D.

Documentary evidence Rule 130, Sec. 2

Two categories: Writings Any other material containing modes of written expressions. Must be offered as proof of their contents to be deemed documentary evidence If offered for some other purpose object evidence

1. 2. 3.

Meaning of documentary evidence Requisites for admissibility

Best Evidence Rule Rule 130, Sec. 3 - Misnomer because not intended to mean the most superior evidence, merely original document rule; primary evidence rule - The rule requiring that the original of a writing must, as a general proposition, be produced. - Not applicable when the issue does not involve the contents of a writing - Reason: to prevent fraud or mistake in the proof of the contents of a writing Requisites: The subject matter must involve a docment; and The subject of the inquiry is the contents of the document. When document is merely collaterally in issue, rule does not apply o Collateral when the purpose of introducing the document is not to establish its terms but to show facts that have no reference to its contents like its existence, condition, execution or delivery - As long as the original evidence can be had, the court shouldnot receive in evidence that which is substantiary in nature such as photocopies, in the absence of any clear showing that the original writing has been lost or destroyed or cannot be produced in court. Such photocopies must be disregarded. - May be waived if not raised in the trial o Secondary evidence becomes primary evidence o Probative value must still meet the various tests by which its reliability is to be determined Admissibility not to be confused with probative value What if original Ebreo v. Ebreo, G.R. No. 160065, February 28, 2006, 483 SCRA 583

The best evidence rule, applied to documentary evidence, operates as a rule of exclusion, that is, secondary (or substitutionary) evidence cannot inceptively be introduced as the original writing itself must be produced in court, except in the four instances mentioned in Section 3. (Regalado, Remedial Law Compendium, Volume II, Seventh Revised Edition, p. 555). Defendant-appellants miserably failed to prove that their case is included among the exceptions to the Rule. The testimony of Felino Ebreo regarding the execution of the Deed of Sale cannot be given credence. In fact, it was contradicted by his supposed co-sellers and co-owners. His claim that it was borrowed by Eleuteria Cueto and never returned to him was also refuted by Eleuteria Cueto. Not only are the testimonies of Felino Ebreo and his son Antonio Ebreo self-serving, they are also uncorroborated by independent witnesses. Defendant-appellants did not even look for a copy of the deed of sale on the notarial registry of Atty. Chavez, the notary public who allegedly notarized the deed of sale. Neither did they look for a copy in the archives of the Court where it should have been submitted as required by the notarial law. In the words of the trial court, "the decisive documentary evidence remains an elusive phantom and conspicuously unproven." The controversial deed of sale not having been produced as required by the rules of evidence, the trial court was correct in ruling that Santiago Puyo acquired no rights whatsoever to Lot No. 9046-F.

The Consolidated Bank and Trust Corp. v. Del Monte Motor Works, G.R. No. 143338, July 29, 2005, 465 SCRA 117 Bearing in mind that the risk of mistransmission of the contents of a writing is the justification for the best evidence rule, we declare that this rule finds no application to this case . It should be noted that

respondents never disputed the terms and conditions of the promissory note thus leaving us to conclude that as far as the parties herein are concerned, the wording or content of said note is clear enough and leaves no room for disagreement. In their responsive pleadings, respondents principal defense rests on the alleged lack of consideration of the promissory note. In addition, respondent Morales also claims that he did not sign the note in his personal capacity. These contentions clearly do not question the precise [33] wording of the promissory note which should have paved the way for the application of the best evidence rule. Besides, the best evidence rule as stated in our Revised Rules of Civil Procedure is not absolute. As quoted earlier, the rule accepts of exceptions one of which is when the original of the subject document is in the possession of the adverse party. As pointed out by petitioner in its motion to inhibit, had it been given the opportunity by the court a quo, it would have sufficiently established that the original of Exhibit A was in the possession of respondents which would have called into applic ation one of the exceptions to the best evidence rule. Significantly, and as discussed earlier, respondents failed to deny specifically the execution of the promissory note. This being the case, there was no need for petitioner to present the original of the promissory note in question. Their judicial admission with respect to the genuineness and execution of the promissory note sufficiently established their liability to petitioner regardless of the fact that petitioner [34] failed to present the original of said note. Citibank, N.A. v. Sabeniano, G.R. No. 156132, October 12, 2006, 504 SCRA 378 This Court did not violate the best evidence rule when it considered and weighed in evidence the photocopies and microfilm copies of the PNs, MCs, and letters submitted by the petitioners to establish the existence of respondents loans. The terms or contents of these documents were never the point of contention in the Petition at bar. It was respondents position that the PNs in the first set (with the exception of PN No. 34534) never existed, while the PNs in the second set (again, excluding PN No. 34534) were merely executed to cover simulated loan transactions. As for the MCs representing the proceeds of the loans, the respondent either denied receipt of certain MCs or admitted receipt of the other MCs but for another purpose. Respondent further admitted the letters she wrote personally or through her representatives to Mr. Tan of petitioner Citibank acknowledging the loans, except that she claimed that these letters were just meant to keep up the ruse of the simulated loans. Thus, respondent questioned the documents as to their existence or execution, or when the former is admitted, as to the purpose for which the documents were executed, matters which are, undoubtedly, external to the documents, and which had nothing to do with the contents thereof.

Alternatively, even if it is granted that the best evidence rule should apply to the evidence presented by petitioners regarding the existence of respondents loans, it should be borne in mind that the rule admits of the following exceptions under Rule 130, Section 5 of the revised Rules of Court SEC. 5. When the original document is unavailable. When the original document has been lost or destroyed, or cannot be produced in court, the offeror, upon proof of its execution or existence and the cause of its unavailability without bad faith on his part, may prove its contents by a copy, or by a recital of its contents in some authentic document, or by the testimony of witnesses in the order stated.

The execution or existence of the original copies of the documents was established through the testimonies of witnesses, such as Mr. Tan, before whom most of the documents were personally executed by respondent. The original PNs also went through the whole loan booking system of petitioner Citibank from the account officer in its Marketing Department, to the pre-processor, to the signature verifier, back to the pre-processor, then to the processor for booking.
[117]

The original PNs were seen by

Ms. Dondoyano, the processor, who recorded them in the General Ledger. Mr. Pujeda personally saw

the original MCs, proving respondents receipt of the proceeds of her loans from petitioner Citibank, when he helped Attys. Cleofe and Fernandez, the banks legal counsels, to reconstruct the records of respondents loans. The original MCs were presented to Atty. Cleofe who used the same during the preliminary investigation of the case, sometime in years 1986-1987. The original MCs were subsequently turned over to the Control and Investigation Division of petitioner Citibank.
[118]

It was only petitioner FNCB Finance who claimed that they lost the original copies of the PNs when it moved to a new office. Citibank did not make a similar contention; instead, it explained that the original copies of the PNs were returned to the borrower upon liquidation of the loan, either through payment or roll-over. Petitioner Citibank proffered the excuse that they were still looking for the documents in their storage or warehouse to explain the delay and difficulty in the retrieval thereof, but not their absence or loss. The original documents in this case, such as the MCs and letters, were destroyed and, thus, unavailable for presentation before the RTC only on 7 October 1987, when a fire broke out on the 7 floor of the office building of petitioner Citibank. There is no showing that the fire was intentionally set. The fire destroyed relevant documents, not just of the present case, but also of other cases, since the 7 floor housed the Control and Investigation Division, in charge of keeping the necessary documents for cases in which petitioner Citibank was involved. The foregoing would have been sufficient to allow the presentation of photocopies or microfilm copies of the PNs, MCs, and letters by the petitioners as secondary evidence to establish the existence of respondents loans, as an exception to t he best evidence rule. Country Bankers Insurance Corp. v. Lagman, G.R. No. 165487, July 13, 2011, 653 SCRA 765 We see the point. Lagman presented a mere photocopy of the 1990 Bond. We rule as inadmissible such copy. Before a party is allowed to adduce secondary evidence to prove the contents of the original, the offeror must prove the following: (1) the existence or due execution of the original; (2) the loss and destruction of the original or the reason for its non-production in court; and (3) on the part of the offeror, the absence of bad faith to which the unavailability of the original can be attributed. The correct order of [28] proof is as follows: existence, execution, loss, and contents. In the case at bar, Lagman mentioned during the direct examination that there are actually four (4) duplicate originals of the 1990 Bond: the first is kept by the NFA, the second is with the Loan Officer of [29] the NFA in Tarlac, the third is with Country Bankers and the fourth was in his possession. A party must first present to the court proof of loss or other satisfactory explanation for the non-production of the [30] original instrument. When more than one original copy exists, it must appear that all of them have been lost, destroyed, or cannot be produced in court before secondary evidence can be given of any [31] one. A photocopy may not be used without accounting for the other originals. Atienza v. Board of Medicine, G.R. No. 177407, February 9, 2011, 642 SCRA 523 The subject of inquiry in this case is whether respondent doctors before the BOM are liable for gross negligence in removing the right functioning kidney of Editha instead of the left non-functioning kidney, not the proper anatomical locations of Edithas kidneys. As previously discussed, the proper anatomical locations of Edithas kidneys at the time of her operation at the RMC may be established not only through the exhibits offered in evidence. Finally, these exhibits do not constitute hearsay evidence of the anatomical locations of Edithas kidneys. To further drive home the point, the anatomical positions, whether left or right, of Edithas kidneys, and the removal of one or both, may still be established through a belated ultrasound or x-ray of her abdominal area.
th th

In fact, the introduction of secondary evidence, such as copies of the exhibits, is allowed.
[15]

Witness Dr. Nancy Aquino testified that the Records Office of RMC no longer had the originals
[16]

of the exhibits because [it] transferred from the previous building, x x x to the new building. thereafter, the BOM shall determine the probative value thereof when it decides the case. Republic v. Marcos-Manotoc, G.R. No. 171701, February 8, 2012, 665 SCRA 367

Ultimately,

since the originals cannot be produced, the BOM properly admitted Edithas formal offer of evidence and,

The fact that these documents were collected by the PCGG in the course of its investigations does not make them per se public records referred to in the quoted rule. Petitioner presented as witness its records officer, Maria Lourdes Magno, who testified that these public and private documents had been gathered by and taken into the custody of the PCGG in the course of the Commissions investigation of the alleged ill-gotten wealth of the Marcoses. However, given the purposes for which these documents were submitted, Magno was not a credible witness who could testify as to their contents. To reiterate, [i]f the writings have subscribing witnesses to them, they must be proved by those witnesses. Witnesses can testify only to those facts which are of their personal [35] knowledge; that is, those derived from their own perception. Thus, Magno could only testify as to how she obtained custody of these documents, but not as to the contents of the documents themselves. Neither did petitioner present as witnesses the affiants of these Affidavits or Memoranda submitted to the court. Basic is the rule that, while affidavits may be considered as public documents if they are acknowledged before a notary public, these Affidavits are still classified as hearsay evidence. The reason for this rule is that they are not generally prepared by the affiant, but by another one who uses his or her own language in writing the affiant's statements, parts of which may thus be either omitted or misunderstood by the one writing them. Moreover, the adverse party is deprived of the opportunity to cross-examine the affiants. For this reason, affidavits are generally rejected for being hearsay, unless the [36] affiants themselves are placed on the witness stand to testify thereon. As to the copy of the TSN of the proceedings before the PCGG, while it may be considered as a public document since it was taken in the course of the PCGGs exercise of its mandate, it was not attested to by the legal custodian to be a correct copy of the original. This omission falls short of the requirement of Rule 132, Secs. 24 and 25 of the Rules of Court.

Further, again contrary to the theory of the plaintiff, the presentation of the originals of the aforesaid exhibits is not validly excepted under Rule 130, Section 3 (a), (b), and (d) of the Rules of Court. Under paragraph (d), when the original document is a public record in the custody of a public officer or is recorded in a public office, presentation of the original thereof is excepted. However, as earlier observed, all except one of the exhibits introduced by the plaintiff were not necessarily public documents. The transcript of stenographic notes (TSN) of the proceedings purportedly before the PCGG, the plaintiffs exhibit Q, may be a public document, but what was presented by the plaintiff was a mere photocopy of the purported TSN. The Rules provide that when the original document is in the custody of a public officer or is recorded in a public office, its contents may be proved by a certified copy issued by the public officer in custody thereof. Exhibit Q was not a certified copy and it was not even signed by the stenographer who supposedly took down the proceedings.

The rest of the above-mentioned exhibits cannot likewise be excepted under paragraphs (a) and (b) of Section 3. Section 5 of the same Rule provides that when the original documents has been lost or destroyed, or cannot be produced in court, the offeror, upon proof of its execution or existence and the cause of its unavailability without bad faith on his part, may prove its contents by a copy, or by a recital of its contents in some authentic document, or by the testimony of witnesses in the order stated. Thus, in order that secondary evidence may be admissible, there must be proof by satisfactory evidence of (1) due execution of the original; (2) loss, destruction or unavailability of all such originals and (3) reasonable diligence and good faith in the search for or attempt to produce the original. None of these requirements were complied with by the plaintiff. Similar to exhibit Q, exhibits P, R, S, and T were all photocopies. P, R, and T were affidavits of persons who did not testify before the Court. Exhibit S is a letter which is clearly a private document. Not only does it not fall within the exceptions of Section 3, it is also a mere photocopy. As We previously emphasized, even if originals of these affidavits were presented, they would still be considered hearsay evidence if the affiants do not testify and identify them Meaning of the rule

b.

When applicable

The rule cannot be invoked unless the contents of a writing is the subject of judicial inquiry, in which case the best evidence is the original writing itself. (ie precise wordings of the document)

c.

Meaning of original Rule 130, Sec. 4 Requisites: There must be entries made and repeated in the regular course of business; and The entries must be at or near the time of the transaction. d. Requisites for introduction of secondary evidence Rule 130, Sec. 5

Basis for Foundation: 1. The offeror must prove the execution and existence of the original document; 2. The offeror must show the cause of its unavailability; 3. The offeror must show that the unavailability was not due to his bad faith. Order of presentation of secondary evidence: 1. Copy of the original; 2. Recital of the contents of the document in some authentic document 3. Testimony of witnesses. the offeror of secondary evidence must prove the predicates thereof, namely: (a) the loss or destruction of the original without bad faith on the part of the proponent/offeror which can be shown by circumstantial evidence of routine practices of destruction of documents; (b) the proponent must prove by a fair preponderance of evidence as to raise a reasonable inference of the loss or destruction of the original copy; and (c) it must be shown that a diligent and bona fide but unsuccessful search has been made for the document in the proper place or places. It has been held that where the missing document is the foundation of the action, more strictness in proof 103 is required than where the document is only collaterally involved.

Rule 130, Sec. 6 Rule 130, Sec. 7 Rule 130, Sec. 8 Requisites if original is in the custody or control of the adverse party: r130s6 1. That the original exists; 2. That said document is under the custody or control of the adverse party; 3. That the proponent of secondary evidence has given the adverse party reasonable notice to produce the original document; and 4. That the adverse party failed to produce the original document despite the reasonable notice. Form: 1. 2. 3. 4. 4.

Motion for production of original Made in open court in the presence of the adverse party Subpoena duces tecum Provided that party has sufficient time to produce the same Rules on Electronic Evidence (A.M. No. 01-7-01-SC)

a. Meaning of electronic evidence; electronic data massage - refers to information generated, sent, received or stored by electronic, optical or similar means. "Electronic document" refers to 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. For purposes of these Rules, the term "electronic document" may be used interchangeably with "electronic data message".

b.

Probative value of electronic documents or evidentiary weight; method of proof

ELECTRONIC DOCUMENTS Section 1. Electronic documents 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. Section 2. Admissibility. 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 these Rules. Section 3. Privileged communication. The confidential character of a privileged communication is not lost solely on the ground that it is in the form of an electronic document. BEST EVIDENCE RULE Section 1. Original of an electronic document. 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. Section 2. Copies as equivalent of the originals. When a document is in two or more copies executed at or about the same time with identical contents, or 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. Notwithstanding the foregoing, copies or duplicates shall not be admissible to the same extent as the original if: (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. Rule EVIDENTIARY WEIGHT OF ELECTRONIC DOCUMENTS 7

Section 1. Factors for assessing evidentiary weight. In assessing the evidentiary weight of an electronic document, the following factors may be considered: (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; (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. Section 2. Integrity of an information and communication system. 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:

(a) 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; (b) 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 (c) 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. Rule METHOD OF PROOF 9

Section 1. Affidavit evidence. All matters relating to the admissibility and evidentiary weight of an electronic document may be established by an affidavit stating facts of direct personal knowledge of the affiant or based on authentic records. The affidavit must affirmatively show the competence of the affiant to testify on the matters contained therein. Section 2. 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.

c.

Authentication of electronic documents and electronic signatures

Section 1. 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. s2r5 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: (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. Section 2. 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: (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. Applies only when: Private electronic document The same is offered as an authentic document If not authenticated and offered simply for what it is, Sec20R132 applies

Section 3. 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. S2r5 does not apply Transformed into a public document and proved in accordance with the ROC s30r132

Section 2. Authentication of electronic signatures. An electronic signature may be authenticated in any of the following manner: (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. d. Electronic documents and the hearsay rule 8

Rule BUSINESS RECORDS AS EXCEPTION TO THE HEARSAY RULE

Section 1. Inapplicability of the hearsay rule. A memorandum, report, record or data compilation of acts, events, conditions, opinions, or diagnoses, made by electronic, optical or other similar means at or near the time of or from transmission or supply of information by a person with knowledge thereof, and kept in the regular course or conduct of a business activity, and such was the regular practice to make the memorandum, report, record, or data compilation by electronic, optical or similar means, all of which are shown by the testimony of the custodian or other qualified witnesses, is excepted from the rule on hearsay evidence. Section 2. Overcoming the presumption. The presumption provided for in Section 1 of this Rule 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.

e.

Audio, photographic, video and ephemeral evidence 11

Rule AUDIO, PHOTOGRAPHIC, VIDEO, AND EPHEMERAL EVIDENCE

Section 1. Audio, video and similar evidence. Audio, photographic and video evidence of events, acts or transactions shall be admissible provided it shall be shown, presented or displayed to the court and 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. Section 2. Ephemeral electronic communications. Ephemeral electronic communications 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. If the foregoing communications are recorded or embodied in an electronic document, then the provisions of Rule 5 shall apply.

