or the prosecutor as the case may be. The trauma must be of a kind, which would impair the completeness or truthfulness of the testimony of the child.

Factors to Consider in Granting or Denying a Request For Live-Link TV Testimony

The court shall issue an order granting or denying the use of live-link television and stating the reasons therefor. It shall consider the following factors:

1. The age and level of development of the child;2. His physical and mental health, including any mental or physical disability;3. Any physical, emotional, or psychological injury experienced by him;4. The nature of the alleged abuse;5. Any threats against the child;6. His relationship with the accused or adverse party;7. His reaction to any prior encounters with the accused in court or elsewhere;

8. His reaction prior to the trial when the topic of testimony was discussed with him/her by parents or professionals;9. Specific symptoms of stress exhibited by the child in the days prior to testifying;10. Testimony of expert or lay witnesses;11. The custodial situation of the child and the attitude of the members of his/her family regarding the events about which he/she will testify; and12. Other relevant factors, such as court atmosphere and formalities of court procedure.

Rules in Taking Testimony by Live-Link TelevisionIf the court orders the taking of testimony by live-link television:

1. The child shall testify in a room separate from the courtroom in the presence of the guardian ad litem; one or both of his/her support persons; the facilitator and interpreter, if any; a court officer appointed by the court; persons necessary to operate the closed-circuit television equipment; and other persons whose presence are determined by the court to be necessary to the welfare and well-being of the child.2. The judge, prosecutor, accused, and counsel for the parties shall be in the courtroom. The testimony of the child shall be transmitted by live-link television into the courtroom for viewing and hearing by the judge, prosecutor, counsel for the parties, accused, victim, and the public unless executed.3. If it is necessary for the child to identify the accused at trial, the court may allow the child to enter the courtroom for the limited purpose of identifying the accused, or the court may allow the child to identify the accused by observing the image of the latter on a television monitor.4. The court may set other conditions and limitations on the taking of the testimony that it finds just and appropriate, taking into consideration the best interests of the child.

Preservation of Child’s Testimony:

The testimony of the child shall be preserved on videotape, digital disc, or other similar devices

which shall be made part of the court record and shall be subject to a protective order.

Videotaped Deposition of a Child Witness (Section 27)

Who May Apply for Videotaped DepositionThe prosecutor, counsel or guardian ad litem may apply for an order that a deposition be taken of the testimony of the child and that it be recorded and preserved on videotape.

Before the guardian ad litem applies for an order, he/she shall consult with the prosecutor or counsel.

When order for Videotaped Deposition IssuedIf the court finds that the child will not be able to testify in open court at trial, it shall issue an order that the deposition of the child be taken and preserved by videotape.

Who Shall Preside Over Videotaped DepositionThe judge shall preside at the videotaped deposition of a child.

Rule on Objections to Videotaped DepositionObjections to deposition testimony or evidence, or parts thereof, and the grounds for the objection shall be stated and shall be ruled upon at the time of the taking of the deposition.

Persons Who May Be Permitted in Videotaped DepositionThe other persons who may be permitted to be present at the proceedings are:

1. The prosecutor;2. The defense counsel;3. The guardian ad litem;4. The accused;5. Other persons whose presence is determined by the court to be necessary to the welfare and well-being of the child;6. One or both of his/her support persons, the facilitator and interpreter, if any;7. The court stenographer; and8. Persons necessary to operate the videotape equipment.

Rights of the Accused Not to be ViolatedThe rights of the accused during trial, especially the right to counsel and to confront and cross-examine the child, shall not be violated during the deposition.

Exclusion of Accused in Videotaped DepositionIf the order of the court is based on evidence that the child is unable to testify in the physical presence of the accused, the court may direct the latter to be excluded from the room in which the deposition is conducted. In case of exclusion of the accused, the court shall order that the testimony of the child be taken by live-link television in accordance with section 25 of this Rule. If the accused is excluded from the deposition, it is not necessary that the child be able to view an image of the accused.

Best Interests of the Child Taken Into ConsiderationThe court may set other conditions on the taking of the deposition that it finds just and appropriate, taking into consideration the best interests of the child, the constitutional rights of the accused, and other relevant factors.

Admissibility of Videotaped Deposition When Child Unable to TestifyIf, at the time of trial, the court finds that the child is unable to testify, the court may admit into evidence the videotaped deposition of the child in lieu of his testimony at the trial. The court shall issue an order stating the reasons therefor.

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

Preservation of videotaped depositionThe videotaped deposition shall be preserved and stenographically recorded and be subjected to protective order.

