evidence handout final)

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ESSENTIAL CONCEPTS IN EVIDENCE

CONCEPT OF EVIDENCE

Evidence is the means, sanctioned by the Rules of Court, ofascertaining in a judicial proceeding the truth respecting a matter of fact.(Sec. 1, Rule 128, Rules of Court).

Applicability of the rules of evidence

The rules of evidence, being part of the Rules of Court, apply only to judicial proceedings (Sec. 1, Rule 128, Rules of Court). It is a well-settledprocedural principle that the Rules of Court shall not apply to election cases,land registration, cadastral, naturalization and insolvency proceedings, andother cases, except by analogy or in a suppletory character and whenever

practicable and convenient (Sec. 4, Rule 1, Rules of Court).

Application of the Rules on Electronic Evidence

It is significant to note that while the definition of evidence under theRules of Court applies only to judicial proceedings, the Rules on ElectronicEvidence apply to all civil actions and proceedings, as well as quasi-judicialand administrative cases (Sec. 2, Rule 1, Rules on Electronic Evidence).

Distinction between proof and evidence

1. Proof is not the evidence itself. There is proof only because ofevidence. It is merely the probative effect of evidence and is the convictionor persuasion of the mind resulting from a consideration of the evidence (29Am Jur 2d, Evidence 2).

2. Evidence is the medium or means by which a fact is proved ordisproved. Proof is the effect of evidence because without evidence there isno proof(Blacks Law Dictionary, 5th Ed., 1094). It must be remembered thatbare allegations unsubstantiated by evidence, are not equivalent to proof(Domingo vs. Robles, 453 SCRA 812, March 18, 2005).

Requisites for the admissibility of evidence

1. Under Sec. 3 of Rule 128, Evidence is admissible when it is relevant tothe issue and is not excluded by the law or these rules. Thus, for evidenceto be admissible, two elements must concur, namely:

(a) the evidence is relevant, and

(b) the evidence is not excludedby the rules (competent).

These two elements correspond to Wigmores two axioms of

admissibility, namely: (a) That none but facts having rational probative valueare admissible; and (b) That all facts having rational probative value areadmissible unless some specific rule forbids. (I Wigmore, 9-10, 289-295).The first axiom is, in substance, the axiom ofrelevance while the second isthe axiom ofcompetence.

When collateral matters are allowed

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As a rule, evidence on collateral matters are not allowed (Sec. 4, Rule128,Rules of Court). This rule is, however, not an absolute rule. Sometimes acollateral matter may be admitted in evidence. Under the Rules of Court, acollateral matter may be admitted if it tends in any reasonable degree to

establish the probability or improbability of the fact in issue. (Sec. 4, Rule128, Rules of Court). In other words, while the evidence may not beardirectly on the issue, it will be admitted if it has the tendency to corroborateor supplement facts established previously by direct evidence, or to inducebelief as to the probability of improbability of a fact in issue.

To illustrate: Although evidence of character is generally inadmissible,evidence of the good moral character of the accused is admissible when saidcharacter is pertinent to the moral trait involved in the offense charged (Sec.51(a)(1), Rule 130, Rules of Court). In civil cases, evidence of the moralcharacter of a party is admissible only when pertinent to the issue of

character involved in the case (Sec. 51(b), Rule 130, Rules of Court). Also,evidence of the good character of a witness is admissible if his character hasbeen previously impeached but not before impeachment (Sec. 14, Rule 132,Rules of Court).

Inadmissibility of character evidence

1. Character refers to what a man is and depends on the attributes hepossesses. It is not the same as a mans reputation because the latter iswhat he is supposed to be in accordance with what people say he is anddepends on how people perceive him to be (Blacks, 5th Ed., 211).

2. Character evidence is not generally admissible (Sec. 51, Rule 130,Rules of Court). Character is generally irrelevant in determining acontroversy because the evidence of a persons character or trait is notadmissible to prove that a person acted in conformity with such character ortrait in a particular occasion (29 Am Jur 2d Evidence 363).