Vidallon-Magtolis v. Salud, A.M. No. CA-05-20-P, September 9, 2005, 469 SCRA 439 The respondents claim that the admission of the text messages as evidence against him constitutes a violation of his right to privacy is unavailing. Text messages have been classified as ephemeral electronic communication under Section 1(k), Rule 2 of the Rules on Electronic Evidence,
[45]

and shall be proven by the testimony of a person who was a party to the same or has

personal knowledge thereof. Any question as to the admissibility of such messages is now moot and academic, as the respondent himself, as well as his counsel, already admitted that he was the sender of the first three messages on Atty. Madarangs cell phone.

Nuez v. Cruz-Apao, A.M. No. CA-05-18-P, April 12, 2005, 455 SCRA 288 Under Section 2, Rule 11 of the Rules on Electronic Evidence, Ephemeral electronic communications shall be proven by the testimony of a person who was a party to the same or who has personal knowledge thereof . . . . In this case, complainant who was the recipient of said messages and therefore had personal knowledge thereof testified on their contents and import. Respondent herself admitted that the cellphone number reflected in complainants cellphone from which the messages [66] originated was hers. Moreover, any doubt respondent may have had as to the admissibility of the text messages had been laid to rest when she and her counsel signed and attested to the veracity of the text [67] messages between her and complainant. It is also well to remember that in administrative cases, [68] technical rules of procedure and evidence are not strictly applied. We have no doubt as to the probative value of the text messages as evidence in determining the guilt or lack thereof of respondent in this case. NAPOCOR v. Judge Codilla, G.R. No. 170491, April 4, 2007, 520 SCRA 412

Petitioner insists that, contrary to the rulings of both the trial court and the appellate court, the photocopies it presented as documentary evidence actually constitute electronic evidence based on its own premise that an "electronic document" as defined under Section 1(h), Rule 2 of the Rules on Electronic Evidence is not limited to information that is received, recorded, retrieved or produced electronically. Rather, petitioner maintains that an "electronic document" can also refer to other modes of written expression that is produced electronically, such as photocopies, as included in the sections catch all proviso: "any print-out or output, readable by sight or other means". We do not agree. On the other hand, an "electronic document" refers to information or the representation of information, data, figures, symbols or other models 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 5 is received, recorded, transmitted, stored, processed, retrieved or produced electronically. It includes digitally signed documents and any printout, readable by sight or other means which accurately reflects 6 the electronic data message or electronic document. The rules use the word "information" to define an electronic document received, recorded, transmitted, stored, processed, retrieved or produced electronically. This would suggest that an electronic document is relevant only in terms of the information contained therein, similar to any other document which is 7 presented in evidence as proof of its contents. However, what differentiates an electronic document from a paper-based document is the manner by which the information is processed; clearly, the information contained in an electronic document is received, recorded, transmitted, stored, processed, retrieved or produced electronically. A perusal of the information contained in the photocopies submitted by petitioner will reveal that not all of the contents therein, such as the signatures of the persons who purportedly signed the documents, may be recorded or produced electronically. By no stretch of the imagination can a persons signature affixed manually be considered as information electronically received, recorded, transmitted, stored, processed, retrieved or produced. Hence, the argument of petitioner that since these paper printouts were produced through an electronic process, then these photocopies are electronic documents as defined in the Rules on Electronic Evidence is obviously an erroneous, if not preposterous, interpretation of the law. Having thus declared that the offered photocopies are not tantamount to electronic documents, it is consequential that the same may not be considered as the functional equivalent of their original as decreed in the law. Aznar v. Citibank, N.A. (Philippines), G.R. No. 164273, March 28, 2007, 519 SCRA 287 Aznar, who testified on the authenticity of Exh. "G," did not actually see the document executed or written, neither was he able to provide evidence on the genuineness of the signature or handwriting of Nubi, who handed to him said computer print-out. Even if examined under the Rules on Electronic Evidence, which took effect on August 1, 2001, and which is being invoked by Aznar in this case, the authentication of Exh. "G" would still be found wanting. Aznar claims that his testimony complies with par. (c), i.e., it constitutes the "other evidence showing integrity and reliability of Exh. "G" to the satisfaction of the judge." The Court is not convinced. Aznars testimony that the person from Ingtan Agency merely handed him the computer print-out and that he thereafter asked said person to sign the same cannot be considered as sufficient to show said print-outs integrity and reliability. As correctly pointed out by Judge Marcos in his May 29, 1998 Decision, Exh. "G" does not show on its face that it was issued by Ingtan Agency as Aznar merely mentioned in passing how

he was able to secure the print-out from the agency; Aznar also failed to show the specific business address of the source of the computer print-out because while the name of Ingtan Agency was mentioned 45 by Aznar, its business address was not reflected in the print-out. Indeed, Aznar failed to demonstrate how the information reflected on the print-out was generated and how the said information could be relied upon as true. Between said computer print out (Exhibit G) and the Warning Cancellation Bulletins (Exhibits 3 to 8 and their submarkings) the latter documents adduced by defendant are entitled to greater weight than that said computer print out presented by plaintiff that bears on the issue of whether the plaintiffs preferred master card was actually placed in the hot list or blacklisted for the following reasons: The first reason is that the due execution and authentication of these Warning Cancellation Bulletins (or WCB) have been duly established and identified by defendants own witness, Dennis Flores, one of the banks officers, who is the head of its credit card department, and, therefore, competent to testify on the said bulletins as having been issued by the defendant bank showing that plaintiffs preferred master credit card was never blacklisted or placed in the Banks hot list. But on the other hand, plaintiffs computer print out (Exhibit G) was never authenticated or its due execution had never been duly established. Thus, between a set of duly authenticated commercial documents, the Warning Cancellation Bulletins (Exhibits 3 to 8 and their submarkings), presented by defendants (sic) and an unauthenticated private document, plaintiffs computer print out (Exhibit G), the former deserves greater evidentiary weight supporting the findings of this Court that plaintiffs preferred master card (Exhibit 1) had never been 49 blacklisted at all or placed in a so-called hot list by defendant. MCC Industrial Sales Corp. v. Ssangyong Corp., G.R. No. 170633, October 17, 2007, 536 SCRA 408 An electronic document shall be regarded as the equivalent of an original document under the Best Evidence Rule, as long as it is a printout or output readable by sight or other means, showing to reflect the data accurately. (Rule 4, Section 1, A.M. No. 01-7-01-SC) The term "ELECTRONIC RECORD" fixes the scope of our bill. The record is the data. The record may be on any medium. It is electronic because it is recorded or stored in or by a computer system or a similar device. The amendment is intended to apply, for example, to data on magnetic strips on cards or in Smart cards. As drafted, it would not apply to telexes or faxes, except computer-generated faxes, unlike the United Nations model law on electronic commerce. It would also not apply to regular digital telephone conversations since the information is not recorded. It would apply to voice mail since the information has been recorded in or by a device similar to a computer. Likewise, video records are not covered. Though when the video is transferred to a website, it would be covered because of the involvement of the computer. Music recorded by a computer system on a compact disc would be covered . In short, not all data recorded or stored in digital form is covered. A computer or a similar device has to be involved in its creation or storage. The term "similar device" does not extend to all devices that create or store data in digital form. Although things that are not recorded or preserved by or in a computer system are omitted from this bill, these may well be admissible under other rules of law. This provision focuses on replacing the search for originality proving the reliability of systems instead of that of individual records and using standards to show systems reliability. Paper records that are produced directly by a computer system such as printouts are themselves electronic records being just the means of intelligible display of the contents of the record. Photocopies of the printout would be paper record subject to the usual rules about copies, but the original printout would be subject to the rules of admissibility of this bill. However, printouts that are used only as paper records and whose computer origin is never again called on are treated as paper records. In that case, the reliability of the computer system that produces the record is irrelevant to its reliability. x x x A facsimile is not a genuine and authentic pleading. It is, at best, an exact copy preserving all the marks of an original. Without the original, there is no way of determining on its face whether the facsimile pleading is genuine and authentic and was originally signed by the party 87 and his counsel. It may, in fact, be a sham pleading. Accordingly, in an ordinary facsimile transmission, there exists an original paper-based information or data that is scanned, sent through a phone line, and re-printed at the receiving end. Be it noted that in enacting the Electronic Commerce Act of 2000, Congress intended virtual or paperless writings to be

10

the functional equivalent and to have the same legal function as paper-based documents. Further, in a virtual or paperless environment, technically, there is no original copy to speak of, as all direct printouts of 89 the virtual reality are the same, in all respects, and are considered as originals. Ineluctably, the law's definition of "electronic data message," which, as aforesaid, is interchangeable with "electronic document," could not have included facsimile transmissions, which have anoriginal paper-based copy as sent and a paper-based facsimile copy as received. We, therefore, conclude that the terms "electronic data message" and "electronic document," as defined under the Electronic Commerce Act of 2000, do not include a facsimile transmission . Accordingly, a facsimile transmissioncannot be considered as electronic evidence. It is not the functional equivalent of an original under the Best Evidence Rule and is not admissible as electronic evidence. Since a facsimile transmission is not an "electronic data message" or an "electronic document," and cannot be considered as electronic evidence by the Court, with greater reason is a photocopy of such a fax transmission not electronic evidence. Ang v. Court of Appeals, G.R. No. 182835, April 20, 2010, 618 SCRA 593 Rustan claims that the obscene picture sent to Irish through a text message constitutes an electronic document. Thus, it should be authenticated by means of an electronic signature, as provided under Section 1, Rule 5 of the Rules on Electronic Evidence (A.M. 01-7-01-SC). But, firstly, Rustan is raising this objection to the admissibility of the obscene picture, Exhibit A, for the first time before this Court. The objection is too late since he should have objected to the admission of the picture on such ground at the time it was offered in evidence. He should be deemed to have already waived such ground for objection.
[14]

88

Besides, the rules he cites do not apply to the present criminal action. The Rules on Electronic Evidence applies only to civil actions, quasi-judicial proceedings, and administrative proceedings. Chato v. House of Representatives Electoral Tribunal, G.R. No. 199149, January 22, 2013 We agree, therefore, with both the HRET and Panotes that the picture images of the ballots, as scanned and recorded by the PCOS, are likewise official ballots that faithfully captures in electronic form the votes cast by the voter, as defined by Section 2 (3) of R.A. No. 9369. As such, the printouts thereof are the functional equivalent of the paper ballots filled out by the voters and, thus, may be used for purposes of revision of votes in an electoral protest. Maliksi v. Comelec, G.R. No. 203302, March 12, 2013 We have already ruled that the ballot images in the CF cards, as well as the printouts of such images, are the functional equivalent of the official physical ballots filled up by the voters, and may be used in an election protest. In the recent consolidated cases of Vinzons-Chato v. House of Representatives Electoral Tribunal and Panotes and Panotes v. House of Representatives Electoral Tribunal and Vinzons-Chato, 33 the Court ruled that the picture images of the ballots, as scanned and recorded by the PCOS, are likewise official ballots that faithfully capture in electronic form the votes cast by the voter, as defined by Section 2 (3) of R.A. No. 9369.34 The Court declared that the printouts of the ballot images in the CF cards are the functional equivalent of the paper ballots filled out by the voters and, thus, may be used for purposes of revision of votes in an electoral protest. In shor t, both the ballot images in the CF cards and the printouts of such images have the same evidentiary value as the official physical ballots filled up by the voters. Read Dissent of Justice Bersamin 5. Parol Evidence Rule Rule 130, Sec. 9

Application of the parol evidence rule Means extraneous evidence or evidence aliunde Applies only to contracts which the parties have decided to set forth in writing. When the agreement is merely oral, the parol evidence rule should not be applied Forbids any addition to, or contradiction o, the terms of a written agreement by testimony or other evidence purporting to show that different terms were agreed upon by the parties, varying the purport of the written contract

11

Whatever is not found in the writing is understood to have been waived and abandoned; contents cannot be modified, altered or explained by extrinsic or parol evidence like oral testimony. Not all writings will trigger the application of the parol evidence rule. The writing must embody an agreement For the parol evidence to apply. A written contract need not be in any particular form, or be signed by both parties Application of the rule only to parties and their successors; total stranger to the writing is notbound by its terms and is allowed to introduce extrinsic or parol evidence against the efficacy of the writing When they execute a written contract, the parolevidence rule ipso facto comes into play. ?? what have the parties agreed upon

When parol evidence can be introduced s9r130 Introducing parol evidence means offering extrinsic or extraneous evidence that would modify, explain or add to the terms of the written agreement but parol evidence may only be allowed if a-d is put in issue in the pleadings. c. Distinctions between the best evidence rule and parol evidence rule Best evidence rule Original document over a secondary evidence Precludes secondary evidence if original is available Parol evidence rule Not concerned with the primacy of evidence but presupposes that the original is existing Precludes other evidence to prove the terms of a document other than the contents of the document itself for the purposes of varying the terms of the writing Only by the parties to the document and their successors in interest Written agreements (contracts) and wills

As to preference

As to admission of other evidence

Who may invoke?

As to application

Any litigant to an action WON said litigant is a party to the document involved All forms of writing

Lequin v. Spouses Vizconde, G.R. No. 177710, October 12, 2009, 603 SCRA 407

The second exception provided for the acceptance of parol evidence applies to the instant case. Lack of consideration was proved by petitioners evidence aliunde showing that the Kasulatan did not express the true intent and agreement of the parties. As explained above, said sale contract was fraudulently entered into through the misrepresentations of respondents causing petitioners vitiated consent. Marquez v. Espejo, G.R. No. 168387, August 25, 2010, 629 SCRA 117

When the parties admit the contents of written documents but put in issue whether these documents adequately and correctly express the true intention of the parties, the deciding body is authorized to look beyond these instruments and into the contemporaneous and subsequent actions of the parties in order to determine such intent. However, even the application of the Parol Evidence Rule is improper in the case at bar. In the first place, respondents are not parties to the VLTs executed between RBBI and petitioners; they are strangers to the written contracts. Rule 130, Section 9 specifically provides that parol evidence rule is exclusive only as between the parties and their successors-in-interest. The parol evidence rule may not be invoked where at least one of the parties to the suit is not a party or a privy of a party to the written document in question, and does not base his claim on the instrument or assert a right originating in the instrument.
[44]

Moreover, the instant case falls under the exceptions to the Parol Evidence Rule.

Based on the

foregoing, the resolution of the instant case necessitates an examination of the parties respective parol evidence, in order to determine the true intent of the parties. Well-settled is the rule that in case of doubt, it is the intention of the contracting parties that prevails, for the intention is the soul of a contract, not its wording which is prone to mistakes, inadequacies, or ambiguities. To hold otherwise would give life, validity, and precedence to mere typographical errors and defeat the very purpose of agreements.
[45]

12

Salimbangon v. Tan, G.R. No. 185240, January 20, 2010, 610 SCRA 426

Here, the Tans had put in issue the true intent and agreement of the parties to the partition when they alleged in their complaint that, contrary to what paragraph 2 quoted above seems to imply, the easement was actually for the benefit of Lots D and E only. Consequently, the Tans were entitled to introduce evidence to establish the true intent and agreement of the parties although this may depart from what the partition agreement literally provided. At any rate, as the CA said, the Salimbangons did not object at the hearing to admission of Eduardo Cenizas testimony even when this seemed at variance, as far as they were concerned, with the partition agreement among the heirs. Consequently, the Salimbangons may also be deemed to have waived their right to now question such testimony on appeal. 6. Authentication and proof of documents

Meaning of authentication Presumption That objects and documents presented in evidence are as a rule counterfeit. b. Public and private documents Rule 132, Sec. 19 Heirs of Jose Marcial K. Ochoa v. G & S Transit Corp., G.R. No. 170071, July 16, 2012

The requirement of authentication of documentary evidence applies only to a private document. It is true that before a private document offered as authentic be received in evidence, its due execution 15 and authenticity must first be proved. However, it must be remembered that this requirement of authentication only pertains to private documents and "does not apply to public documents, these being admissible without further proof of their due execution or genuineness. Two reasons may be advanced in support of this rule, namely: said documents have been executed in the proper registry and are presumed to be valid and genuine until the contrary is shown by clear and convincing proof; and, second, because public documents are authenticated by the official signature and seals which they bear and of which 16 seals, courts may take judicial notice." Hence, in a case, the Court held that in the presentation of public 17 documents as evidence, due execution and authenticity thereof are already presumed. The subject USAID Certification is a public document, hence, does not require authentication. It therefore becomes necessary to first ascertain whether the subject USAID Certification is a private or public document before this Court can rule upon the correctness of its admission and consequent use as basis for the award of loss of income in these cases. Sec. 19, Rule 132 Public documents are: (a) 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; USAID is the principal United States agency that extends assistance to countries recovering from disaster, trying to escape poverty, and engaging in democratic reforms and that it is an independent federal government agency that receives over-all foreign policy guidance from the Secretary of State of the United States created through Executive Order 10973. The USAID is an official government agency of a foreign country, the United States. Hence, Cruz, as USAIDs Chief of the Human Resources Division in the Philippines, is actually a public officer. Apparently, Cruzs issuance of the subject USAID Certification was made in the performance of his official functions, he having charge of all employee files and information as such officer. In view of these, it is clear that the USAID Certification is a public document pursuant to paragraph (a), Sec. 19, Rule 132 of the Rules of Court. Hence, and consistent with our above discussion, the authenticity and due execution of said Certification are already presumed. Moreover, as a public document issued in the performance of a duty by a public officer, the subject USAID Certification is 22 prima facie evidence of the facts stated therein.