Hearsay Exception in Child Abuse Cases (Section 28)

A statement made by a child describing any act or attempted act of child abuse, not otherwise admissible under the hearsay rule, may be admitted in evidence in any criminal or non-criminal proceeding subject to the following rules:

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

2. In the ruling on the admissibility of such hearsay statement, the court shall consider the time, content and circumstances thereof which provide sufficient indicia of reliability. It shall consider the following factors:

a) Whether there is a motive to lie;b) The general character of the declarant child;c) Whether more than one person heard the statement;d) Whether the statement was spontaneous;e) The timing of the statement and the relationship between the declarant child and witness;f) Cross-examination could not show the lack of knowledge of the declarant child;g) The possibility of faulty recollection of the declarant child is remote; andh) The circumstances surrounding the statement are such that there is no reason to suppose the declarant child misrepresented the involvement of the accused.

3. The child witness shall be considered unavailable under the following situations:

a) Is deceased, suffers from physical infirmity, lack of memory, mental illness, or will be exposed to sever psychological injury; orb) Is absent from the hearing and the proponent of his/her statement has been unable to procure his/her attendance by process or other reasonable means.

4. When the child witness is unavailable, his/her hearsay testimony shall be admitted only if corroborated by other admissible evidence.

Sexual Abuse Shield Rule (Section 30)

The Following Evidence is NOT ADMISSIBLE in Any Criminal Proceeding Involving Alleged Child Sexual Abuse1. Evidence offered to prove that the alleged victim engaged in other sexual behavior; and2. Evidence offered to prove the sexual predisposition of the alleged victim.

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

A party intending to Offer Such Evidence Must:1. File a written motion at least 15 days

before trial, specifically describing the evidence and stating the purpose for which it is offered, unless the court, for good cause, requires a different for filing or permits filing during trial; and

2. Serve the motion on all parties and the guardian ad litem at least three days before the hearing of the motion.

Before admitting such evidence, the court must conduct a hearing in chambers and afford the child, his/her guardian ad litem, the parties, and their counsel a right to attend and be heard. The motion and the record of the hearing must be sealed and remain under seal and protected by a protective order set forth in section 31(b). The

child shall not be required to testify at the hearing in chambers except with his/her consent.

Protective Orders (Section 31)Any videotape or audiotape of a child that is part of the court record shall be under a protective order that provides as follows:

1. Tapes may be viewed only by parties, their counsel, their expert witness, and the guardian ad litem.

2. No tape, or any portion thereof, shall be divulged to any other person, except as necessary for the trial.

3. No person shall be granted access to the tape, its transcription or any part thereof unless he/she signs a written affirmation that he/she has received and read a copy of the protective order; that he/she submits to the jurisdiction of the court with respect to the protective order; and that in case of violation thereof, he/she will be subject to the contempt power of the court.

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

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

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

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

The court may, motu proprio or on motion of any party, the child, his/her parents, legal guardian, or the guardian ad litem, issue additional orders to protect the privacy of the child.

OFFER OF EVIDENCEThe court shall consider no evidence which has not been formally offered. The purpose for which the evidence is offered must be specified.

Exceptions: 1. Evidence not formally offered can be

considered by the court as long as they have been properly identified by testimony duly recorded and

2. They have themselves been incorporated in the records of the case. (People v Libnao, G.R. No. 13860, January 20, 2003)

Purpose of OfferFormal offer is necessary because it is the duty of the judge to rest his findings of facts and his judgment only and strictly upon the evidence offered by the parties at the trial.

The purpose for which the 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.

NOTE: A party who has introduced evidence is NOT

entitled as a matter of right to withdraw it on finding that it does not answer his purpose.

The Identification and Formal Offer Distinguished:1. IDENTIFICATION – Identification of the evidence is made in the course of the trial and

marked as exhibits. Any objection made at this stage is premature.2. FORMAL OFFER – it is only when the proponent rests his case and formally offers the evidence that an objection thereto may be made.

NOTE: A party has the option of not offering into

evidence the evidence identified at the trial and marked as an exhibit.

The mere fact that a particular document is identified and marked as an exhibit does not mean it will be or has been offered as part of the evidence of the party. The party may decide to formally offer it if it believes this will advance its cause, and then again it may decide not to do so at all. Interspecific Transit v. Aviles, [186 SCRA 385, G.R. No. 86062, June 6, 1990]

WHEN TO MAKE OFFERTESTIMONIAL

EVIDENCEDOCUMENTARY AND

OBJECT EVIDENCE

The offer must be made at the time the witness is called to testify.

It shall be offered after the presentation of a party’s testimonial evidence.