Proof of bad moral character of the accused

1. In a criminal case, the prosecution cannot prove the bad moralcharacter of the accused in its evidence-in-chief. It can only do so in rebuttal

(Sec. 51, (a)(2), Rule 130, Rules of Court). This means that the prosecutionmay not offer evidence of the character of the accused unless the accusedhimself has offered evidence of his good character. The prosecutiontherefore, must wait until the accused puts his character in issue during theproceedings. Where the accused proves his good moral character pertinentto the moral trait involved in the offense charged (Sec. 51 (a)(1), Rule 130,Rules of Court), he opens the door to the prosecution to prove that hischaracter is, in fact, bad. Then and only then may the prosecution prove thebad moral character of the accused.

2. In confining the right of the prosecution to prove the bad character of

the accused only by way of rebuttal prevents a pronouncement of guilt notbecause there exists sufficient evidence of his guilt, but because he is abad man. The rule therefore, allows a conviction only upon evidenceaffirmatively showing his commission of the offense charged.

When character evidence is admissible

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Character evidence is admissible in the following cases:

(a) The good or bad moral character of the offended party may beproved by the accused if it tends to establish in any reasonabledegree the probability or improbability of the offense charged

(Sec. 51(a), Rule 130, Rules of Court).

(b) The accused may prove his good moral character when pertinentto the moral trait involved in the offense charged (Sec. 51(a)(1),Rule 130, Rules of Court). In doing so, an accused may advancemore than one character trait as evidence so long as each trait isgermane to some issue in the case (United States vs. Curtis CA3Pa) 644 F2d 263). He may not however, prove his character byevidence of specific instances of good conduct (29 Am Jur 2dEvidence Evidence 367; Government of Virgin Islands vs. Grant(CA3 VI) 775 F2d 508, 19 Fed Rules Evid Serv 620). Hence, he

cannot prove that on one occasion he fed an old woman dying ofstarvation, and on another, he came to the aid of a damsel indistress. However, when the specific acts are the very issues inthe case, an inquiry into such acts is permissible.

(c ) In civil cases, evidence of the moral character of a party in a civilcase is admissible only when pertinent to the issue of characterinvolved in the case (Sec. 51(b), Rule 130, Rules of Court). Thus,evidence of a partys intemperance may be admitted when hisintemperance is pertinent to the issues involved.

4. Evidence of the good moral character of a witness is not admissibleuntil such character has been impeached (Sec. 14, Rule 132, Rules of Court).It is error for counsel to offer evidence of the good moral character of hiswitness who is presented in court for the first time since he could not havebeen previously impeached.

Admissibility of opinion evidence

As a rule, the opinion of a witness is inadmissible (Sec. 48, Rule 130,Rules of Court).

When opinion evidence is admissible

1. When the opinion is that of an expert, i.e., the opinion of a witnessrequiring special knowledge, skill, experience or training which he is shownto posses, may be received in evidence (Sec. 49, Rule 130, Rules of Court).

2. When the opinion is that of an ordinary witness provided that theproper basis of the opinion is given and the subject of the opinion is any ofthe following matters:

(a) the identity of a person about whom the witness has adequate

knowledge;(b) the handwriting of the person of which the witness has adequate

knowledge;(c ) the mental sanity of a person with whom he is sufficiently

acquainted; and

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(d) the impressions of the witness on the emotion, behavior,condition or appearance of a person (Sec. 50, Rule 130, Rules ofCourt).

Admissibility of previous conduct or similar acts as evidence

1. Assume that Mr. X is accused of physical injuries. Is evidence that hecommitted similar acts in the past admissible to prove his propensity forcommitting such acts? Answer: The evidence is not admissible for thepurpose for which it is offered. Sec. 34 of Rule 130 clearly provides:Evidence that one did or did not do a certain thing at one time, is notadmissible to prove that he did not do the same or a similar thing at anothertime (Sec. 34, Rule 130, Rules of Court).

2. In the same vein, evidence that Jose was cleared of a previous chargeof robbery is not admissible to prove that he could not have committed the

robbery for which he is presently charged. The rule enunciated in Sec. 34 ofRule 130 is founded on common reason. To argue that a person did or didnot commit an act because he did not or did a similar thing in the past is nonsequitur(it does not follow).

When evidence of similar acts or previous conduct is admissible

1. Evidence of similar acts is admissible for any of the following purposes:To prove( a) specific intent (b) knowledge (c ) identity (d) plan (e) system (f)habit (h) custom (i) usage, and the like.

2. For example, evidence of the other crimes, acts or wrongs of theaccused is admissible to show that the offense for which he is currentlycharged and the said previous similar acts show the signature orhandiwork of the accused, because of identical or similar modus operandi.In other words, the similar acts may be offered to show that they sharedistinctive features as the offense for which the accused is charged.