13

Meneses v. Venturozo, G.R. No. 172196, October 19, 2011, 659 SCRA 577 The presumptions that attach to notarized documents can be affirmed only so long as it is beyond dispute [29] that the notarization was regular. A defective notarization will strip the document of its public character [30] and reduce it to a private instrument. Consequently, when there is a defect in the notarization of a document, the clear and convincing evidentiary standard normally attached to a duly-notarized document [31] is dispensed with, and the measure to test the validity of such document is preponderance of evidence. c. When a private writing requires authentication; proof of a private writing Rule 132, Sec. 20

Malayan Insurance v. Philippine Nails and Wires Corp., G.R. No. 138084, April 10, 2002, 380 SCRA 374

Private documents are those that do not fall under any of the enumerations in Section 19, Rule 132 of the 8 9 Rules of Court. Section 20 of the same law, in turn, provides that before any private document is received in evidence, its due execution and authenticity must be proved either by anyone who saw the document executed or written, or by evidence of the genuineness of the signature or handwriting of the maker. Here, respondent's documentary exhibits are private documents. They are not among those enumerated in Section 19, thus, their due execution and authenticity need to be proved before they can be admitted in evidence. With the exception concerning the summary of the weight of the steel billets 10 imported, respondent presented no supporting evidence concerning their authenticity. Consequently, they cannot be utilized to prove less of the insured cargo and/or the short delivery of the imported steel billets. In sum, we find no sufficient competent evidence to prove petitioner's liability. Asian Construction and Development Corp. v. COMFAC Corp., G.R. No. 163915, October 12, 2006 The rule is that failure to object to the offered evidence renders it admissible,
[6]

and the court

cannot, on its own, disregard such evidence. We note thatASIAKONSTRUCTs counsel of record before the trial court, Atty. Bernard Dy, who actively participated in the initial stages of the case stopped attending the hearings when COMFAC was about to end its presentation. Thus, ASIAKONSTRUCT could not object to COMFACs offer of evidence nor present evidence in its defense; ASIAKONSTRUCT was deemed by the trial court to have waived its chance to do so. Note also that when a party desires the court to reject the evidence offered, it must so state in the form of a timely objection and it cannot raise the objection to the evidence for the first time on [7] appeal. Because of a partys failure to timely object, the evidence becomes part of the evidence in the case. Thereafter, all the parties are considered bound by any outcome arising from the offer of evidence [8] properly presented. ASIAKONSTRUCT also questions the authenticity of the Certificates of Completion. However, it has been uniformly held that findings of facts by
[9]

the trialcourt, The appellate courts

particularly when affirmed by the Court of Appeals, are binding upon this Court. conclusion on the authenticity of the Certificates of Completion binds us now. Otero v. Tan, G.R. No. 200134, August 15, 2012

A private document is any other writing, deed, or instrument executed by a private person without the intervention of a notary or other person legally authorized by which some disposition or agreement is proved or set forth. Lacking the official or sovereign character of a public document, or the solemnities prescribed by law, a private document requires authentication in the manner allowed by law or the Rules of Court before its acceptance as evidence in court. The requirement of authentication of a private document is excused only in four instances, specifically: (a) when the document is an ancient one within the context of Section 21, Rule 132 of the Rules of Court; (b) when the genuineness and authenticity of an actionable document have not been specifically denied under oath by the adverse party; (c) when the genuineness and authenticity of the document have been admitted; or (d) when the document is not being offered as genuine.24 The statements of account which Tan adduced in evidence before the MTCC indubitably are private documents. Considering that these documents do not fall among the aforementioned exceptions, the MTCC could not admit the same as evidence against Otero without the required authentication thereof

14

pursuant to Section 20, Rule 132 of the Rules of Court. During authentication in court, a witness positively testifies that a document presented as evidence is genuine and has been duly executed, or that the document is neither spurious nor counterfeit nor executed by mistake or under duress.25 Here, Tan, during the ex parte presentation of his evidence, did not present anyone who testified that the said statements of account were genuine and were duly executed or that the same were neither spurious or counterfeit or executed by mistake or under duress. Betache, the one who prepared the said statements of account, was not presented by Tan as a witness during the ex parte presentation of his evidence with the MTCC. Considering that Tan failed to authenticate the aforesaid statements of account, the said documents should not have been admitted in evidence against Otero. It was thus error for the lower tribunals to have considered the same in assessing the merits of Tans Complaint. d. When evidence of authenticity of a private writing is not required (ancient documents) Rule 132, Sec. 21

Heirs of Demetria Lacsa v. Court of Appeals, G.R. No. 79597-98, May 20, 1991, 197 SCRA 234

Under the "ancient document rule," for a private ancient document to be exempt from proof of due execution and authenticity, it is not enough that it be more than thirty (30) years old; it is also necessary that the following requirements are fulfilled; (1) that it is produced from a custody in which it would naturally be found if genuine; and (2) that it is unblemished by any alteration or circumstances of 17 suspicion. The first document, Exhibit "3", entitled 'Traduccion Al Castellano de la Escritura de Particion Extrajudicial" was executed on 7 April 1923 whereas the second document, exhibit "7", entitled "Escritura de Venta Absoluta" was executed on 20 January 1924. These documents are, therefore, more than thirty (30) years old. Both copies of the aforementioned documents were certified as exact copies of the original on file with the Office of the Register of Deeds of Pampanga, by the Deputy Register of Deeds. There is a further certification with regard to the Pampango translation of the document of extrajudicial partition which was issued by the Archives division, Bureau of Records Management of the Department of General 18 Services. Documents which affect real property, in order that they may bind third parties, must be recorded with the appropriate Register of Deeds. The documents in question, being certified as copies of originals on file with the Register of Deeds of Pampanga, can be said to be found in the proper custody. Clearly, therefore, the first two (2) requirements of the "ancient document rule" were met. As to the last requirement that the document must on its face appear to be genuine, petitioners did not present any conclusive evidence to support their allegation of falsification of the said documents. They merely alluded to the fact that the lack of signatures on the first two (2) pages could have easily led to their substitution. We cannot uphold this surmise absent any proof whatsoever. As held in one case, a contract apparently honest and lawful on its face must be treated as such and one who assails the 19 genuineness of such contract must present conclusive evidence of falsification. Moreover, the last requirement of the "ancient document rule" that a document must be unblemished by any alteration or circumstances of suspicion refers to the extrinsic quality of the document itself. The lack of signatures on the first pages, therefore, absent any alterations or circumstances of suspicion cannot be held to detract from the fact that the documents in question, which were certified as copied of the originals on file with the Register of Deeds of Pampanga, are genuine and free from any blemish or circumstances of suspicion. The documents in question are "ancient documents" as envisioned in Sec. 22 of Rule 132 of the Rules of Court. Further proof of their due execution and authenticity is no longer required. Having held that the documents in question are private writings which are more than thirty (30) years old, come from the proper repository thereof, and are unblemished by any alteration or circumstances of suspicion, there is no further need for these documents to fulfill the requirements of the 1903 Notarial Law. Hence, the other contentions of the petitioners that the documents do not fulfill the mandatory requirements of the Notarial 20 Law and that the proper person or public official was not presented to testify on his certification of the 21 documents in question, need not be resolved as they would no longer serve any purpose. e. How to prove genuineness of a handwriting Rule 132, Sec. 22

Sanson v. CA, G.R. No. 127745, April 22, 2003, 401 SCRA 349

15

not only did the administratrix fail to controvert the same; from a comparison with the naked eye of the deceaseds signature appearing on each of the checks -exhibits of the Montinolas with that of the checksexhibits of the Sanson siblings all of which checks were drawn from the same account, they appear to have been affixed by one and the same hand. In fine, as the claimants-herein petitioners have, by their evidence, substantiated their claims against the estate of the deceased, the burden of evidence had shifted to the administratrix who, however, expressly opted not to discharge the same when she manifested that she was dispensing with the presentation of evidence against the claims. Mariano v. Roxas, G.R. No. A.M. No. CA-02-14-P, July 31, 2002, 385 SCRA 500 As found by the CA, there are marked differences between the signatures in the receipts and complainants specimen signature which are easily discernible by the naked eye. That the receipts are [12] not genuine was confirmed by Lorna Caraga. She testified that she is familiar with the signature of complainant who was her officemate for a period of 5 years in the Regional Trial Court (RTC), Branch 130, Caloocan City. In many occasions, complainant signed documents in her presence. Her opinion as to complainants genuine signature is admissible in evidence pursuant to Section 50, Rule 130 of the Revised Rules on Evidence which provides: Sec. 50. Opinion of ordinary witnesses. The opinion of a witness for which proper basis is given, may be received in evidence regarding xxx (b) A handwriting with which he has sufficient familiarity; and x x x (Emphasis ours) Corollarily, Section 22, Rule 132 of the same Rules provides that: Sec. 22. How genuineness of handwriting proved. The handwriting of a person may be proved by any witness who believes it to be the handwriting of such person because he has seen the person write, or 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 . Evidence respecting the handwriting may also be given by a comparison, made by the witness or the court, with writings admitted or treated as genuine by the party against whom the evidence is offered, or proved to be genuine to the satisfaction of the judge. People v. Pagpaguitan, G.R. No. 116599, September 27, 1999, 315 SCRA 226 When a writing in issue is claimed on the one hand and denied upon the other to be the writing of a particular person, any other writing of that person may be admitted in evidence for the purpose of 37 comparison with the writing in dispute. It is also recognized that a comparison of writing is a rational method of investigation; similarities and dissimilarities thus disclosed have probative value in the search 38 for truth. Thus, it has been held that, where a comparison is permissible, it may be made by the court, 39 with or without the aid of expert witnesses. The court may, in the exercise of its sound discretion, order 40 a party to write or sign his signature as a basis for comparison. For, the handwriting of a person is 41 characteristic of the person himself. Once admitted, the genuineness of other offered writings alleged to be the work of the same writer becomes a question for the trier of fact who may, but need not, be assisted in this task by experts. h. Public record of a public document Rule 132, Sec. 26 Rule 132, Sec. 27

32

Salas v. Sta. Mesa Market Corp., G.R. No. 157766, July 27, 2007 Financial documents.
[27]

statements,

whether

audited

or

not,

are,

as

general

rule,

private

However, once financial statements are filed with a government office pursuant to a
[28]

provision of law,

they become public documents.

[29]

Whether a document is public or private is relevant in determining its admissibility as evidence. Public documents are admissible in evidence even without further proof of their due execution and

16

genuineness. On the other hand, private documents are inadmissible in evidence unless they are properly authenticated. Petitioner and respondents agree that the documents presented as evidence were mere copies of the audited financial statements submitted to the BIR and SEC. Neither party claimed that copies presented were certified true copies
[32]

[30]

of audited financial statements obtained or secured from the BIR

or the SEC which under Section 19(c), Rule 132 would have been public documents. Thus, the statements presented were private documents. Consequently, authentication was a precondition to their admissibility in evidence. While there is no fixed criterion as to what constitutes competent evidence to establish the authenticity of a private document, the best proof available must be presented.
[35]

The best proof

available, in this instance, would have been the testimony of a representative of SMMC's external auditor who prepared the audited financial statements. Inasmuch as there was none, the audited financial statements were never authenticated.

k.

Proof of notarial documents Rule 132, Sec. 30

Lazaro v. Agustin, G.R. No. 152364, April 15, 2010, 618 SCRA 298 a notarized document carries the evidentiary weight conferred upon it with respect to its due execution, and documents acknowledged before a notary public have in their favor the presumption of regularity.
[18]

However, this presumption is not absolute and may be rebutted by clear and convincing
[19]

evidence to the contrary.

Moreover, not all notarized documents are exempted from the rule on authentication.

[20]

Thus, an
[21]

affidavit does not automatically become a public document just because it contains a notarial jurat. the notarization was regular.

The

presumptions that attach to notarized documents can be affirmed only so long as it is beyond dispute that

Petitioners rely heavily on the presumption of regularity accorded by law to notarized documents. While indeed, a notarized document enjoys this presumption, the fact that a deed is notarized is not a guarantee of the validity of its contents.
[27]

As earlier discussed, the presumption is not absolute and may

[28]

be rebutted by clear and convincing evidence to the contrary.

The presumption cannot be made to

apply to the present case because the regularity in the execution of the sworn statement was challenged in the proceedings below where its prima facie validity was overthrown by the highly questionable circumstances under which it was supposedly executed, as well as the testimonies of witnesses who testified on the improbability of execution of the sworn statement, as well as on the physical condition of the signatory, at the time the questioned document was supposedly executed.

l.

How to explain alterations in a document Rule 132, Sec. 31 Rule 132, Sec. 32

m.

Documentary evidence in an unofficial language Rule 132, Sec. 33

Pan Pacific Industrial Sales v. Court of Appeals, G.R. No. 125283, February 10, 2006, 482 SCRA 164 he who disavows the authenticity of his signature on a public document bears the responsibility to present evidence to that effect. Mere disclaimer is not sufficient. At the very least, he should present corroborating witnesses to prove his assertion. At best, he should present an expert witness.

17

The fact that the document contains a jurat, not an acknowledgment, should not affect its genuineness or that of the related document of conveyance itself, the Deed of Absolute Sale . In this instance, a jurat 44 suffices as the document only embodies the manifestation of the spouses c onsent, a mere appendage to the main document. The use of a jurat, instead of an acknowledgement does not elevate the Marital Consent to the level of a 45 public document but instead consigns it to the status of a private writing. The lack of acknowledgment, however, does not render a deed invalid. The necessity of a public document for contracts which transmit or extinguish real rights over immovable property, as mandated by Article 1358 of the Civil Code, is only 46 for convenience; it is not essential for validity or enforceability. From the perspective of the law on evidence, however, the presumption of regularity does not hold true with respect to the Marital Consent which is a private writing. It is subject to the requirement of proof of private document. Delfin v. Billones, G.R. No. 146550, March 17, 2006, 485 SCRA 38

A duly-registered death certificate is considered a public document and the entries found therein are presumed correct, unless the party who contests its accuracy can produce positive evidence establishing 48 otherwise. Nevertheless, this presumption is disputable and is satisfactory only if uncontradicted, and may be overcome by other evidence to the contrary. The documents presented by respondents were mere certifications and not the certified copies or duly authenticated reproductions of the purported death certificates of Esperanza Daradarand Cipriano Degala. They are not the public documents referred to by the Rules of Court, nor even records of public documents; thus, they do not enjoy the presumption granted by the Rules. Respondents did not even present the local civil registrar who supposedly issued the certifications to authenticate and identify the same. Likewise, respondent Jolly Datar who adverted to the certifications did not testify on how the 49 certifications were obtained, much less his role therein. As a consequence, the trial court did not admit the certifications as independent pieces of evidence but merely as part of the testimony of respondent 50 Jolly Datar. A document or writing which is admitted not as an independent evidence but merely as part 51 of the testimony of a witness does not constitute proof of the facts related therein. Clearly then, the certifications cannot be given probative value, and their contents cannot be deemed to constitute proof of the facts therein stated. Patula v. People, G.R. No. 164457, April 11, 2012 If it is already clear that Go and Guivencan had not themselves seen the execution or signing of the documents,the Prosecution surely did not authenticateExhibits B to YY and their derivatives conformably with the aforequoted rules. Hence, Exhibits B to YY, and their derivatives, inclusive, were inescapably bereft of probative value as evidence. E. Testimonial evidence Rule 130, Sec. 36

People v. Coca Jr., G.R. No. 133739, May 29, 2002, 382 SCRA 508 Accused-appellants were likewise positively identified by prosecution witness Alexander Singson as the persons he saw running away from the house of the victim right after he heard the gunshots. But even if we disregard the testimony of Singson, the persuasive and compelling testimony of the victim's wife, juxtaposed with the circumstances which proved feasible the identification of accused-appellants, are enough to prove their culpability beyond any scintilla of doubt. Read: Testimonial Evidence by Juliana C. Azarraga, 382 SCRA 522 1. Qualifications of a witness Rule 130, Sec. 20

People v. Hayag, G.R. No. L-38635, November 17, 1980, 101 SCRA 67 The method to be employed in eliciting the testimony of a deaf-mute should be that which is best suited to attain the desired end, the particular method of examination resting largely in the discretion of the trial court. Thus, a deaf and dumb witness may be examined by means of written questions to which he gives written answers, or he may be examined through the medium of an interpreter who communicates with the witness by means of signs. The qualifications of a particular person to act as an interpreter for a deaf-

18

mute rests largely in the discretion of the trial court. And the general rule is that the evidence of a deaf-mute who can be communicated with by signs may be taken through an interpreter who understands such signs and can interpret them to the court. And it has been held that it is permissible to take the testimony of a deaf-mute through an interpreter by signs notwithstanding the evidence could have been written. At least where there is no showing that the interpretation by signs is not the better method. And especially where it appears that the witness is capable of relating the facts "correctly" by signs, but, while able to read and write, can only communicate Ideas imperfectly' by writing. And it is not necessary that the witness be able to read and write. However, it has been said that it would seem to be better in the case of a deaf and dumb witness who can read and write to conduct his examination in writing. With respect to the conducting of the examination of a deaf-mute itself, it has been held that the allowing of leading questions is in the discretion of the court. This discretion was said to arise out of the fact that 'there is always more or less difficulty in eliciting testimony' where the witness is a deaf-mute 2. Competency versus credibility of a witness

- questions concerning credibility are best addressed to the sound discretion of the trial court as it is in the best position to observe the demeanor and bodily movements. - exc: overlooked, misunderstood, misapplied, misapprehension of facts or circumstances of weight and substance which could reverse a judgment of conviction. Does not affect competency: 1. Religious, political beliefs 2. Interest in the outcome of the case 3. Conviction of a crime unless OW provided by law (falsification of a document, perjury or false testimony) Read: Credibility of Witnesses by Juliana C. Azarraga, 469 SCRA 672 3. a. Disqualifications of witnesses Disqualification by reason of mental capacity or immaturity Rule 130, Sec. 21

TEST: at the time of his production b. Disqualification by reason of marriage Rule 130, Sec. 22 Utterances and production of documents Ratio: preserve harmony, security and confidences of private life, identity of interests, To discourage commission of perjury Prohibition extends not only to a testimony adverse to the spouse but also to a testimony in favor of the spouse. Extends to both criminal and civil cases There must be: Valid marriade Existence of valid marriage at the moment the W-spouse gives the testimony Prohibited only over the objection of the affected spouse; admissible where no objection is interposed by the spouse who has the right to invoke the prohibition, impliedly orexpressly c. Disqualification by reason of death or insanity of adverse party Rule 130, Sec. 23 (Dead Mans Statute) also Survivorship Disqualification Rule

Applies only to a civil case or specpro Elements: 1. As to defendant - The EXECUTOR or ADMINISTRATOR or REPRESENTATIVE of the deceased or the person of unsound mind; 2. As to suit - A claim by the plaintiff against the estate of said deceased or person of unsound mind; 3. As to witness - The plaintiff, or an assignor of that party, or a person in whose behalf the case is prosecuted; 4. As to subject of the testimony - Any matter of fact occurring before the death of such deceased person or before such person became of unsound mind. Does not prohibit testimony by a mere witness to the transaction between the plaintiff and the deceased and who has no interest in the transaction

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Waiver: 1. Failing to object to the testimony, or 2. Cross-examining the witness on the prohibited testimony,or 3. By offering evidence to rebut the testimony Sanson v. Court of Appeals, G.R. No. 127745, April 22, 2003, 401 SCRA 349