Such offer shall be done orally unless allowed by the court to be done in writing.

OBJECTIONPurposes of Objections:

1. To keep out inadmissible evidence that would cause harm to a client’s cause. The rules of evidence are not self-operating and hence, must be invoked by way of an objection.

2. To protect the record, i.e. to present the issue of inadmissibility of the offered evidence in a way that if the trial court rules erroneously, the error can be relied upon as a ground for a future appeal;

3. To protect a witness from being embarrassed on the stand or from being harassed by the adverse counsel

4. To expose the adversary’s unfair tactics like his consistently asking obviously leading questions

5. To give the trial court an opportunity to correct its own errors and, at the same time, warn the court that a ruling adverse to the objector may supply a reason to invoke a higher court’s appellate jurisdiction; and

6. To avoid a waiver of the inadmissibility of an otherwise inadmissible evidence. (RIANO, Evidence, p. 517-518)

Purpose: to stop an answer to a question put to a witness or to prevent the receipt of a document in evidence until the court has had opportunity to make a ruling upon its admissibility

Rules on Objections (Section 36, Rule 132 of the Rules of Court)1. As to evidence offered orally – objection must be made immediately after the offer is made.2. As to evidence offered in writing – objection shall be made within three (3) days after notice of the offer unless a different period is allowed by the court.3. As to questions propounded in the course of the oral examination– objection shall be made as soon as the grounds therefor shall become reasonably apparent.

In any case, the grounds for the objections must be specified.

An objection to evidence cannot be made in advance of the offer of the evidence sought to be introduced.

The right to object is a mere privilege which the parties may waive. And if the ground for objection is known and not seasonably made, the objection is deemed waived and the court has no power, on its own motion, to disregard the evidence. People v. Yatco, [97 Phil. 940, G.R. No. L-9181, N ovember 28, 1955]

WHEN WHEN IT MAY BE

OFFERED OBJECTED

Object evidence

When the same is presented for its view or evaluation, as in ocular inspection or demonstra-tions, or when the party rests his case and the real evidence consists of objects exhibited in court.

Should be made either at the time it is presented in an ocular inspection or demonstrations or when it is formally offered

Testimonial evidence

When witness is called to the witness stand, before he/she testifies

As to the qualification of the witness – should be made at the time he is called to the stand and immediately after the opposing party offers his/her testimony.If otherwise qualified - objection should be raised when the objectionable question is asked or after the answer is given if the objectionable features became apparent by reason of such answer.

Documentary evidence

Formally offered by the proponent after the presentation

At the time it is formally offered.

of his/her last witness and before he rests his case.

WHEN REPETITION OF OBJECTION UNNECESSARYRule on Repetition of Objection

General Rule:

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

When Reason For Ruling Must be Stated1. The reason for sustaining or overruling an objection need not be stated. 2. If the objection is based on two or more grounds, a ruling sustaining the objection on one or some of them must specify the ground or grounds relied upon.

NOTE: The rulings of the trial court on procedural

questions and on admissibility of evidence during the course of a trial are interlocutory in nature and may not be the subject of separate appeals or review on certiorari. These are to be assigned as errors and reviewed in the appeal taken from the trial court on the merits of the case.

STRIKING OUT ANSWER

General Rule: An objection to questions propounded in the course of oral examination must be interposed as soon as the ground(s) become evident. Failure to interpose a timely objection may be taken as a waiver of the right to object and the answer will be admitted.

Exceptions: A motion to strike out the answer is available as a remedy where:

1. A witness answers a question after an objection has been sustained;2. The irrelevance of the evidence becomes apparent only after an objection has been overruled; 3. Where a witness answers a question before an attorney can object.

An Answer May be Stricken Off the Record By:

1. Upon the court’s own motion – Should a witness answer the question before the adverse party had the opportunity to voice fully its objection to the same, and such objection is found to be meritorious, the court shall sustain the objection and order the answer given to be stricken off the record.2. On motion of party – The court may also order the striking out of answers which are incompetent, irrelevant, or otherwise improper.

TENDER OF EXCLUDED EVIDENCE

Where the court refuses to permit the counsel to present testimony which he thinks is competent, material and necessary to prove his case, the method to properly preserve the record to the end that the question may be saved for the purposes of review, is through the making of an offer of proof.

Purpose:1. To inform the court what is expected to be proved.2. So that a higher court may determine from the record whether the proposed evidence is competent.

Rule on Tender of Excluded Evidence

1.If the excluded evidence is documentary or object - the offeror may have the same attached to or made part of the record.2. 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.