Evidence

I. PRELIMINARY CONSIDERATION:

A. Importance of the study of Evidence in Law Enforcement:

As an element of our Criminal Justice System, it is the duty of every law enforcement agencies to
provide the prosecution with the materials and information (Evidence) necessary in order to support
conviction.

Every person is entitled to be presumed innocent of a crime or wrong, unless proven otherwise. This
is a prima facie presumption which must be overcome by proof beyond reasonable doubt.

B. Connecting the chain of events through Evidence during Trial:

Trial refers to “the examination before a competent tribunal, according to the laws of the land, of
the facts in issue in a cause, for the purposes of determining such issue” (U.S. v. Raymundo, 14 Phil
416).

Evidence helps in the determination of Questions of Facts by helping the judge reconstruct the chain
of events from the conception up to the consummation of a criminal design.

C. Factum Probandum and Factum Probans

Factum Probandum – The ultimate facts to be proven. These are the propositions of law.

Examples:

• murder was committed thru treachery

• robbery was made through force upon things

Factum Probans – The evidentiary Facts. These addresses questions of fact.

Examples:

• exit wounds were in front indicating that victim was shot at the back

• destroyed locks indicative of force upon things

Thus, the outcome of every trial is determined by:

• Propositions of law, and

• Questions of fact.

D. Proof and Evidence

Evidence – the means to arrive at a conclusion. Under the Revised Rules of Court, evidence is
defined as “the means, sanctioned by the rules, for ascertainment in a judicial proceeding, the truth,
respecting a matter of fact”.

Proof – the result of introducing evidence. The establishment of a requisite degree of belief in the
mind of the judge as to the facts in issue. It refers to the accumulation of evidence sufficient to
persuade the trial court.

Quantum of evidence – the totality of evidence presented for consideration

Quantum of proof – refers to the degree of proof required in order to arrive at a conclusion.

Burden of evidence – the duty of a party of going forward with evidence.

Burden of proof – the duty of the affirmative to prove that which it alleges.
Variations on degrees of proof based on type of action:

1. Criminal Action – proof beyond reasonable doubt [that degree of proof which produces
conviction in an unprejudiced mind]

2. Civil Action – preponderance of evidence [evidence of greater weight or more convincing than
that which is offered to refute it]

3. Administrative Action – sufficiency of evidence [that amount of relevant evidence which a

reasonable mind might accept as adequate to justify a conclusion]

E. Exclusionary Rule. (Fruit of the poisonous tree doctrine)

Evidence ILLEGALLY OBTAINED are inadmissible for reasons of public policy. This is so because of the
constitutional requirement of due process. Due process has been defined as “the law that hears
before it condemns, which proceeds upon inquiry, and renders judgment only after fair trial”.

As a result, jurisprudence has evolved a rule that renders inadmissible any evidence obtained in an
illegal search from being introduced in trial.

F. Principle of Chain of Custody of Evidence

If the evidence is of a type which cannot be easily recognized or can readily be confused or
tampered with, the proponent of the object must present evidence of its chain of custody. The
proponent need not negate all possibilities of substitution or tampering in the chain of custody, but
must show that:

The evidence is identified as the same object which was taken from the scene;

It was not tampered with, or that any alteration can be sufficiently explained (i.e. discoloration due
to the application of ninhydrine solution, etc.); and

The persons who have handled the evidence are known and may be examined in court with regard
to the object.

II. GENERAL PROVISIONS:

A. Concepts of evidence:

1. It is a means of ascertainment – used to arrive at a legal conclusion

2. It is sanctioned by the rules of court – meaning, not excluded by the rules on relevancy and
admissibility

3. It is used in a judicial proceeding – there is a jural conflict involving different rights asserted by
different parties

4. It pertains to the truth respecting a matter of fact – evidence represents a “claim” either for the
prosecution or for the defense where issues (clashes of view) are present.

Admissibility of Evidence:

For evidence to be admissible, it must be:

1) relevant to the issue [relevancy test], and

2) not excluded by the law or rules of court [competency test].

Note: To determine the relevancy of any item of proof, the purpose for which it is sought to be
introduced must first be known (There must be a formal offer).

Test of relevancy of evidence:

Whether or not the factual information tendered for evaluation of the trial court would be helpful in
the determination of the factual issue that is disputed.

When is evidence relevant?

When it has a relation to the fact in issue as to induce belief in it’s:

1) existence, or

2) non-existence
In other words, evidence is relevant when it is:

1) material, and

2) has probative value

What is meant by “probative value”?

It is the tendency of the evidence to establish the proposition that it is offered to prove.

“Collateral Matters” not admissible except when it tend in any reasonable degree to establish
probability or improbability of the fact in issue.

Collateral matters – matters other than the fact in issue and which are offered as a basis for
inference as to the existence or non-existence of the facts in issue.

Collateral matters are classified into:

1. Antecedent circumstances – facts existing before the commission of the crime [i.e. hatred, bad
moral character of the offender, previous plan, conspiracy, etc.]