As for the administratrixs invocation of the Dead Mans Statute, the same does not likewise lie. The rule renders incompetent: 1) parties to a case; 2) their assignors; or 3) persons in whose behalf a case is prosecuted. xxx The rule is exclusive and cannot be construed to extend its scope by implication so as to disqualify persons not mentioned therein. Mere witnesses who are not included in the above enumeration are not prohibited from testifying as to a conversation or transaction between the deceased and a third person, if he took no active part therein. Xxx But Sansons and Celedonias claims against the same estate arose from separate transactions. Sanson is a third party with respect to Celedonias claim. And Celedonia is a third party with respect to Sansons claim. One is not thus disqualified to testify on the others transaction. In any event, what the Dead Mans Statute proscribes is the admission of testimonial evidence upon a claim which arose before the death of the deceased. The incompetency is confined to the giving of 29 testimony. Since the separate claims of Sanson and Celedonia are supported by checksdocumentary evidence, their claims can be prosecuted on the bases of said checks. Sunga-Chan v. Chua, G.R. No. 143340, August 15, 2001, 363 SCRA 249

First, petitioners filed a compulsory counterclaim against respondents in their answer before the trial court, and with the filing of their counterclaim, petitioners themselves effectively removed this case from 12 the ambit of the "Dead Man's Statute". Well entrenched is the rule that when it is the executor or administrator or representatives of the estates that sets up the counterclaim, the plaintiff, herein respondent, may testify to occurrences before the death of the deceased to defeat the 13 counterclaim. Moreover, as defendant in the counterclaim, respondent is not disqualified from testifying as to matters of facts occurring before the death of the deceased, said action not having been brought 14 against but by the estate or representatives of the deceased. Second, the testimony of Josephine is not covered by the "Dead Man's Statute" for the simple reason that she is not "a party or assignor of a party to a case or persons in whose behalf a case is prosecuted." Records show that respondent offered the testimony of Josephine to establish the existence of the partnership between respondent and Jacinto. Petitioners' insistence that Josephine is the alter ego of respondent does not make her an assignor because the term "assignor" of a party means "assignor of a cause of action which has arisen, and not the assignor of a right assigned before any cause of action has 15 arisen." Plainly then, Josephine is merely a witness of respondent, the latter being the party plaintiff. Garcia v. Robles, G.R. No. 180843, April 17, 2013

11

Thus, since Pedro is deceased, and Amandas declaration which pertains to the leasehold agreement affects the 1996 Kasunduan sa Buwisan ng Lupa which she as assi gnor entered into with petitioners, and which is now the subject matter of the present case and claim against Pedros surviving spouse and lawful successor-in-interest Dominga, such declaration cannot be admitted and used against the latter, who is placed in an unfair situation by reason of her being unable to contradict or disprove such declaration as a result of her husband-declarant Pedros prior death. If petitioners earnestly believed that they had a right, under their supposed mutual agreement with Pedro, to cultivate the land under an alternate farming scheme, then they should have confronted Pedro or sought an audience with Amanda to discuss the possibility of their institution as co-lessees of the land; and they should have done so soon after the passing away of their father Eugenio. However, it was only in 1996, or 17 years after Pedro was installed as tenant in 1979 and long after his death in 1984, that they came forward to question Pedros succession to the leasehold. As correctly held by the PARAD, petitioners slept on their rights, and are thus precluded from questioning Pedros 1979 agricultural leasehold contract. d. Disqualification by reason of privileged communications

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i.

Husband and wife Rule 130, Sec. 24 (a) Elements: 1. There must be a valid marriage between the husband and wife; 2. There is a communication received in confidence by one from the other; 3. The confidential communication was received during the marriage. - Confidential it must be made during and by reason of themarital relations and is not intended tobe shared with others. - May be waived - Not deemed confidential when uttered in the presence of third parties - Does not include acts merely observed by the spouse unless intended to be confidential Distinction 24(a) and 22 24(a) Reference Confidential communications received by one spouse from the other during the marriage Application Confidential communication received during the marriage only Objection Spouse affected may object even after the dissolution of the marriage Party Peeps Regardless of whether the spouses are parties or not Prohibition Examination of a spouse as to matters received in confidence by one from the other during the marriage

22 Not confidential between the spouses

communications

Includes facts, occurrences or information even prior to the marriage Can no longer be invoked once the marriage is dissolved Requires that the spouse for or against whom the testimony is offered is a party to the action Testimony for or against the other

Zulueta v. Court of Appeals, G.R. No. 107383, February 20, 1996, 253 SCRA 697 Indeed the documents and papers in question are inadmissible in evidence. The constitutional injunction 3 declaring "the privacy of communication and correspondence [to be] inviolable" is no less applicable simply because it is the wife (who thinks herself aggrieved by her husband's infidelity) who is the party against whom the constitutional provision is to be enforced. The only exception to the prohibition in the Constitution is if there is a "lawful order [from a] court or when public safety or order requires otherwise, 4 as prescribed by law." Any violation of this provision renders the evidence obtained inadmissible "for any purpose in any proceeding." The law insures absolute freedom of communication between the spouses by making it privileged. Neither husband nor wife may testify for or against the other without the consent of the affected spouse 6 while the marriage subsists. Neither may be examined without the consent of the other as to any communication received in confidence by one from the other during the marriage, save for specified 7 exceptions. But one thing is freedom of communication; quite another is a compulsion for each one to share what one knows with the other. And this has nothing to do with the duty of fidelity that each owes to the other. ii. Attorney and client Rule 130, Sec. 24 (b)

Requisites: 1. There must be a communication made by the client to the attorney or an advice given by the attorney to his client; 2. The communication or advice must have been given in confidence; and 3. The communication or advice must have been given either in the course of the professional employment or with a view to professional employment. Perfected attorney-client relationship not required Extended to communications made for the purpose of securing services of counsel even if counsel refuses later Privilege does not extend to communications where the clients purpose is the furtherance of a future intended crime or fraud. Does the privilege preclude inquiries into the fact that the lawyer was consulted? An inquiry into the fact of consultation or employment, even the identity of the client and lawyer, is not privileged.

HE, Last Link Doctrine non-privileged info such as the ID of a client, is protected if the revelation of such info would necessarily reveal privileged info.

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Communication must have been intended to be confidential Does the privilege apply in suits between the attorney and the client? Privileged is removed, but would apply only where the suit is between the attorney and his client The privilege is owned by the client; it is he who can invoke the privilege; hence waived if the client does not object to his attys testimony on the communication Protection will generally survive the death of the client

People v. Sandiganbayan, G.R. Nos. 115439-41, July 16, 1997, 275 SCRA 505 Indeed, the fact that Sansaet was called to witness the preparation of the falsified documents by Paredes and Honrada was as eloquent a communication, if not more, than verbal statements being made to him by Paredes as to the fact and purpose of such falsification. It is significant that the evidentiary rule on this 22 point has always referred to "any communication," without distinction or qualification. The privilege is not confined to verbal or written communications made by the client to his attorney but 23 extends as well to information communicated by the client to the attorney by other means. Nor can it be pretended that during the entire process, considering their past and existing relations as counsel and client and, further, in view of the purpose for which such falsified documents were prepared, no word at all passed between Paredes and Sansaet on the subject matter of that criminal act. The clincher for this conclusion is the undisputed fact that said documents were thereafter filed by Sansaet in behalf of Paredes as annexes to the motion for reconsideration in the preliminary investigation of the graft 24 case before the Tanodbayan. Also, the acts and words of the parties during the period when the documents were being falsified were necessarily confidential since Paredes would not have invited Sansaet to his house and allowed him to witness the same except under conditions of secrecy and confidence. 2. It is postulated that despite such complicity of Sansaet at the instance of Paredes in the criminal act for which the latter stands charged, a distinction must be made between confidential communications relating to past crimes already committed, and future crimes intended to be committed, by the client. Corollarily, it is admitted that the announced intention of a client to commit a crime is not included within the confidences which his attorney is bound to respect. Statements and communications regarding the commission of a crime already committed, made by a party who committed it, to an attorney, consulted as such, are privileged communications. Contrarily, the unbroken stream of judicial dicta is to the effect that communications between attorney and client having to do with the client'scontemplated criminal acts, or in aid or furtherance thereof, are not covered by the cloak of privileges ordinarily existing in reference to communications between attorney and client. Regala v. Sandiganbayan, G.R. No. 105938, September 20, 1996, 262 SCRA 122 It would seem that petitioners are merely standing in for their clients as defendants in the complaint. Petitioners are being prosecuted solely on the basis of activities and services performed in the course of their duties as lawyers. Quite obviously, petitioners' inclusion as co-defendants in the complaint is merely being used as leverage to compel them to name their clients and consequently to enable the PCGG to nail these clients. Such being the case, respondent PCGG has no valid cause of action as against petitioners and should exclude them from the Third Amended Complaint. The question now arises whether or not this duty may be asserted in refusing to disclose the name of petitioners' client(s) in the case at bar. Under the facts and circumstances obtaining in the instant case, the answer must be in the affirmative. As a matter of public policy, a client's identity should not be shrouded in mystery Under this premise, the general rule in our jurisdiction as well as in the United States is that a lawyer may not invoke the 31 privilege and refuse to divulge the name or identity of this client. The reasons advanced for the general rule are well established. First, the court has a right to know that the client whose privileged information is sought to be protected is flesh and blood. Second, the privilege begins to exist only after the attorney-client relationship has been established. The attorney-client privilege does not attach until there is a client. Third, the privilege generally pertains to the subject matter of the relationship.
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Finally, due process considerations require that the opposing party should, as a general rule, know his adversary. Notwithstanding these considerations, the general rule is however qualified by some important exceptions. 1) Client identity is privileged where a strong probability exists that revealing the client's name would implicate that client in the very activity for which he sought the lawyer's advice. 2) Where disclosure would open the client to civil liability; his identity is privileged. 3) Where the government's lawyers have no case against an attorney's client unless, by revealing the client's name, the said name would furnish the only link that would form the chain of testimony necessary to convict an individual of a crime, the client's name is privileged. Summarizing these exceptions, information relating to the identity of a client may fall within the ambit of the privilege when the client's name itself has an independent significance, such that disclosure would then reveal client confidences. The circumstances involving the engagement of lawyers in the case at bench, therefore, clearly reveal that the instant case falls under at least two exceptions to the general rule. First, disclosure of the alleged client's name would lead to establish said client's connection with the very fact in issue of the case, which is privileged information, because the privilege, as stated earlier, protects the subject matter or the substance (without which there would be not attorney-client relationship). An important distinction must be made between a case where a client takes on the services of an attorney for illicit purposes, seeking advice about how to go around the law for the purpose of committing illegal activities and a case where a client thinks he might have previously committed something illegal and consults his attorney about it. The first case clearly does not fall within the privilege because the same cannot be invoked for purposes illegal. The second case falls within the exception because whether or not the act for which the client sought advice turns out to be illegal, his name cannot be used or disclosed if the disclosure leads to evidence, not yet in the hands of the prosecution, which might lead to possible action against him. iii. Physician and patient Rule 130, Sec. 24 (c) Purpose of communication should be for the treatment or prevention of any disease or injury Privilege survives the death of the patient Privilege may be waived by the patient (contract: medical/life insurance) o Implied o Express o By operation of law or of the rules (s4r28)

Information which cannot be disclosed: 1. Any advice given to the client; 2. Any treatment given to the client; 3. Any information acquired in attending such patient provided that the advice, treatment or information was made or acquired in a professional capacity and was necessary to enable him to act in that capacity; and 4. That the information sought to be disclosed would tend to blacken the reputation of the patient. Gonzales v CA, G.R. No. 117740, October 30, 1998, 298 SCRA 322 Lastly, petitioners presented the affidavit of Dr. Pedro Arenas, Ricardo Abad's physician, declaring that in 1935, he had examined Ricardo Abad and found him to be infected with gonorrhea, and that the latter had become sterile as a consequence thereof. The rule on confidential communications between physician and patient requires that: a) the action in which the advice or treatment given or any information is to be used is a civil case; b) the relation of physician and patient existed between the person claiming the privilege or his legal representative and the physician; c) the advice or treatment given by him or any information was acquired by the physician while professionally attending the patient; d) the information was necessary for the performance of his professional duty; and e) the disclosure of the information would tend to blacken the reputation of the 12 patient.
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Petitioners do not dispute that the affidavit meets the first four requisites. They assert, however, that the finding as to Ricardo Abad's "sterility" does not blacken the character of the deceased. Petitioners conveniently forget that Ricardo Abad's "sterility" arose when the latter contracted gonorrhea, a fact which most assuredly blackens his reputation. In fact, given that society holds virility at a premium, sterility alone, without the attendant embarrassment of contracting a sexually-transmitted disease, would be sufficient to blacken the reputation of any patient. We thus hold the affidavit inadmissible in evidence. And the same remains inadmissible in evidence, notwithstanding the death of Ricardo Abad. Lim v. CA, G.R. No. 91114, September 25, 1992, 214 SCRA 23 A confidential psychiatric evaluation report is being presented in evidence before the trial court in a petition for annulment of marriage grounded on psychological incapacity. The witness testifying on the report is the husband who initiated the annulment proceedings, not the physician who prepared the report. The subject of the evaluation report, Ma. Paz Fernandez Krohn, invoking the rule on privileged communication between physician and patient, seeks to enjoin her husband from disclosing the contents of the report. Petitioner's discourse while exhaustive is however misplaced. Lim v. Court of Appeals clearly lays down the requisites in order that the privilege may be successfully invoked: (a) the privilege is claimed in a civil case; (b) the person against whom the privilege is claimed is one duly authorized to practice medicine, surgery or obstetrics; (c) such person acquired the information while he was attending to the patient in his professional capacity; (d) the information was necessary to enable him to act in that capacity; and, (e) the information was confidential and, if disclosed, would blacken the reputation (formerly character) of the patient. In the instant case, the person against whom the privilege is claimed is not one duly authorized to practice medicine, surgery or obstetrics. He is simply the patient's husband who wishes to testify on a document executed by medical practitioners. Plainly and clearly, this does not fall within the claimed prohibition. Neither can his testimony be considered a circumvention of the prohibition because his testimony cannot have the force and effect of the testimony of the physician who examined the patient and executed the report. Krohn v. CA, G.R. No. 108854, June 14, 1994, 233 SCRA 146 In order that the privilege may be sucessfully claimed, the following requisites must concur: 1. The privilege is claimed in a civil case; 2. the person against whom the privilege is claimed is one duly authorized to practice medicine, surgery or obstetrics; 3. such person acquired the information while he was attending to the patient in his professional capacity; 4. The information was necessary to enable him to act in that capacity; and 5. the information was confidential, and, if disclosed, would blacken the reputation (formerly character) of the patient. These requisites conform with the four (4) fundamental conditions necessary for the establishment of a privilege against the disclosure of certain communications, to wit: 1. The communications must originate in a confidence that they will not be disclosed. 2. This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties. 3. The relation \must be one which in the opinion of the community ought to be sedulously fostered. 4. The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation. petition to annul the order of the trial court allowing a Psychiatrist of the National Mental Hospital to testify as an expert witness and not as an attending physician of petitioner. petition to annul the order of the trial court allowing a Psychiatrist of the National Mental Hospital to testify as an expert witness and not as an attending physician of petitioner. It is to be emphasized that it is the tenor only of the communication that is privileged. The mere fact of making a communication, as well as the date of a consultation and the number of consultations, are therefore not privileged from disclosure, so long as the subject communicated is not stated. 1. The predominating view, with some scant authority otherwise, is that the statutory physician-patient privilege, though duly claimed,is not violated by permitting a physician to give expert opinion testimony in response to a strictly hypothetical question in a lawsuit involving the physical mental
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condition of a patient whom he has attended professionally, where his opinion is based strictly upon the hypothetical facts stated, excluding and disregarding any personal professional knowledge he may have concerning such patient. But in order to avoid the bar of the physician-patient privilege where it is asserted in such a case, the physician must base his opinion solely upon the facts hypothesized in the question, excluding from consideration his personal knowledge of the patient acquired through the physician and patient relationship. If he cannot or does not exclude from consideration his personal professional knowledge of the patients condition he should not be permitted to testify as to his expert opinion. 2. Some courts have held that the casual presence of a third person destroys the confidential nature of the communication between doctor and patient and thus destroys the privilege, and that under such circumstances the doctor may testify. iv. v. Priest and penitent Rule 130, Sec. 24 (d) Communication must be made pursuant to confessions of sins, made in his professional capacity; duly ordained pr consecrated by his sect Public officers Rule 130, Sec. 24 (e)

State secrets: 1. Military 2. Diplomatic 3. Other national security matters vi. Parental and filial privilege rule Rule 130, Sec. 25

Parental Privilege Rule a parent cannot be compelled to testify against his child or direct descendants Filial Privilege Rule a child may not be compelled to testify against his parents or direct ascendants People v. Invencion, G.R. No. 131636, March 5, 2003, 398 SCRA 592 As to the competency of Elven to testify, we rule that such is not affected by Section 25, Rule 130 of the 19 Rules of Court, otherwise known as the rule on "filial privilege." This rule is not strictly a rule on disqualification because a descendant is not incompetent or disqualified to testify against an 20 ascendant. The rule refers to a privilege not to testify, which can be invoked or waived like other privileges. As correctly observed by the lower court, Elven was not compelled to testify against his father; he chose to waive that filial privilege when he voluntarily testified against Artemio. Elven declared that he was testifying as a witness against his father of his own accord and only "to tell the truth." 4. Examination of a witness Rule 132, Sec. 1

Oath an outward pledge made under an immediate sense of responsibility to God or a solemn appeal to the Supreme Being in attestation of the truth of some statement Affirmation a substitute for an oath and is a solemn and formal declaration that the witness will tell the truth Rule 132, Sec. 2 a. Rights and obligations of a witness Rule 132, Sec. 3 i. Right against self-incrimination 1987 Const., Art. III, Sec. 17 Rule 115, Sec. 1 (e)

If the witness is the accused, he may altogether refuse totake the witness stand, if only a mere witness, may only refuse after the incriminating question. Timely objection

Rosete v. Lim, G.R. No. 136051, June 8, 2006, 490 SCRA 125 contend that since there are two criminal cases pending before the City Prosecutors of Mandaluyong City and Pasig City involving the same set of facts as in the present case wherein

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respondent Juliano Lim is the private complainant and petitioners are the respondents, to permit the taking of the deposition would be violative of their right against self-incrimination because by means of the oral deposition, respondents would seek to establish the allegations of fact in the complaint which are also the allegations of fact in the complaint-affidavits in the said criminal cases. only an accused in a criminal case can refuse to take the witness stand. The right to refuse to take the stand does not generally apply to parties in administrative cases or proceedings. The parties thereto can only refuse to answer if incriminating questions are propounded. This Court applied the exception a party who is not an accused in a criminal case is allowed not to take the witness stand in administrative cases/ proceedings that partook of the nature of a criminal proceeding or analogous to a criminal [59] proceeding. It is likewise the opinion of the Court that said exception applies to parties in civil actions which are criminal in nature. As long as the suit is criminal in nature, the party thereto can altogether decline to take the witness stand. It is not the character of the suit involved but the nature of the proceedings that controls. In the present controversy, the case is civil it being a suit for Annulment, Specific Performance with Damages. In order for petitioners to exercise the right to refuse to take the witness stand and to give their depositions, the case must partake of the nature of a criminal proceeding. The case on hand certainly cannot be categorized as such. The fact that there are two criminal cases pending which are allegedly based on the same set of facts as that of the civil case will not give them the right to refuse to take the witness stand and to give their depositions. They are not facing criminal charges in the civil case. Like an ordinary witness, they can invoke the right against self-incrimination only when the incriminating question is actually asked of them. Only if and when incriminating questions are thrown their way can they refuse to answer on the ground of their right against self-incrimination. People v. Judge Ayson, G.R. No. 85215, July 7, 1989, 175 SCRA 216 (letter-)Thereafter, his answers in response to questions by Cruz, were taken down in writing. Ramos' answers were to the effect inter alia that he had not indeed made disclosure of the tickets mentioned in the Audit Team's findings, that the proceeds had been "misused" by him, that although he had planned on paying back the money, he had been prevented from doing so, "perhaps (by) shame," that he was still willing to settle his obligation, and proferred a "compromise x x to pay on staggered basis, (and) the amount would be known in the next investigation; The right is NOT to "be compelled to be a witness against himself" The precept set out in that first sentence has a settled meaning. answer incriminating questions and not a prohibition of inquiry."
15

It prescribes an "option of refusal to

It is only when a particular question is addressed to him, the answer to which may incriminate him for some offense, that he may refuse to answer on the strength of the constitutional guaranty. The right against self-incrimination is not self- executing or automatically operational. It must be claimed. If not claimed by or in behalf of the witness, the protection does not come into play. It follows that the right may be waived, expressly, or impliedly, as by a failure to claim it at the appropriate time. b. Order in the examination of an individual witness Rule 132, Sec. 4

i.

Direct examination Rule 132, Sec. 5 ii. Cross examination GR: Rule 132, Sec. 6 EXC: 1. Where the witness is a hostile as so declared by the court, he may be cross examined only as to the subject matter of his examination-in-chief. (s12) 2. Witness examined is an accused because he is subject to cross-examination on matters covered by the direct examination (s1dr115) 2 basic purposes: 1. To bring out facts favorable to counsels client not established by the direct testimony; and 2. To enable counsel to impeach or to impair the credibility of the witness. Death or Absence of a Witness

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Dies before cross-examination is over testimony on the direct may be stricken out only with respect to the testimony not covered by the cross examination. Not cross-examined due to causes attributable to the cross-examining party and the witness had always made himself available for cross-examination Direct testimony of the 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 the witness. iii. iv. v. vi. Re-direct examination Rule 132, Sec. 7 Re-cross examination Rule 132, Sec. 8 Recalling the witness Rule 132, Sec. 9 Role of court in examination of witnesses

Dans Jr. v. People, G.R. No. 127073, January 29, 1998, 285 SCRA 505 DANS: The questioned Decision is a nullity because of the participation therein of Mr. Justice Garchitorena, whose long-standing bias and hostility towards President Marcos and Petitioner Imelda R. Marcos prevented him from having the requisite "cold neutrality of an impartial judge," violation of her right as an accused person to procedural Due Process of Law. 6) Were the members of the Sandiganbayan's First Division biased against petitioners ? Consequently, is the assailed decision dated September 24, 1993, valid ? Petitioners consider erroneous the active participation of the members of the Sandiganbayan's First Division during the hearing of Cuervo's testimony. The records reveal that, indeed, the court a quo may have participated more actively than usual in the examination of Cuervo in order to elicit from him the information that would nail down the prosecution's basic theory, thus rendering unassailable the conclusions which are now being impugned by petitioners who argue that the extensive questioning of 36 Cuervo made the Sandiganbayan, particularly Justice Garchitorena, not only a judge, but a prosecutor as well. Lest we be distracted by this allegation of bias on the part of respondent court, it must be remembered 37 that petitioners were never prejudiced by such questioning, which is about the only thing that would make a string of queries by a judge objectionable. As the following discussion will reveal, the trial court's interpretation of Cuervo's testimony is immaterial because of the sufficiency of the documentary evidence of the questions prosecution to prove the charges against herein petitioners. In view of the circumstances obtaining here, we find that the trial court's active role in this regard was necessary to clarify the mostly technical aspect of Cuervo's testimony. The Court notes that while petitioners have been making such an outcry since the promulgation of the questioned judgment regarding the line of questioning followed by respondent court, none of them ever objected to such queries during the trial. Neither did they attempt to salvage the situation by asking questions on re-direct examination if they harbored the impression that the court's cross-examination seriously prejudiced their case. Hence, even if the questions of Justice Garchitorena and the answers thereto of Cuervo were totally ignored by this Court, the prosecution's evidence would still firmly stand, and would definitely be more than sufficient to warrant a conviction beyond reasonable doubt. Read also Concurring and Dissenting opinion of Justice Francisco The problem with the Sandiganbayan's findings is that it completely ignored the unchallenged testimony of witness Cuervo and instead supplanted the same with valuations based on unfounded assumptions and/or hypothetical situations. For the Pasay property, for instance the Sandiganbayan particularly Justice Garchitorena, proceeded from his insistent assumed premise that the property was with "substantial amount of improvement." Note that counsel for petitioner Dans, Atty. Belo, apparently disturbed by the trend of the Sandiganbayan's questioning, could no longer help but raise the objection that the court is " inputing the value as station now but the witness is testifying on the fair market value at that time ."

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The undue interference of the Sandiganbayan Justices in the presentation of the case. The transcript of stenographic notes supports petitioner Dans' charge of " unfair alliance" of the Sandiganbayan with the prosecution during the trial particularly in the examination of the witnesses. For starters, the court questions were so numerous which, as per petitioner Dans' count, totalled 179 46 compared to prosecutor Queruben's questions which numbered merely 73. More noteworthy, however, is that the court propounded leading, misleading and baseless hypothetical questions all rolled into one. Aware that witness Cuervo's assessments of FMV of the property pertains to bare land, respondent court (PJ Garchitorena), during the examination of the witness, cunningly entices and misleads the latter that the subject conversation is a piece of land with substantial improvements. A priori convinced that the rentals were disadvantageous to the government, the court was not only assuming, but likewise insisting upon Cuervo that the valuation he gives pertains to land with improvements contrary to what the witness had testified that what he is giving value is a bare land. From this "mother" assumption flowed the continuous string of follow-up assumptions of the court. The court questions were far from being clarificatory. They were, in the main, queries that have no basis on the records. It has been said that purely abstract questions, assuming facts or theories for which there is no foundation in the evidence, are not admissible as a matter of right, although such questions may be permitted on cross-examination for the purpose of testing the knowledge of the witness as to the subject 51 on which he has testified. But cross-examination is the exclusive function of the advocate. Thus, any trend of court questioning which shows even a slight semblance of cross-examination is already offensive 52 to fundamental requirements of due process, for, this Court in "People v. Opida" has admonished that: ". . . the judge must not only be impartial but must also appear to be impartial, to give added assurance to the parties that his decision will be just. c. d. Judicial Affidavit Rule (A.M. No. 12-8-8-SC Leading and misleading questions Rule 132, Sec. 10

Leading questions not appropriate in - Direct and re-direct examinations, particularly when witness asked to testify about a major element of the cause of action or defense. - Allowed in cross and re-cross examinations, esp. cross. - why not advised in cross e. Methods of impeachment of adverse partys witness Rule 132, Sec. 11 1. By contradictory evidence 2. By evidence that his general reputation for truth, honesty, and integrity is bad; or 3. By evidence that he has made at other times statements inconsistent with his present testimony By contradictory evidence basis is a declaration made by the witness in his direct testimony By showing bad reputation evidence for this purpose should refer only to specific aspects 1. For truth 2. For honesty 3. For integrity Cannot be impeached for his reputation on other grounds ie troublesome, abrasive No impeachment by evidence of bad character but by bad reputation Evidence of good character of the witness Proof cannot be initiated by party calling the witness Only after character is attacked Must first be discredited; must first be impeached

Refers only to a witness not to an accused In a crim case accused may prove GMC relevant to the offense charged even before character is attacked HE, prosecution cannot initiate proof of the bad character of the accused Can only do so by rebuttal only if accused first presented evidence of his good character GR: No impeachment by evidence of particular wrongful acts

28

EXC:

prior conviction of an offense Shown by: 1. Examination (cross-examining him); or 2. Presenting the record of his prior conviction

NOT: examining another witness, unless witness is one who is competent to present in court the record of conviction Impeachment of the adverse party as a witness - Calling party may be bound by the adverse partys testimony, although calling party does not vouch the veracity, if it is not contradicted or remains unrebutted. Rule 132, Sec. 12 f. How the witness is impeached by evidence of inconsistent statements (laying the predicate) Rule 132, Sec. 13

Elements of laying the predicate: 1. The alleged statements must be related to the witness including the circumstances of the times, places, and persons present. 2. If the statements are in writing, they must be shown to him; 3. He must be asked whether he made such statement and also to explain to them if he admits making those statements. Objection is based on improper impeachment extrinsic evidence of a prior inconsistent statement without the required foundation is not admissible g. Additional rules on examination of witness i. Exclusion and separation of witnesses Rule 132, Sec. 15 ii. Memorandum Rule 132, Sec. 16 iii. Remainder admissible Rule 132, Sec. 17 iv. Right to inspect writing Rule 132, Sec. 18 Admissions and confessions CONFESSION An acknowledgement of guilt

5.

ADMISSION Merely a statement of fact not directly involving an acknowledgment of guilt or of the criminalintent to commit the offense with which one is charged In a general sense includes confessions,; broader because accordingly a confession is also an admission by the accused of the of the fact charged against him or of some fact essentialto the charge May be implied like an admission by silence Applied to a criminal case, admission is a statement by the accused, direct or implied, of facts pertinent to the issue, and tending, in connection with proof of other facts, to prove his guilt. Express or Implied Judicial or Extrajudicial Adoptive

Specific type of admission which refers only to an acknowledgment of guilt

Cannot be implied An acknowledgment in express terms, by a oarty in a criminal case, of his guilt of the crime charged

Concept of adoptive admission This admission occurs when a person manifests his assent to the statements of another person; may be received in evidence if it can be shown that a party adopted the statements as his own. Essence: A party may, by his words or conduct,voluntarily adopt or ratify anothers statements. Where it appears that a party clearly and unambiguously assented to or adopted the statements of another, evidence of those statements is admissible against him.

Estrada v. Desierto, G.R. Nos. 146710-15, April 3, 2001 Resolution, 356 SCRA 108 In the Angara Diary, the options of the petitioner started to dwindle when the armed forces withdrew its

29

support from him as President and commander-in-chief. Thus, Executive Secretary Angara had to ask Senate President Pimentel to advise petitioner to consider the option of dignified exit or resignation. Petitioner did not object to the suggested option but simply said he could never leave the country. Petitioners silence on this and other related suggestions can be taken as an admission by [16] him. Republic v. Kendrick Development Corp., G.R. No. 149576, August 8, 2006, 498 SCRA 220 Did the Court of Appeals err in reversing the trial courts order which declared respondent in default for its failure to file a valid answer? Yes, it did. A party may, by his words or conduct, voluntarily adopt or ratify anothers statement.
[7]

Where it

appears that a party clearly and unambiguously assented to or adopted the statements of another, evidence of those statements is admissible against him. This is the essence of the principle of adoptive admission. An adoptive admission is a partys reaction to a statement or action by another person when it is reasonable to treat the partys reaction as an admission of something stated or implied by the other person.
[9] [8]

By adoptive admission, a third persons statement becomes the admission of the party

embracing or espousing it. Adoptive admission may occur when a party: (a) (b) (c) (d) expressly agrees to or concurs in an oral statement made by another; hears a statement and later on essentially repeats it;
[11] [12] [10]

utters an acceptance or builds upon the assertion of another;

replies by way of rebuttal to some specific points raised by another but ignores further points which he or she has heard the other make
[13]

or
[14]

(e)

reads and signs a written statement made by another.

Here, respondent accepted the pronouncements of Atty. Garlitos and built its case on them. At no instance did it ever deny or contradict its former counsels statements. It went to great lengths to explain Atty. Garlitos testimony as well as its implications Res inter alios acta rule Things done between strangers ought not to injure those who are not parties to them. Two branches:
1.

Section 28 Rule 130 (has reference to EJ declarations ONLY, if made in open court - admissible) Admission by third party. The rule that the rights of a party cannot be prejudiced by an act, declaration, or omission of another, except as hereinafter provided. EXCEPTIONS: a. Admission by a co-partner or agent (sec 29 rule 130) b. Admission by a co-conspirator (sec 30 rule 130) c. Admission by privies (sec 31 rule 130)

2.

Section 34 Rule 132 Similar acts as evidence. Evidence that one did or did not do a certain thing at one time is not admissible to prove that he did or did not do the same or similar thing at another time; but it may be received to prove a specific intent or knowledge; identity, plan, system, scheme, habit, custom or usage, and the like.

People v. Gaudia, G.R. No. 146111, February 23, 2004, 423 SCRA 520

30

Similarly, appellants charge that the offers of compromise allegedly made by the parents of the appellant to Amalia, and by the appellant himself to Amalias husband should not have been taken against him by the trial court, even if sustained, will not exculpate him. To be sure, the offer of compromise allegedly made by appellant to Amalia Loyolas husband is hearsay evidence, and of no probative value. It was 46 only Amalia who testified as to the alleged offer, and she was not a party to the conversation which allegedly transpired at the Hagonoy Municipal Jail. A witness can only testify on facts which are based on 47 his personal knowledge or perception. The offer of compromise allegedly made by the appellants 48 parents to Amalia may have been the subject of testimony of Amalia. However, following the principle 49 of res inter alios acta alteri nocere non debet, the actions of his parents cannot prejudice the appellant, since he was not a party to the said conversation, nor was it shown that he was privy to the offer of compromise made by them to the mother of the victim. They cannot be considered as evidence against appellant but we reiterate that these errors are not enough to reverse the conviction of the appellant. People v. Raquel, G.R. No. 119005, December 2, 1996, 265 SCRA 248 A thorough review of the records of this case readily revealed that the identification of herein appellants as the culprits was based chiefly on the extrajudicial statement of accused Amado Ponce pointing to them as his co-perpetrators of the crime. As earlier stated, the said accused escaped from jail before he could testify in court and he has been at large since then. The extrajudicial statements of an accused implicating a co-accused may not be utilized against the latter, unless these are repeated in open court. If the accused never had the opportunity to cross-examine his co-accused on the latter's extrajudicial statements, it is elementary that the same are hearsay as against 14 said accused. That is exactly the situation, and the disadvantaged plight of appellants, in the case at bar. Extreme caution should be exercised by the courts in dealing with the confession of an accused which implicates his co-accused. A distinction, obviously, should be made between extrajudicial and judicial confessions. The former deprives the other accused of the opportunity to cross-examine the confessant, while in the latter his confession is thrown wide open for cross-examination and rebuttal. Take note of Footnote No. 17, re: exceptions to the res inter alios acta rule

17 (a) If the co-accused impliedly acquiesced in or adopted said confession by not questioning its truthfulness, as where it was made in his presence and he did not remonstrate against his being implicated therein (b) If the accused persons voluntarily and independently executed identical confessions without collusion, commonly known as interlocking confessions which confessions are corroborated by other evidence; and without contradiction by the other co-accused who was present (c) Where the accused admitted the facts stated by the confessant after being apprised of such confession (d) If they are charged as co-conspirators of the crime which was confessed by one of the accused and said confession is used only as a corroborating evidence (e) Where the confession is used as circumstantial evidence to show the probability of participation by the co-conspirator (f) Where the confessant testified for his co-defendant; or (g) Where the co-conspirator's extrajudicial confession is corroborated by other evidence of record

People v. Lising, G.R. No. 106210-11, January 30, 1998, 285 SCRA 595 Basically the present appeal is anchored on three issues: (a) the admissibility of the extrajudicial statements of appellants Manalili, Garcia and Lising The rule that an extrajudicial statement is evidence only against the person making it, also recognizes various exceptions. One such exception worth noting is the rule that where several

31

extrajudicial statements had been made by several persons charged with an offense and there could have been no collusion with reference to said several confessions, the facts that the statements are in all material respects identical, is confirmatory of the confession of the co-defendants and is admissible [17] against other persons implicated therein. They are also admissible as circumstantial evidence against the person implicated therein to show the probability of the latters actual participation in the commission of the crime and may likewise serve as corroborative evidence if it is clear from other facts and circumstances that other persons had participated in the perpetration of the crime charged and [18] proved. These are known as interlocking confessions. b. Admission by a party Rule 130, Sec. 26

Republic v. Bautista, G.R. No. 169801, September 11, 2007, 532 SCRA 598 the Court of Appeals was constrained to uphold the trial courts finding that there was no notification about the loss. On the other hand, petitioner insists that based on the records of the case, Rescue Security, as well as its security guards posted at the DOH premises and its personnel officer, had actual notice of the incident on the day the loss was discovered. The Court of Appeals overlooked relevant testimonial evidence, which, if properly appreciated, would justify a different conclusion. As pointed out by petitioner, Rescue Securitys own personnel officer, Oliver Liangco, testified that in the morning of 8 April 1996, he went to the DOH premises after he received at work a phone call from and a certain an Lourdes Macabulos, ocular inspection Planning of the
[17]

Officer

of

DOH-Region

3.