2. Concomitant circumstances – facts existing during the commission of the crime [i.e. opportunity,
presence of the accused at the scene of the crime, etc.]

3. Subsequent circumstances – facts existing after the commission of the crime [i.e. flight,
extrajudicial admission to third party, attempt to conceal effects of the crime, possession of stolen
property, etc.]

Query: Is modus operandi an antecedent, concomitant or subsequent circumstance?

B. Judicial Notice, basis of:

Judicial notice is based on necessity and expediency. This is so because what is known need not be
proved.

Different kinds of judicial notices:

1. mandatory

2. discretionary

3. hearing required

C. Confession and Admission, distinguished:

Confession – an acknowledgement of guilt.

Admission – an acknowledgment of facts.

Different kinds of confession/admission:

1. Judicial

2. Extrajudicial

3. Oral

4. Written

5. Voluntary

6. Forced

Different kinds of evidence:

1. Relevant evidence – evidence having any value in reason as tending

to prove any matter provable in an action.

2. Material evidence – evidence is material when it is directed to prove a

fact in issue as determined by the rules of substantive law and

pleadings.

3. Competent evidence – not excluded by law.

4. Direct evidence – proves the fact in issue without aid of inference

or presumptions.

5. Circumstantial evidence - the proof of fact or facts from which, taken either singly or
collectively, the existence of a particular fact in dispute

may be inferred as necessary or probable consequence.

6. Positive evidence – evidence which affirms a fact in issue.

7. Negative evidence - evidence which denies the existence of a fact

in issue.

8. Rebutting evidence – given to repel, counter act or disprove facts

given in evidence by the other party.

9. Primary/Best evidence – that which the law regards as affording

the greatest certainty.

10. Secondary evidence – that which indicates the existence of a

more original source of information.

11. Expert evidence – the testimony of one possessing knowledge

not usually acquired by other persons.

12. Prima facie evidence – evidence which can stand alone to support

a conviction unless rebutted.

13. Conclusive evidence – incontrovertible evidence

14. Cumulative evidence – additional evidence of the same kind bearing

on the same point.

15. Corroborative evidence – additional evidence of a different kind

and character tending to prove the same point as that of previously

offered evidence.

16. Character evidence – evidence of a person’s moral standing or

personality traits in a community based on reputation or opinion.

17. Demeanor evidence – the behavior of a witness on the witness stand

during trial to be considered by the judge on the issue of credibility.

18. Demonstrative evidence – evidence that has tangible and

exemplifying purpose.

19. Hearsay evidence – oral testimony or documentary evidence which

does not derive its value solely from the credit to be attached to the

witness himself.

20.Testimonial evidence – oral averments given in open court by

the witness.

21. Object/Auotoptic proferrence/Real evidence – those addressed to

the senses of the court (sight, hearing, smell, touch, taste).

22. Documentary evidence – those consisting of writing or any material

of written expression offered as proof of its contents.

containing letters, words, numbers, figures, symbols or other modes

Best Evidence Rule:

When the subject of the inquiry is the contents of a document, no evidence shall be admissible other
than the original of the document.

For exceptions, see Sec. 3, Rule 130, Revised Rules of Court.

A document is legally considered “Original” when:

1. It is the subject of an inquiry

2. When in two or more copies executed at or about the same time, with identical contents.

3. When an entry is repeated in ordinary course of business, one being copied from another at or
near the time of the transaction.

Question: May a “fake” document be considered as “original” or “authentic”?

Yes. A forged or spurious document when presented in court for examination is considered as the
original fake/forged document. Thus, a mere photocopy of the allegedly forged or spurious
document is only secondary to the original questioned document.

Secondary Evidence

When the original document has been:

1. lost,

2. destroyed, or

3. cannot be produced in court.

The offeror without bad faith must:

1. prove its execution or existence, and

2. prove the cause of its unavailability.

Secondary evidence may consist of:

1. a copy,

2. recital of its contents in some authentic document, or

3. by testimony of witnesses.

When original document is in the custody of:

1. adverse party – adverse party must have reasonable notice to produce it. After such notice and
satisfactory proof of its existence, he fails to produce it, secondary evidence may be presented.

2. public officer – contents may be proved by certified copy issued by the public officer in custody
thereof.

III. TESTIMONIAL EVIDENCE:

Qualifications of witnesses:
1. can perceive

2. can make known their perception to others

3. not disqualified by reason of mental incapacity, immaturity, marriage, privileged

communications, or “dead man’s statute”.

“Res Inter Alios Acta” Rule

General Rule: The rights of a party cannot be prejudiced by an act, declaration, or omission of
another.

Exception:

1. admission by a co-partner or agent

2. admission by a conspirator

3. admission by privies

4. admission by silence

In the above cases, the admission of one person is admissible as evidence against another.