According

to Liangco, Macabulos informed him about the incident, prompting him to proceed to the DOH premises make storeroom. Furthermore, Liangco testified that Macabulosaccompanied him when he inspected the storeroom and even verbally conveyed to him that the drugs inside the storeroom were missing. This fact alone is sufficient proof that Rescue Security had been informed of the loss through its personnel, Oliver Liangco. Under Rule 130, Section 26 of the Rules on Evidence, the act, declaration or omission of a party as to a relevant fact may be given in evidence against him. This rule is based upon the notion that no man would make any declaration against himself, unless it is true.
[18]

On cross-examination, respondent Palma likewise testified that Liangco reported to her about the inspection he had conducted on the DOH premises on the day of the alleged loss. the DOH premises where the reported loss took place. The Court of Appeals sweepingly brushed aside Liangcos testimony and was persuaded by Macabulos rebuttal testimony denying that she had spoken toLiangco about the incident. The rule is that the positive and categorical assertions of witnesses generally prevail over bare denials. Such accordance of greater probative value to evidence that is positive in nature than that which is negative in character is a time[20] honored principle. Denial is a self-serving negative evidence that cannot be given greater weight than the declaration of credible witnesses who testified on affirmative [21] matters. Accordingly, Liangcos testimony that he was informed about the incident must be upheld. c. Offer of compromise Rule 130, Sec. 27 Good Samaritan Rule (see above rule) Used to refer to the rendering of voluntary aid to a suffering person. Subsequent Remedial Measures Prohibits admission when offered to prove the negligence of defendant except admissible if to prove some other purpose like the fact that the defendant had ownership xxx
[19]

Her testimony

corroborated Liangcos testimony that on the day of the discovery of the loss, Liangco was summoned to

People v. Sabagala, G.R. No. 131040, October 5, 2001, 366 SCRA 618

32

Appellant offered to marry private complainant in his desperate attempt to free himself from any liability. In a number of cases, we have held that an offer of marriage is considered an admission of guilt [68] by the accused. If it were true that he did not commit the crime, there is no reason why appellant would go to the extent of offering to marry the woman who supposedly fabricated false charges against him. This is not in accord with ordinary human experience. He would have stood his ground and defended his innocence.

d.

Admission by a third party Rule 130, Sec. 28

Gutierrez v. Palattao, A.M. No. RTJ-95-1326, July 8, 1998, 292 SCRA 26

Regarding the prosecutions failure to offer in evidence the original checks issued by Gutierrez, respondent Judge commented that the same is of no moment because while the original checks were not presented anymore, there is an admission that accused Gutierrez got back the bouncing checks from Ligaya Santos. This document was presented as an exhibit by the prosecution and was not denied by the accused. with respect to the prosecutions failure to present in evidence the original checks subject of the informations filed against the accused Gutierrez, We are not in accord with respondent Judges conclusion that same is inconsequential for her conviction. Undoubtedly, respondent Judge based the judgment of conviction, not on the checks themselves, as these were not proffered in evidence, but on petitioners written statement, dated November 15, 1995, which respondent judge considered as admission on the part of the petitioner that, she had indeed, issued the bouncing checks subject of the informations but that she had replaced them with new checks. By itself, herein complainants letter dated November 15, 1995, which respondent Judge construed as an admission that she indeed issued the checks subject of the Informations filed against her and that she was replacing them with new ones, does not prove beyond reasonable doubt her culpability under B.P. 22 and Article 315 (2)(d) of the Revised Penal Code. To establish her guilt, it is indispensable that the checks she issued for which she was subsequently charged, be offered in evidence because the [6] gravamen of the offense charged is the act of knowingly issuing a check with insufficient funds. Clearly, it was error to convict complainant on the basis of her letter alone. Alonte v. Savellano Jr., G.R. No. 131652, March 9, 1998, 287 SCRA 245 Thus, we have declared that at most the retraction is an afterthought which should not be given probative value. It would be a dangerous rule to reject the testimony taken before the court of justice simply because the witness who has given it later on changed his mind for one reason or another. Such a rule will make a solemn trial a mockery and place the investigation at the mercy of unscrupulous witnesses. Because affidavits of retraction can easily be secured from poor and ignorant witnesses, usually for monetary consideration, the Court has invariably regarded such affidavits as exceedingly unreliable. It is absurd to disregard a testimony that has undergone trial and scrutiny by the court and the parties simply because an affidavit withdrawing the testimony is subsequently presented by the defense. In the first place, any recantation must be tested in a public trial with sufficient opportunity given to the party adversely affected by it to cross-examine the recanting witness. e. Admission by a co-partner or agent Rule 130, Sec. 29 Admission by a conspirator Rule 130, Sec. 30

f.

Gardiner v. Magsalin, G.R. No. L-48185, August 18, 1941, 73 Phil. 114 Upon arraignment Catalino Fernandez pleaded guilty and his five coaccused, not guilty. At the trial of the latter, the former was called by the fiscal as his first witness, to testify to the alleged conspiracy. Upon objection of counsel for the defense, the respondent judge did no permit the witness Catalino Fernandez to testify against his coaccused, on the ground that he being a conspirator, his act or declaration is not admissible against his coconspirators until the conspiracy is shown by evidence other than such act or declaration, under section 12, rule 123 of the Rules of Court.

33

after proof of a conspiracy, the act or declaration of a conspirator relating to the conspiracy may be given in evidence. This rule has a well-settled meaning in jurisprudence, but apparently the respondents completely missed it. It is one of the exceptions to the "res inter alios" rule. It refers to an extrajudicial declaration of a conspirator not to his testimony by way of direct evidence. The evidence adduced in court by the coconspirators as witnesses are not declarations of conspirators, but directly testimony to the facts to which they testify. Aside from the discredit which attaches to them as accomplices, their evidence is entirely competent to establish the facts to which they testify. The rule for which counsel contends is applicable only when it sought to introduce extrajudicial declarations and statements of coconspirators. There is no rule requiring the prosecution to establish a conspiracy in order to permit a witness to testify what one or all of several accused persons did; and evidence adduced by coconspirators as witnesses, which is direct evidence of the facts to which they testify, is not within the rule requiring a conspiracy to be shown as a prerequisite to its admissibility.. People v. Cui, G.R. No. 121982, September 10, 1999, 314 SCRA 153

The general rule is that extra-judicial declarations of a co-conspirator made before the formation of the conspiracy or after the accomplishment of its object are inadmissible in evidence as against the other coconspirators, on the ground that the accused in a criminal case has the constitutional right to be 30 confronted with the witnesses against him and to cross-examine them. In the case at bar, the alleged conspiracy among the accused was not priorly established by independent evidence. Nor was it was shown that the extra-judicial statements of Basingan were made while they were engaged in carrying out the conspiracy. In truth, the statements were made after the conspiracy has ended and after the consummation of the crime. They were not acts or declarations made during the conspiracy's existence. Since the extra-judicial admissions were made after the supposed conspiracy, they are binding only upon the confessant and are not admissible against his co-accused; as against the 31 latter, the confession is hearsay. In fine, the extra-judicial statements of Basingan cannot be used against the Cuis, Obese and Sarte without doing violence against their constitutional right to confront Basingan and to cross-examine him. People v. Flores, G.R. No. 71980, March 18, 1991, 195 SCRA 295

The general rule that the confession of an accused may be given in evidence against him but that it is not competent evidence against his co-accused, admits of exceptions. Thus, this Court has held that where several accused are tried together for the same complaint, the testimony lawfully given by one during the trial implicating the others is competent evidence against the latter (People vs. Gumaling, 61 Phil. 165 [1935]; U.S. vs. Macamay, 36 Phil. 893 [1917]; People vs. Borromeo, 60 Phil. 691 [1934]).'The extrajudicial admission or confession of a co-conspirator out of court is different from the testimony given by a co-accused during trial. The first is admissible against the declarant alone, but the second is perfectly admissible against his co-accused' (People vs. Mabassa, 65 Phil. 538 [1938]) who had the right and opportunity to cross-examine the declarant. In this case, the extrajudicial confession of Flores is inadmissible because he was not assisted by 51 counsel. Moreover, his extrajudicial confession may not even be accorded probative value in view of his 52 admission of the crime in open court. That being the case, only his judicial confession should be weighed and considered. Conspiracy, which was established through the judicial confession of Flores, has been proven beyond reasonable doubt. It should be remembered that the rule that the statement of a conspirator relating to the conspiracy is not admissible in evidence unless the conspiracy is first shown by other independent evidence, applies only to an admission in an extrajudicial confession or declaration. It does not apply to a testimony given directly in court where the defendants have the opportunity to cross-examine the 55 declarant. Provided it is sincere in itself, given unhesitatingly and in a straightforward manner, and full of details which by their nature could not have been the result of deliberate afterthought, the testimony of 56 a co-conspirator, even if uncorroborated, is sufficient. g. Admission by privies Rule 130, Sec. 31 Admission by silence Rule 130, Sec. 32

h.

34

Villanueva v. Balaguer, G.R. No. 180197, June 23, 2009, 590 SCRA 661 Does the failure of the addressee to respond to a letter containing statements attributing to him commission of acts constituting actionable wrong, hence, adverse to his interest, and of such nature as would call for his reaction, reply, or comment if untrue, constitute his admission of said statements, consequently, may be used in evidence against him? Petitioner argues that by not responding to the above letter which expressly urged them to reply if the statements therein contained are untrue, respondents in effect admitted the matters stated therein, [30] pursuant to the rule on admission by silence in Sec. 32, Rule 130, and the disputable presumption that acquiescence resulted from a belief that the thing acquiesced in was conformable to the law or fact. the rule on admission by silence applies to adverse statements in writing if the party was carrying on a mutual correspondence with the declarant. However, if there was no such mutual correspondence, the rule is relaxed on the theory that while the party would have immediately reacted by a denial if the statements were orally made in his presence, such prompt response can generally not be expected if the party still has to resort to a written reply.
[33]

In the same manner, we also cannot assume an admission by silence on the part of Balaguer by virtue of his failure to protest or disclaim the attribution to him by the newspapers that he is the source of the articles. As explained above, the rule on admission by silence is relaxed when the statement is not made orally in ones presence or when one still has to resort to a written reply, or when there is no mutual correspondence between the parties. People v. Abo, G.R. No. 107235, March 2, 1994, 230 SCRA 612 It must be stressed that the victim did not personally know the accused. Nevertheless, as stated above, there was spontaneity in her recognition of the accused as her rapist. She did not, as well, hesitate to point to him as the rapist at the police station. The accused admitted this fact when he testified in court. But he did not testify that he protested the accusation or that he immediately told the policeman present that the accusation was false. That accusation, if untrue, naturally called for a denial. Then too, he further testified on direct examination that he was confronted by the victim's husband, Raymundo de Chavez, at the police station Compare: People v. Alegre, G.R. No. L-30423, November 7, 1979, 94 SCRA 109 The testimony of Sgt. Mariano Isla of the Pasay City police is to the effect that when he was investigating Melecio Cudillan, the latter pointed to Ramiro Alegre, Mario Comayas and Jesus Medalla as his companions in the commission of the crime. According to him, said appellants "just stared at him (Melecio Cudilla) and said nothing

We hold that the better rule is that the silence of an accused under custody, or his failure to deny statements by another implicating him in a crime, especially when such accused is neither asked to comment or reply to such implications or accusations, cannot be considered as a tacit confession of his participation in the commission of the crime. Such an inference of acquiescence drawn from his silence or failure to deny the statement would appear incompatible with the right of an accused against selfincrimination. People v. Paragsa, G.R. No. L-44060, July 20, 1978, 84 SCRA 105

Still another circumstance is the fact that Mirasol did not bother at all to rebut the testimony of the appellant and his witnesses to the effect that the accused and Mirasol were actually sweethearts; and that they had had two previous sexual communications before July 13, 1971, one of which happened on June 29, 1971 in the house of the accused, where Mirasol and the accused slept together in the evening of the same day after the mother of the accused and Mirasol had returned from the town fiesta of Bantayan, Cebu (p. 10, t.s.n., March 21, 1972). The rule allowing silence of a person to be taken as an implied admission of the truth of the statements uttered in his presence is applicable in criminal cases. But before the silence of a party can be taken as an admission of what is said, it must appear: (1) that he heard and understood the statement;

35

(2) that he was at liberty to interpose a denial; (3) that the statement was in respect to some matter affecting his rights or in which he was then interested, and calling, naturally, for an answer; (4) that the facts were within his knowledge; and (5) that the fact admitted or the inference to be drawn from his silence would be material to the issue. These requisites of admission by silence all obtain in the present case. Hence, the silence of Mirasol on the facts asserted by the accused and his witnesses may be safely construed as an admission of the truth of such assertion. i. Confessions Rule 130, Sec. 33

People v. Lorenzo, G.R. No. 110107, January 26, 1995, 240 SCRA 624 Note that what must be corroborated is the extrajudicial confession and not the testimony of the person to whom the confession is made, and the corroborative evidence required is not the testimony of another person who heard the confession but the evidence of corpus delicti. Except when expressly required by 18 law, the testimony of a single person, if credible and positive and if it satisfies the court as to the guilt of the accused beyond reasonable doubt, is sufficient to convict. People v. Rapeza, G.R. No. 169431, April 4, 2007, 520 SCRA 596

There is no direct evidence of appellants guilt except for the alleged confession and the corpus delicti. Upon careful examination of the alleged confession and the testimony of the witnesses, we hold that the alleged confession is inadmissible and must perforce be discarded. A confession is admissible in evidence if it is satisfactorily shown to have been obtained within the limits imposed by the 1987 Constitution. Thus, the Court has consistently held that an extrajudicial confession, to be admissible, must conform to the following requisites: 1) the confession must be voluntary; 2) the confession must be made with the assistance of a competent and independent counsel, preferably of the confessants choice; 3) the confession must be express; and 4) the confession must be in writing. Ladiana v. People, G.R. No. 144293, December 4, 2002, 393 SCRA 419 In a confession, there is an acknowledgment of guilt; in an admission, there is merely a statement of fact not directly involving an acknowledgment of guilt or of the criminal intent to commit the offense with which 26 one is charged. Thus, in the case at bar, a statement by the accused admitting the commission of the act charged against him but denying that it was done with criminal intent is an admission, not a confession. Hence, when a petitioner admits shooting the victim -- which eventually led to the latters death -- but denies having done it with any criminal intent because he did it in self-defense, it is merely an admission and not a confession. j. Similar acts as evidence Rule 130, Sec. 34

Propensity evidence Boston Bank of the Phils. v. Manalo, G.R. No. 158149, February 9, 2006, 482 SCRA 109

We reject the submission of respondents that they and Ramos had intended to incorporate the terms of payment contained in the three contracts of conditional sale executed by XEI and other lot buyers in the 69 "corresponding contract of conditional sale," which would later be signed by them. We have 70 meticulously reviewed the respondents complaint and find no such allegation therein. Indeed, respondents merely alleged in their complaint that they were bound to pay the balance of the purchase price of the property "in installments." When respondent Manalo, Jr. testified, he was never asked, on direct examination or even on cross-examination, whether the terms of payment of the balance of the purchase price of the lots under the contracts of conditional sale executed by XEI and other lot buyers would form part of the "corresponding contract of conditional sale" to be signed by them simultaneously with the payment of the balance of the downpayment on the purchase price.

36

The bare fact that other lot buyers were allowed to pay the balance of the purchase price of lots purchased by them in 120 or 180 monthly installments does not constitute evidence that XEI also agreed to give the respondents the same mode and timeline of payment of the P278,448.00. However, respondents failed to allege and prove, in the trial court, that, as a matter of business usage, habit or pattern of conduct, XEI granted all lot buyers the right to pay the balance of the purchase price in installments of 120 months of fixed amounts with pre-computed interests, and that XEI and the respondents had intended to adopt such terms of payment relative to the sale of the two lots in question. Indeed, respondents adduced in evidence the three contracts of conditional sale executed by XEI and other lot buyers merely to prove that XEI continued to sell lots in the subdivision as sales agent of OBM after it acquired said lots, not to prove usage, habit or pattern of conduct on the part of XEI to require all lot buyers in the subdivision to pay the balance of the purchase price of said lots in 120 months. It further 77 failed to prive that the trial court admitted the said deeds as part of the testimony of respondent Manalo, 78 Jr. Habit, custom, usage or pattern of conduct must be proved like any other facts. Courts must contend with the caveat that, before they admit evidence of usage, of habit or pattern of conduct, the offering party must establish the degree of specificity and frequency of uniform response that ensures more than a mere tendency to act in a given manner but rather, conduct that is semi-automatic in nature. The offering party must allege and prove specific, repetitive conduct that might constitute evidence of habit. The examples offered in evidence to prove habit, or pattern of evidence must be numerous enough to base on inference of systematic conduct. Mere similarity of contracts does not present the kind of sufficiently similar circumstances to outweigh the danger of prejudice and confusion. People v. Santos, G.R. No. 100225-26, May 11, 1993, 221 SCRA 715 Appellant Santos now complains that the affidavit of Ronaldo Guerrero was hearsay evidence, considering that the prosecution did not present Ronaldo Guerrero as a witness during the trial. We consider that the trial court did not commit reversible error in admitting the Guerrero affidavit for the limited purpose for provign knowledge or plan or shceme, and more specifically, that appellant knew that the particular corner of two (2) particular streets in Manila was a good place to ambus a vehicle and its passenters. People v. Dadles, G.R. Nos. 118620-21, September 1, 1997, 278 SCRA 393 As regards the victims Salvador and Antonio Alipan, the appellant points out that the testimony of Luzviminda who witnessed the alleged kidnapping demonstrate that the victims were not deprived of their liberty because they went with the appellant and his companions peacefully without being subjected to [27] threats and coercion. The court is not convinced. That the victims hands were not tied nor guns poked at their sides when they were taken by the appellants group do not conclusively preclude the deprivation of their liberty. The circumstances surrounding the taking of Salvador and Antonio, particularly the appellant and his companions previous conduct in kidnapping victims Alipio and Dionisio, plainly demonstrate their intent to likewise deprive Salvador and Antonio of their liberty. True it is that evidence that one did or did not do a cert ain thing at one time is not admissible to prove [28] that he did or did not do the same or similar thing at another time. However, it may be received to prove a specific intent or knowledge, identity, plan, system, scheme, habit, custom or usage, and the like.

x x x: Where a person is charged with the commission of a specific crime, testimony may be received of other similar acts, committed about the same time, for the purpose only of establishing the criminal intent [32] of the accused. (Underscoring supplied.) In this case we find that there is such a relation between both incidents of kidnapping charged in the two informations that proof of one tends to prove the other, and evidence of similar acts committed about the same time establishes the criminal intent of the appellant to deprive Salvador and Alipan of their liberty. First of all, both incidents happened almost simultaneously. The kidnapping of Alipio and Dionisio occurred only some thirty (30) minutes before Salvador and Antonio were taken from their home. The appellant and his companions were apparently well acquainted with the Tehidors and the Alipans who readily allowed them entrance into their respective houses on the fateful night of May 24, 1989. Alipio and Dionisio were taken by the appellants group on the pretext that they wanted to talk to Alipio. Similarly, the appellant claims that they took Salvador and Antonio only because they wanted to talk to the former. Alipios wife was warned not to tell the authorities about the incident. The same warning was given to Salvadors wife.

37

6.

Hearsay Rule Concept of independently relevant statement

The statements are admissible for some relevant reason independent of their truth or falsity. statement itself is either the very fact in issue or a circumstantial evidence of a fact in issue. operative acts which give rise to legal consequences.

The

Unifying element among independently relevant statements: Their relevance to the matter in issue is not dependent on their truth or falsity. Its relevance lies in its tenor or the fact that it was said. The SC acknowledged that the ban on hearsay does not include statements which are relevant independently of whether they are true or not, like statements of a person to show, among others, his tate of mind, mental condition, knowledge, belief, Intention, illwill and other emotions. Two Classes: 1.a. those statements which are the very facts in issue; 1.b. those statements which are circumstantial evidence of the fact in issue 2.a. statements of a person showing his state of mind (mental condition, knowledge, belief, intnention, illwill and other emotions) 2.b. statements of a person which shows his physical condition, as illness and the like 2.c. statements of a person from which an inference may be made as to the stae of mindo of another (knowledge, belief, motive, GF/BF etc of the latter 2.d. statements which may identify the date, place and person in question, and 2.e. statements showing lack of credibility Republic v. Heirs of Felipe Alejaga Sr., G.R. No. 146030, December 3, 2002, 393 SCRA 361 In that report, Recio supposedly admitted that he had not actually conducted an investigation and ocular inspection of the parcel of land. Cartagenas statement on Recios alleged admission may be considered as "independently relevant." A witness may testify as to the state of mind of another person -- the latters knowledge, belief, or good or bad faith -- and the formers statements may then be regarded as 32 independently relevant without violating the hearsay rule. Thus, because Cartagena took the witness stand and opened himself to cross-examination, the 33 Investigation Report he had submitted to the director of the Bureau of Lands constitutes part of his testimony. Those portions of the report that consisted of his personal knowledge, perceptions and 34 conclusions are not hearsay. On the other hand, the part referring to the statement made by Recio may 35 be considered as independently relevant. The doctrine on independently relevant statements holds that conversations communicated to a witness by a third person may be admitted as proof that, regardless of their truth or falsity, they were actually made. Evidence as to the making of such statements is not secondary but primary, for in itself it (a) 36 37 constitutes a fact in issue or (b) is circumstantially relevant to the existence of such fact.

Meaning of hearsay An out-of-court statement offered for the truth of the matter asserted. It is the purpose for which the evidence is offered which would determine whether the same is hearsay or not. Elements: 1. There must be an out-of-court statement. 2. The statement is repeated and offered by the witness in court to prove the truth of the matters asserted by the statement. Hearsay purpose vs non-hearsay purpose As long as an out-of-court statement is offered for a non-hearsay purpose, the statement is admissible if it has relevance to the matter in issue. Ex. 1. Statements relating to the state of mind/ offered to prove mental state of the declarant 2. Out-of-court statements relating to the state of mind of the listener/ offered to prove its effect on the listener/hearer 3. Out-of-court statement offered to prove that the statement was made 4. Independently relevant statements

38

5. A testimony by the hearer that such statement was made is not hearsay. WHY? Testifying as to his personal knowledge that the statement was uttered. Cruz v. Planters Products, Inc., G.R. No. 158649, February 18, 2013 Statement of account was not hearsay The petitioners insist that they could not be held liable for the balance stated in Exhibit V due to such document being hearsay as a mere statement of account.50 They argue that Cristina Llanera, the witness of PPI on the matter, was only a warehouse assistant who was not shown to be either an accountant, or bookkeeper, or auditor or a person knowledgeable in accounting. They posit that Llaneras testimony on Exhibit V was limited to stating that she had prepared the statement of account contained therein; that she did not affirm the correctness or veracity of the contents of the document;51 and that, consequently, Exhibit V had no evidentiary value as proof of their total liability for P240,355.10, the amount stated therein. We do not agree with the petitioners. With Exhibit V being a private document, authentication pursuant to the rules on evidence was a condition for its admissibility. Llanera, admittedly the person who had prepared the document, was competent to testify on the due execution and authenticity of Exhibit V. Reason for exclusion of hearsay evidence The witness credibility, accuracy of perception and recollection, can be tested before the court through cross-examination. Those of out-of-court declarant cannot. Latters statements are unreliable. His statement lack the indicia of trustworthiness. Philippine Free Press v. Court of Appeals, G.R. No. 132864, October 24, 2005, 473 SCRA 639 Jurisprudence instructs that evidence of statement made or a testimony is hearsay if offered against a party who has no opportunity to cross-examine the witness. Hearsay evidence is excluded precisely because the party against whom it is presented is deprived of or is bereft of opportunity to [15] cross-examine the persons to whom the statements or writings are attributed. And there can be no quibbling that because death has supervened, the late Gen Menzi, like the other purported Marcos subalterns, Messrs. Baizas and De Vega, cannot cross-examine the Locsins for the threatening statements allegedly made by them for the late President. Even if petitioner succeeds in halving its testimonial evidence, one-half purporting to quote the words of a live witness and the other half purporting to quote what the live witness heard from one already dead, the other pertaining to the dead shall nevertheless remain hearsay in character. The all too familiar rule is that a witness can testify only to those facts which he knows of his own knowledge.
[20]

There can be no quibbling that petitioners witnesses cannot testify respecting what

President Marcos said to Gen. Menzi about the acquisition of petitioners newspaper, if any there be, precisely because none of said witnesses ever had an opportunity to hear what the two talked about. Comilang v. Burcena, G.R. No. 146853, February 13, 2006, 482 SCRA 342 Petitioner further argues that Margaritas statement on the witness stand that Dominga told her that the respondents sent her money to buy the subject property, should not have been given weight or credence by the RTC and the CA because it is hearsay and has no probative value. Margaritas testimony was not presented to prove the truth thereof, but only to establish the fact that Dominga narrated to Margarita the source of the funds used in the purchase of the subject 14 property. What was sought to be admitted in evidence, and what was actually admitted in evidence, was the fact that the statement was made by Dominga to Margarita, not necessarily that the matters stated by her were true. The said utterance is in the nature of an independently relevant statement which may be 15 admitted in evidence as such, but not necessarily to prove the truth thereof. Thus, while it is true that the testimony of a witness regarding a statement made by another person, if intended to establish the truth of the fact asserted in the statement, is clearly hearsay evidence, it is otherwise if the purpose of placing the statement in the record is merely to establish the fact that the statement was made or the tenor of such statement. Regardless of the truth or falsity of a statement, when the fact that it has been made is relevant, the hearsay rule does not apply and the statement may

39

be shown. As a matter of fact, evidence as to the making of the statement is not secondary but primary, for the statement itself may constitute a fact in issue, or be circumstantially relevant as to the existence of 16 such a fact. For this reason, the statement attributed to Dominga regarding the source of the funds used to purchase the subject property related to the court by Margarita is admissible if only to establish the fact that such statement was made and the tenor thereof. Patula v. People, G.R. No. 164457, April 11, 2012 Whether or not Guivencanstestimony onthe ledgers and receipts (Exhibits B to YY, and their derivatives, inclusive) to prove petitioners misappropriation or conversion wasinadmissible for being hearsay. On his part, Go essentially described for the trial court the various duties of petitioner as Footluckers sales representative. On her part, Guivencan conceded having no personal knowledge of the amounts actually received by petitioner from the customersor remitted by petitioner to Footluckers.This means that persons other than Guivencan prepared Exhibits B to YY and their derivatives, inclusive,and that Guivencan based her testimony on the entries found in the receipts supposedly issued by petitioner and in the ledgers held by Footluckers corresponding to each customer, as well as on the unsworn statements of some of the customers. Accordingly, her being the only witness who testified on the entries effectively deprived the RTC of the reasonable opportunity to validate and test the veracity and reliability of the entries as evidence of petitioners misappropriation or conversion through cross -examination by petitioner. The denial of that opportunity rendered theentire proof of misappropriation or conversion hearsay, and thus unreliable and untrustworthy for purposes of determining the guilt or innocence of the accused. Moreover, the theory of the hearsay rule is that when a human utterance is offered as evidence of the truth of the fact asserted, the credit of the assertor becomes the basis of inference, and, therefore, the assertion can be received as evidence only when made on the witness stand, subject to the test of crossexamination. However, if an extrajudicial utterance is offered, not as an assertion to prove the matter asserted but without reference to the truth of the matter asserted, the hearsay rule does not apply. We thus stress that the rule excluding hearsay as evidence is based upon serious concerns about the trustworthiness and reliability of hearsay evidence due to its not being given under oath or solemn affirmation and due to its not being subjected to cross-examination by the opposing counsel to test the perception, memory, veracity and articulateness of the out-of-court declarant or actor upon whose reliability the worth of the out-of-court statement depends.
[27]

Based on the foregoing considerations, Guivencans testimony as well as Exhibits B to YY, and their derivatives, inclusive, must be entirely rejected as proof of petitioners misappropriation or conversion. Exceptions to the hearsay rule 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. i. Dying declarations s37r130 Declaration against interest s38r130 Act or declaration against pedigree s39r130 Family reputation or tradition regarding pedigree s40r130 Common reputation s41r130 Part of the res gestae s42r130 Entries in the course of business s43r130 Entries in official records s44r130 Commercial lists and the like s45r130 Learned treatises s46r130 Testimony or deposition at a former trial s47r130 Dying declaration Rule 130, Sec. 37 It is admissible to provide the identity of the accused and the deceased, tho show the cause of death of the deceased, and the circumstances under which the assault was made upon him. Why? Necessity and trustworthiness. Admissible in ANY case as long as the relevance is satisfied where the subject of inquiry is the

40

death of the declarant himself Elements of a dying declaration: 1. That the declaration is one made by a dying person 2. That the declaration was made by said dying person under a consciousness of his imminent death 3. That the declaration refers to the cause and circumstances surrounding the death of the declaratn and not of anyone else 4. That the declaration is offered in a case where the declarants death is the subject of inquiry 5. That declarant is competent as a witness had he survived 6. That declarant should have died. (if survives -> part of res gestae) People v. Gado, G.R. No. 129556, November 11, 1998, 298 SCRA 466 Capitalizing on the fact that the victim was still able to stand and walk even after the first declaration was made, accused-appellant contends that there could not have possibly been a belief of a looming and impending death on the part of the victim. We cannot quite agree. From the established facts in the case at bar, the trial court correctly considered the declaration of the victim a dying declaration and, therefore, admissible. The declarant was conscious of his impending death. This may be gleaned not only from the victim's insistence right after he reached their house that he should immediately be brought to the hospital and that he was becoming weaker by the moment, but also from the serious nature of his wounds (People vs. Sarabia, 127 SCRA 100 [1984] and the fact that the victim died shortly afterwards People v. Odencio, G.R. No. L-31961, January 9, 1979, 88 SCRA 1

In that unsigned antemortem declaration, Talib revealed that Florencio Odencio suspected that he and Oranen had masterminded the theft of Joseph Odencio's two carabaos, and that, on the other hand, Guiamelon suspected Talib of having stolen the carabao of Damiog, the father-in-law of Guiamelon. It was stated further in the same dying declaration that Talib had told Patrolman Saada that he wanted to sign it but that he could not do so because of the wound in his arm. Talib also articulated his belief that he was going to die because he could hardly breathe and his wound was painful. Moreover, Talib's dying declaration was sufficiently proven. The rule is that a dying declaration may be oral or written If oral, the witness, who heard it, may testify thereto without the necessity, of course, of reproducing exactly the words of the decedent, if he is able to give the substance thereof. An unsigned dying declaration may be used as a memorandum by the witness who took it down. People v. Santos, G.R. No. 94545, April 4, 1997, 270 SCRA 650 In the case at bar, the victim's declaration consisted of the words "Pare Pran." Under the circumstances, however, he could not have been expected to articulate his awareness of something so obvious the inevitability of his demise or to have the energy to do so. The nature and extent of said injuries underscored the seriousness of his condition and they later proved by themselves that the utterances of 31 the deceased were made under a consciousness of an impending death. That his demise thereafter came swiftly, although not instantaneously, further emphasized the victim's realization of the hopelessness of his recovery. People v. Serenas, G.R. No. 188124, June 29, 2010, 622 SCRA 485 All requisites for a dying declaration were sufficiently met by the statement of the victim communicated to Cesar. First, the statement pertained to Nio being stabbed, particularly pin-pointing Joe-An as the perpetrator. Second, Nio must have been fully aware that he was on the brink of death considering his bloodied condition when Cesar met him near the bridge. Third, the competence of Nio is unquestionable had he survived the stabbing incident. Fourth, Nios statement was being offered in a criminal prosecution for his murder. Parel v. Prudencio, G.R. No. 146556, April 19, 2006, 487 SCRA 405

The theory under which declarations against interest are received in evidence notwithstanding they are hearsay is that the necessity of the occasion renders the reception of such evidence advisable and, further that the reliability of such declaration asserts facts which are against his own pecuniary or moral 9 interest.

41

The affiant, Florentino, who died in 1989 was petitioners father and had adequate knowledge with respect to the subject covered by his statement. In said affidavit, Florentino categorically declared that while he is the occupant of the residential building, he is not the owner of the same as it is owned by respondent who is residing in Quezon City. It is safe to presume that he would not have made such declaration unless he believed it to be true, as it is prejudicial to himself as well as to his childrens 10 interests as his heirs. A declaration against interest is the best evidence which affords the greatest 11 certainty of the facts in dispute. Notably, during Florentinos lifetime, from 1973, the year he executed said affidavit until 1989, the year of his death, there is no showing that he had revoked such affidavit even when a criminal complaint for trespass to dwelling had been filed by respondent against him (Florentino) and petitioner in 1988 regarding the subject house which the trial court dismissed due to the absence of evidence showing that petitioner entered the house against the latters will and held that the remedy of 12 respondent was to file an action for ejectment; and even when a complaint for unlawful detainer was filed against petitioner and his wife also in 1988 which was subsequently dismissed on the ground that respondents action should be an accion publiciana which is beyond the jurisdiction of the Municipal Trial 13 Court. ii. Declaration against interest Rule 130, Sec. 38

Ex. Statement that owes Cr a sum of money; oral acknolwedgmemnt by Pr that received $$ from agent Refers to declaration made when person is: 1. Dead or 2. Unable to testify 0r 3. Declaration when made was known to the declarant himself to be against his interest, pecuniary or moral, and which would not have been made unless he believed it to be true Not apply where declarant is available as a witness If declaration is favorable to the interest of the declaration, not fall as exception to hearsay Pecuniary or moral interest, BUT also one against ones penal interest. WHY? Because if one admits a crime, he is also civilly liable, which is pecuniary

People v. Bernal, G.R. No. 113685, June 19, 1997, 274 SCRA 197

Openda, Jr.'s revelation to Enriquez regarding his illicit relationship with Bernal's wife is admissible in evidence, pursuant to Section 38, Rule 130 of the Revised Rules on Evidence, viz.: Sec. 38. Declaration against interest. The declaration made by a person deceased, or unable to testify, against the interest of the declarant, if the fact asserted in the declaration was at the time it was made so far contrary to declarant's own interest, that a reasonable man in his position would not have made the declaration unless he believed it to be true, may be received in evidence against himself or his successors-in-interest and against third persons. With the deletion of the phrase "pecuniary or moral interest" from the present provision, it is safe to assume that "declaration against interest" has been expanded to include all kinds of interest, that is, 11 pecuniary, proprietary, moral or even penal. A statement may be admissible when it complies with the following requisites, to wit: "(1) that the declarant is dead or unable to testify; (2) that it relates to a fact against the interest of the declarant; (3) that at the time he made said declaration the declarant was aware that the same was contrary to his aforesaid interest; and (4) that the declarant had no motive to falsify and believed such declaration to be 12 true." Openda, Jr., having been missing since his abduction, cannot be called upon to testify. His confession to Enriquez, definitely a declaration against his own interest, since his affair with Naty Bernal was a crime, is 13 admissible in evidence because no sane person will be presumed to tell a falsehood to his own 14 detriment.

iii.

Act or declaration about pedigree Rule 130, Sec. 39 Requisites: 1. The declarant is dead, or unable to testify; 2. That the declarant is related by birth or marriage to the person whose pedigree is in issue; 3. The declaration was made before the controversy;and 4. The relationship between the 2 person is shown by evidence other than such act or declaration.

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People v. Pruna, G.R. No. 138471, October 10, 2002, 390 SCRA 577 Tison v. Court of Appeals, G.R. No. 121027, July 31, 1997, 276 SCRA 582 Nepomuceno v. Lopez, G.R. No. 181258, March 18, 2010 iv. Family reputation or tradition regarding pedigree Rule 130, Sec. 40 Involves: 1. Statement by a member of the family either by consanguinity or affinity; 2. The statement is about the reputation or tradition of the family in respect to the pedigree of any member of the family; 3. The reputation or tradition is one exisiting previous to the controversy Jison v. Court of Appeals, G.R. No. 124853, February 24, 1998, 286 SCRA 495 Mendoza v. Court of Appeals, G.R. No. 86302, September 24, 1991, 201 SCRA 675 v. Common reputation Rule 130, Sec. 41

Admissible because of trustworthiness. Can it establish pedigree? No. Pedigree is established by reputation in the family and not in the community. vi. Part of the res gestae

Rule 130, Sec. 42 Things done Rationale: it is the event that speaks for itself through the spontaneous words or instinctive words or conduct of the witness and not the witness speaking for and about the event. Still hearsay but an admissible hearsay as an exception to the hearsay rule Limited to 2 matters: 1. Spontaneous statements (res gestae is the startling occurrence) 2. Verbal acts (res gestae are the statements accompanying the equivocal act) Note: must relate to the circumstances of the event Spontaneous Statements Requisites admissible spontaneous statement: 1. That there is a startling event or occurrence taking place 2. That while the event is taking place or immediately prior to or subsequent thereto, a statement has been made 3. The statements were made before the declarant had the time to contrive or devise a falsehood 4. That the statement relates to the circumstances of the startling event or occurrence or that the statements must concern the occurrence in question and its immediate attending circumstances Declaration deemed part of res gestae when: 1. The principal act, the res gestae, is a startling occurrence 2. The statements were made before the declarant had time to contrive or devise 3. The statements concern the occurrence in question and its immediately attending circumstances. Verbal Acts S42r130 - A statement accompanying an equivocal act material to the issue, and giving it a legal significance. - Presupposes conduct that is equioal or ambiguous. - Only acquires meaning (legal significance) because of the statements accompanying the act. - It is the statement that identifies the character, purpose or motive of the act. Requisites: 1. The principal act to be characterized must be equivocal; 2. The equivocal act must be material to the issue; 3. The statement must accompany the equivocal act; and 4. The statement gives a legal significance to the equivocal act.