Testimonial Knowledge:

General Rule: A witness can testify only to those facts which he knows of his personal knowledge;
that is, which are derived from his own perception. Any statement which derives its strength from
another’s personal knowledge is hearsay, and is therefore inadmissible.

Exceptions:

1. Dying declarations (ante-mortem statements)

2. Declaration against interest

3. Act or declaration about pedigree

4. Family reputation or tradition regarding pedigree

5. Common reputation

6. Part of the res gestae

7. Entries in the course of business

8. Entries in official records

9. Commercial lists and the like

10. Learned treatises

11. Testimony or deposition at a former proceeding

12. Examination of child victim/witness in cases of child abuse

IV. BURDEN OF PROOF AND PRESUMPTIONS:

Burden of proof – the duty of a party to present evidence on the facts in issue necessary to establish
his claim or defense by the amount of evidence required by law.

Presumption – an inference as to the existence of a fact not actually known, arising from its usual
connection with another which is known or a conjecture based on past experience as to what course
human affairs ordinarily take.

2 kinds of presumptions:

1. Conclusive presumptions [jure et de jure] – based on rules of substantive law which cannot be
overcome by evidence to the contrary.

2. Disputable presumptions [prima facie presumptions, rebuttable presumptions] – based on

procedural rules and may be overcome by evidence to the contrary.

Kinds of Conclusive Presumptions:

1. Estoppel by record or judgment – the preclusion to deny the truth of matters set forth in a
record, whether judicial or legislative, and also deny the facts adjudicated by a court of competent
jurisdiction (Salud v. CA, 233 SCRA 387).

2. Estoppel by deed – a bar which precludes a party to a deed and his privies from asserting as
against the other and his privies any right or title in derogation of the deed or denying the truth of
any material fact asserted in it (Iriola v. Felices, 30 SCRA 202).

3. Estoppel in pais – based upon express representation or statements or upon positive acts or
conduct. A party cannot, in the course of litigation or in dealings in pais, be permitted to repudiate
his representation or occupy inconsistent positions.
4. Estoppel against Tenant – the tenant is not permitted to deny the title of his landlord at the time
of the commencement of the relation of landlord and tenant between them.

Note: For Kinds of disputable presumptions, see Sec. 3, Rule 131 of the Revised Rules of Court.

Presentation of Evidence:

The examination of witnesses presented in a trial or hearing shall be done is open court, and under
oath or affirmation. Unless the witness is incapacitated to speak, or the question calls for a different
mode of answer, the answer of the witness shall be given orally.

Rights and Obligations of witnesses:

1. To be protected from irrelevant, improper, or insulting questions,

and from harsh or insulting demeanor.

2. Not to be detained longer than the interest of justice requires.

3. Not to be examined except only as to matters pertinent to the

issue.

4. Not to give an answer which will tend to subject him to a penalty

for an offense unless otherwise provided by law.

5. Not to give an answer which will tend to degrade his reputation,

unless it be to the very fact at issue or to the fact from which the fact in issue would be
presumed,but a witness must answer to the

facts of his previous final conviction for an offense.

Order of Examination of individual witnesses:

Direct examination by the proponent

Cross examination by the opponent

Re-direct examination by the proponent

Re-cross examination by the opponent

Direct examination – the examination in chief of a witness by the party presenting him on the facts
relevant to the issue.

Cross examination – the examination by the adverse party of the witness as to any matter stated in
the direct examination, or connected therewith, with sufficient fullness and freedom from interest
or bias, or the reverse, and to elicit all important facts bearing upon the issue.

Re-direct examination – second questioning by the proponent to explain or supplement answers

given in the cross examination.

Re-cross examination – second questioning by the adverse party on matters stated on the re-direct
and also on such matters as may be allowed by court.

Different Types of Questions:

Leading questions –It is one where the answer is already supplied by the examiner into the mouth of
the witness. [Ex. You saw Jose killed Juan because you were present when it happened, didn’t you?]

Misleading question – a question which cannot be answered without making an unintended

admission. [Ex. Do you still beat your wife?]

Compound question – a question which calls for a single answer to more than one question. [Ex.
Have you seen and heard him?]

Argumentative question – a type of leading question which reflects the examiners interpretation of
the facts. [Ex. Why were you driving carelessly?]

Speculative question – a question which assumes a disputed fact not stated by the witness as true.
[Ex. The victim cried in pain, didn’t he?]

Conclusionary question – a question which asks for an opinion which the witness is not qualified or
permitted to answer. [Ex. Asking a high school drop-out whether the gun used is a Cal. 45 pistol or
9mm pistol]

Cumulative question – a question which has already been asked and answered.

Harassing/Embarrassing question – [Ex. Are you a homosexual?]

Classes of Documents:

Documents are either public or private.

Public documents are:

 1. The written official acts, or records of the official acts of sovereign authority, official bodies and
tribunals, and public officers, whether of the Philippines, or a foreign country.

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

3. Public records (1) kept in the Philippines, or private documents (2) required by law to be
entered therein.

All other writings are private.