Ilocos Norte Electric Co. v. Court of Appeals, G.R. No. 53401, November 6, 1989, 179 SCRA 5 Bayquen v. Court of Appeals, G.R. No. 93851, March 6, 1992, 207 SCRA 114 DBP Pool of Accredited Insurance Companies v. Radio Mindanao Network, Inc., G.R. No. 147039, January 27, 2006, 480 SCRA 314

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People v. Palmones, G.R. No. 136303, July 18, 2000, 336 SCRA 80 People v. Villarama, G.R. No. 139211, February 12, 2003, 397 SCRA 306 Belbis v. People, G.R. No. 181052, November 14, 2012 vii. Entries in the course of business Rule 130, Sec. 43

Ex. Breach of contract suits, collection of a sum of money Elements 1. Entries were made at, or near the time of the transactions referred to 2. Such entries were made in the regular course of business 3. The person making the entries was in a position toknow the facts stated in the entries 4. The person making the entries did so in his professional capacity, or in the performance of duty and in the regular course of business; and 5. The person making the entry is now dead or unable to testify. Security Bank and Trust Co. v. Gan, G.R. No. 150464, June 27, 2006, 493 SCRA 239 Heirs of Ignacio Conti v. Court of Appeals, G.R. No. 118464, December 21, 1998, 300 SCRA 345 PAL v. Ramos, G.R. No. 92740, March 23, 1992, 207 SCRA 461 Read: Written Notations as Evidence: An Inquiry by Rogelio E. Subong, 207 SCRA 473 Nestle Philippines, Inc. v. FY Sons Inc., G.R. No. 150780, May 5, 2006, 489 SCRA 624 viii Entries in official records Rule 130, Sec. 44 Requisites: 1. That the entry was made by a public officer, or by another person specially enjoined by law to do so; 2. That it was made by the public officer in the performance of his duties, or by such ather person in the performance of a duty specially enjoined by law; and 3. That the public officer or other person had sufficient knowledge of the facts by him stated, which must have been acquired by him personally or through official information. Barcelon Roxas Securities Inc. v. Commissioner of Internal Revenue, G.R. No. 157064, August 7, 2006, 498 SCRA 126 People v. San Gabriel, G.R. No. 107735, February 1, 1996, 253 SCRA 84 Tarapen v. People, G.R. No. 173824, August 28, 2008, 563 SCRA 577 ix. Commercial lists and the like Rule 130, Sec. 45 Requisites: 1. Made by persons engaged in that occupation 2. Generally used and relied upon by them 3. Lists and reports are published PNOC Shipping and Transport Corp. v. Court of Appeals, G.R. No. 107518, October 8, 1998, 297 SCRA 402 x. Learned treaties Rule 130, Sec. 46 Requisites: 1. If an expert on the subject testifies to the expertise of the writer 2. If the court takes judicial notice of such fact xi. Testimony or deposition at a former trial Rule 130, Sec. 47 Requisites: 1. The witness is dead or unable to testify; 2. His testimony or deposition was given in a former case or proceeding, judicial or administrative, between the same parties or those representing the same interests; 3. The former case involved the same subject as that in the present case, although on different causes of action; 4. The issue testified to by the witness in the former trial is the same issue involved in the present case; and 5. The adverse party had an opportunity to cross-examine the witness in the former case. Manliclic v. Calaunan, G.R. No. 150157, January 25, 2007, 512 SCRA 642

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xii.

Newspapers or diary

Estrada v. Desierto, G.R. Nos. 146710-15, April 3, 2001 Resolution, 356 SCRA 108 Bedol v. Comelec, G.R. No. 179830, December 3, 2009, 606 SCRA 554 7. Opinion rule Rule 130, Sec. 48 Opinion of expert witness Rule 130, Sec. 49

a.

Is the court bound by the opinion of an expert ie handwriting expert? NO. To be considered or weighed in light of its own general knowledge and experience upon the subject inquiry. Probative force does not lie in a mere statement of theory or opinion, but rather in the aid that he can render to the courts in showing the facts which serve as a basis for his criterion and reasons upon which logic of his conclusion is founded. Resort is not mandatory or indispensable

Jimenez v. Commission on Ecumenical Mission and Relations of the United Presbyterian Church in the USA, G.R. No. 140472, June 10, 2002, 383 SCRA 326 Heirs of Severa P. Gregorio v. CA, G.R. No. 117609, December 29, 1998, 300 SCRA 565 b. Opinion of ordinary witness Rule 130, Sec. 50

Hernandez v. San Juan-Santos, G.R. No. 166470, August 7, 2009, 595 SCRA 464 Fullero v. People, G.R. No. 170583, September 12, 2007, 533 SCRA 97 People v. Martinez, G.R. No. 116918, June 19, 1997, 274 SCRA 259 De Jesus v. Court of Appeals, G.R. No. 127857, June 20, 2006, 491 SCRA 325 8. a. b. c. Character evidence Criminal cases Rule 130, Sec. 51 (a) Civil cases Rule 130, Sec. 51 (b) Good character of a witness Rule 130, Sec. 51 (c) Rule 132, Sec. 14

People v. Lee, G.R. No. 139070, May 29, 2002, 382 SCRA 598 The accused may prove his good moral character which is pertinent to the moral trait involved in the offense charged. When the accused presents proof of his good moral character, this strengthens the presumption of innocence, and where good character and reputation are established, an inference arises that the accused did not commit the crime charged. This view proceeds from the theory that a person of good character and high reputation is not likely to have committed the act charged against him. The prosecution may not prove the bad moral character of the accused except only in rebuttal and when such evidence is pertinent to the moral trait involved in the offense charged. This is intended to avoid unfair prejudice to the accused who might otherwise be convicted not because he is guilty but because he is a 36 person of bad character. The offering of character evidence on his behalf is a privilege of the defendant, 37 and the prosecution cannot comment on the failure of the defendant to produce such evidence. Once the defendant raises the issue of his good character, the prosecution may, in rebuttal, offer evidence of the defendants bad character. Civil Service Commission v. Belagan, G.R. No. 132164, October 19, 2004, 440 SCRA 578 It will be readily observed that the above provision pertains only to criminal cases, not to administrative offenses. And even assuming that this technical rule of evidence can be applied here, still, we cannot sustain respondents posture. Not every good or bad moral character of the offended party may be proved under this provision. Only those which would establish the probability or improbability of the offense charged. This means that the character evidence must be limited to the traits and characteristics involved in the type of offense 16 charged. Thus, on a charge of rape - character for chastity, on a charge of assault - character for 17 peaceableness or violence, and on a charge of embezzlement - character for honesty. In one rape case, where it was established that the alleged victim was morally loose and apparently uncaring about her chastity, we found the conviction of the accused doubtful.

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People v. Edualino, G.R. No. 119072, April 11, 1997, 271 SCRA 189 People v. Deopita, G.R. No. 130601, December 4, 2000, 436 SCRA 794 9. Rule on Examination of a Child witness (A.M. No. 004-07-SC)

Applicability of the rule Unless otherwise provided, this Rule shall govern the examination of child witnesses who are victims of crime, accused of a crime, and witnesses to crime. It shall apply in all criminal proceedings and noncriminal proceedings involving child witnesses. Meaning of child witness any person who at the time of giving testimony is below the age of eighteen (18) years. In child abuse cases, a child includes one over eighteen (18) years but is found by the court as unable to fully take care of himself or protect himself from abuse, neglect, cruelty, exploitation, or discrimination because of a physical or mental disability or condition. Competency of a child witness Every child is presumed qualified to be a witness. However, 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. (a) Proof of necessity. - A party seeking a competency examination must present proof of necessity of competency examination. The age of the child by itself is not a sufficient basis for a competency examination. (b) Burden of proof. - To rebut the presumption of competence enjoyed by a child, the burden of proof lies on the party challenging his competence. (c) Persons allowed at competency examination. Only 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; and (5) The defendant, unless the court determines that competence can be fully evaluated in his absence. (d) Conduct of examination. - Examination of a child as to his competence shall be conducted only by the judge. Counsel for the parties, however, can submit questions to the judge that he may, in his discretion, ask the child. (e) Developmentally appropriate questions. - The questions asked at the competency examination shall be appropriate to the age and developmental level of the child; shall not be related to the issues at trial; and shall focus on the ability of the child to remember, communicate, distinguish between truth and falsehood, and appreciate the duty to testify truthfully. (f) Continuing duty to assess competence. - The court has the duty of continuously assessing the competence of the child throughout his testimony.

Examination of a child witness The examination of a child witness presented in a hearing or 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 him to testify in the manner provided in this Rule.

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Live-link TV testimony of a child witness (a) The prosecutor, counsel or the guardian ad litem may apply for an order that the testimony of the child be taken in a room outside the courtroom and be televised to the courtroom by live-link television. Before the guardian ad litem applies for an order under this section, he 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 ltiem is convinced that the decision of the prosecutor or counsel not to apply will cause the child serious emotional trauma, he himself may apply for the order. The 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. (b) 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. (c) 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. (d) The judge may exclude any person, including the accused, whose presence or conduct causes fear to the child. (e) 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 trial when the topic of testifying was discussed with him 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 family regarding the events about which he will testify; and (12) Other relevant factors, such as court atmosphere and formalities of court procedure. (f) The 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 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. (g) If 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 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

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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 excluded. (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. (h) 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 as provided in section 31(b).

f.

Videotaped deposition of a child witness

(a) The 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 under this section, he shall consult with the prosecutor or counsel subject to the second and third paragraphs of section 25(a). (b) If 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. (c) The judge shall preside at the videotaped deposition of a child. Objections 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. The other persons who may be permitted to be present at the proceeding are: (1) The prosecutor; (2) The defense counsel; (3) The guardian ad litem; (4) The accused, subject to sub-section (e); (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 support persons, the facilitator and interpreter, if any; (7) The court stenographer; and (8) Persons necessary to operate the videotape equipment. (d) The rights of the accused during trial, especially the right to counsel and to confront and crossexamine the child, shall not be violated during the deposition. (e) If 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. (f) The videotaped deposition shall be preserved and stenographically recorded. The videotape and the stenographic notes shall be transmitted to the clerk of the court where the case is pending for safekeeping and shall be made a part of the record.

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(g) The 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. (h) The videotaped deposition and stenographic notes shall be subject to a protective order as provided in section 31(b). (i) If, at the time of trial, the court finds that the child is unable to testify for a reason stated in section 25(f) of this Rule, or is unavailable for any reason described in section 4(c), Rule 23 of the 1997 Rules of Civil Procedure, 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. (j) 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. g. 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: (a) 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 circumstance must be proved by the proponent. (b) In 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: (1) Whether there is a motive to lie; (2) The general character of the declarant child; (3) Whether more than one person heard the statement; (4) Whether the statement was spontaneous; (5) The timing of the statement and the relationship between the declarant child and witness; (6) Cross-examination could not show the lack of knowledge of the declarant child; (7) The possibility of faulty recollection of the declarant child is remote; and (8) The circumstances surrounding the statement are such that there is no reason to suppose the declarant child misrepresented the involvement of the accused. (c) The child witness shall be considered unavailable under the following situations: (1) Is deceased, suffers from physical infirmity, lack of memory, mental illness, or will be exposed to severe psychological injury; or (2) Is absent from the hearing and the proponent of his statement has been unable to procure his attendance by process or other reasonable means. (d) When the child witness is unavailable, his hearsay testimony shall be admitted only if corroborated by other admissible evidence.

Requisites:

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1. The 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; 2. 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; 3. When the child is unavailable (deceased; suffers from physical infirmity, mental illness, loss of memory, will be exposed to severe psychological injury), the fact of such circumstance must be proved by the proponent and the hearsay testimony shall be admitted only if corroborated by other admissible evidence. h. Sexual abuse shield rule Rep. Act No. 8505 (Rape Victim Assistance and Protection Act of 1998), Sec. 6 (Rape Shield) In prosecutions for rape, evidence of complainant's past sexual conduct, opinion thereof or of his/her reputation shall not be admitted unless, and only to the extent that the court finds, that such evidence is material and relevant to the case. See People v. Lee, 382 SCRA 598 (footnote 42) i. Protective orders

a) Confidentiality of records. - Any record regarding a child shall be confidential and kept under seal. Except upon written request and order of the court, a record shall only be released to the following: (1) Members of the court staff for administrative use; (2) The prosecuting attorney; (3) Defense counsel; (4) The guardian ad litem; (5) Agents of investigating law enforcement agencies; and (6) Other persons as determined by the court. (b) Protective order. - 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 by any person mentioned in sub-section (a) 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 signs a written affirmation that he has received and read a copy of the protective order; that he submits to the jurisdiction of the court with respect to the protective order; and that in case of violation thereof, he 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 thirty (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.

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(7) This protective order shall remain in full force and effect until further order of the court. (c) Additional protective orders. - The court may, motu proprio or on motion of any party, the child, his parents, legal guardian, or the guardian ad litem, issue additional orders to protect the privacy of the child. Obedencio v. Judge Murillo, A.M. No. RTJ-03-1753, February 5, 2004, 422 SCRA 21 People v. Baring, Jr., G.R. No. 137933, January 28, 2002, 374 SCRA 696 People v. Rama, G.R. No. 136304, January 25, 2001, 350 SCRA 266 10. Reference to a Memorandum Rule 132, Sec. 16

People v. Plasencia, G.R. No. 90198, November 7, 1995, 249 SCRA 674 Canque v. CA, G.R. No. 96202, April 13, 1999, 305 SCRA 579 F. 1. Offer and objection Offer of evidence Rule 132, Sec. 34

Distinction: identification of a documentary evidence done in the course of the trial and is accompanied by the marking of the evidence as an exhibit formal offer as an exhibit done only when the party rests its case When formal offer of evidence not required: 1. In a summary proceeding because it is a proceeding where there is no full-blown trial; 2. Documents judicially admitted or taken judicial notice of; 3. Documents, affidavits and depositions used in rendering a summary judgment; 4. Documents or affidavits used in deciding quasi-judicial or administrative cases 5. Lost objects previously marked, identified, described in the record, and testified to by the witnesses who had been subjects of cross examination in respect to said objects. Requirements: 1. The evidence must have been duly notified by testimony duly recorded; and 2. The same must have been incorporated in the records of the case.

Candido v. Court of Appeals, G.R. No. 107493, February 1, 1996, 253 SCRA 78 A document, or any article for that matter, is not evidence when it is simply marked for identification; it must be formally offered, and the opposing counsel given an opportunity to object to it or cross-examine [8] the witness called upon to prove or identify it. A formal offer is necessary since judges are required to base their findings of fact and judgment only -and strictly - upon the evidence offered by the parties at the [9] trial. To allow a party to attach any document to his pleading and then expect the court to consider it as evidence may draw unwarranted consequences. The opposing party will be deprived of his chance to examine the document and object to its admissibility. The appellate court will have difficulty reviewing documents not previously scrutinized by the court below. The pertinent provisions of the Revised Rules of Court on the inclusion on appeal of documentary evidence or exhibits in the records cannot be stretched as to include such pleadings or documents not offered at the hearing of the case. Villaluz v. Ligon, G.R. No. 143721, August 31, 2005, 468 SCRA 486 Tabuena v. CA, G.R. No. 85423, May 6, 1991, 196 SCRA 650 2. When to make an offer Rule 132, Sec. 35

People v. Yap, G.R. No. 103517, February 9, 1994, 229 SCRA 787 3. Objection Rule 132, Sec. 36

General and Specific Objections When is an objection that the evidence is irrelevant not general? - When the evidence clearly is one which does not prove a fact in issue, with no probative value and whith no relationship to the fact in issue, or inadmissible for any purpose and no other objection is possible, there is no other ground for objection except to say that it is irrelevant. Specific objection always preferred over general objection.

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HE, no absolute ban on general objections; if the ground for exclusion should have been obvious to the judge or counsel. 2 Kinds of Objections: 1. Formal Objections 2. Substantive Objections Formal objections directed against the alleged defect in the formulation of the question (ambiguous, mis/leading, repetitious, multiple, argumentative questions) Substantive Objections objections made and directed against the very nature of the evidence (irrelevant, incompetent ie. Not the best evid, hearsay privileged communication not authenticated, opinion, res inter alios acta) Objections must be timely made at the earliest opportunity, depending upon the manner the evidence is offered Evidence offered orally immediately after the offer is made As soon as the grounds become reasonably apparent In writing within 3 days after notice unless court allows different period The offer of evidence is the frame of reference for a timely objection 4. Repetition of an objection Rule 132, Sec. 37 Ruling Rule 132, Sec. 38 People v. Godoy, G.R. No. 115908-09, December 6, 1995, 250 SCRA 676 6. Striking out of an answer Rule 132, Sec. 39

5.

When to use a motion to strike 1. When the answer is premature 2. When the answer of the witness is irrelevant, incompetent or otherwise improper 3. When the answer is unresponsive 4. When the witness becomes unavailable for cross-examination through no fault of the crossexamining party, or 5. When the testimony was allowed conditionally and the condition for its admissibility was not fulfilled Extent of Waiver for Failure to Object: 1. Reliance 2. Competence of evidence Why? Because these are the components of admissibility and s3r128. 7. Tender of excluded evidence Rule 132, Sec. 40 To know the nature of the testimony or the documentary evidence and convince the trial judge to permit the evidence or testimony. Even if trial judge not convinced to reverse his earlier ruling, the tender is made to create and preserve a record for appeal. Offer must be specific enough to contain the facts and circumstances of the matter sought to be proved by the excluded evidence. Must not be a mere manifestation in mere general terms Must not be in the form of conclusions of facts Must maker reference to the details of the excluded testimony/document

Difference: Formal offer of evidence refers either to the testimony of a witness prior to the latters testimony, or the offer of the documentary and object evidence after a party has presented his testimonial evidence.

Offer of proof is the process by which an excluded evidence tenders the same. If what has been excluded is testimonial evidence, the tender is made by stating for the record the name and other personal circumstances of the proposed witness and the substance of his proposed testimony. If the

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evidence excluded is documentary orof things, the offer of proof is made by having the same attached to or made part of the record. Catacutan v. People, G.R. No. 173991, August 31, 2011, 656 SCRA 524

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