Admissible evidence distinguished from credible evidence

1. Admissible evidence is not necessarily credible evidence. In fact,admissibility and credibility must be sharply contrasted. They are entirely

two different matters and present different issues. The term admissiblemeans that the evidence is of such a character that the court, pursuant tothe rules of evidence, is bound to receive it or to allow it to be introduced atthe trial. Admissibility however, does not guarantee credibility. Admissibilityis one thing and credibility is another.

2. The term credibility refers to worthiness of belief, that quality whichrenders a witness worthy of belief (Blacks, 5th Ed., 330). The meaning ofcredibility in law is exactly what it means in ordinary usage: believability.After the competence of a witness is allowed, the consideration of hiscredibility follows.

Falsus in uno, falsus in omnibus

1. Literally falsus in uno, falsus in omnibus means false in one thing,false in everything (Dawson v. Bertolinin, 70 R.I. 325, 38 A.2d 765, 768).The doctrine means that if the testimony of a witness on a material issue iswillfully false and given with an intention to deceive, the jury may disregard

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all the witness testimony (Hargrave v. Stockloss, 127 N.J.L. 262, 21 A.2d820, 823). It is particularly applied to the testimony of a witness who may beconsidered unworthy of belief as to all the rest of his evidence if he is shownto have sworn falsely in one detail.

2. The principle of falsus in uno, falsus in omnibus is not strictly applied inthis jurisdiction. It deals only with the weight of the evidence and is not apositive rule of law. The rule is not an inflexible one of universal application.Modern trend in jurisprudence favors more flexibility when the testimony of awitness may be partly believed and partly disbelieved depending on thecorroborative evidence presented at the trial (People vs. Negrosa, G.R. Nos.142856-57, August 25, 2003).

Alibi as a defense

1. As a defense, alibi is inherently weak and crumbles in the light of

positive identification by truthful witnesses. It is evidence in nature and self-serving and cannot attain more credibility than the testimonies ofprosecution witnesses who testify on clear and positive evidence (People vs.Larraaga, G.R. Nos. 138874-75, July 21, 2005). It cannot prevail over thepositive identification of the accused as perpetrator of the crime. In the faceof positive identification of the accused by the prosecution witness, such alibicrumbles like a sand fortress (People vs. Vargas, G.R. No. 122765, October13, 2003; People vs. Adam, G.R. No. 143842, October 13, 2004; People vs.Enriquez, G.R. No. 158797, July 29, 2005).

2. While the defense of alibi is by nature a weak one, it assumes

significance and strength where the evidence for the prosecution is alsointrinsically weak (People vs. Canlas, 372 SCRA 401 [2001]).

3. Contrary to the common notion, alibi is not always a weak defense.Sometimes, the fact that the accused was somewhere else may just be theplain and unvarnished truth. But to be exonerating, the defense of alibi mustbe so airtight that it would admit of no exception. It must be demonstratedthat the person charged with the crime was not only somewhere else whenthe offense was committed, but was so far away that it would have beenphysically impossible to have been at the place of the crime or its immediatevicinity at the time of its commission. The reason is that no person can be in

two places at the same time (People vs. Baro, G.R. Nos. 146327-29, June 5,2002).

4. For the defense of alibi to prosper, the following must be established:(1) The presence of the accused in another place at the time of thecommission of the offense, and (2) The physical impossibility for him to be atthe scene of the crime at the time of its commission (People vs. Larraaga,G.R. Nos. 138874-75, July 21, 2005; People vs. Enriquez, G.R. No. 158797,July 29, 2005). Physical impossibility refers to the distance between the placewhere the accused was when the crime transpired and the place where itwas committed, as well as the facility of access between the two places

(People vs. Mosquera, 362 SCRA 441).

5. Like alibi, the defense of frame up is viewed with disfavor as it caneasily be concocted and is commonly used as a defense in most prosecutionsarising from the violations of the Dangerous Drugs Act. The legalpresumption that official duty has been regularly performed exists (People

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vs. Lee Hoi Ming, G.R. No. 145337, October 2, 2003; People vs. Barita, 325SCRA 22 [2000]).

Factum probans and factum probandum

1. Evidence signifies a relationship between two facts; namely:

(a) the fact or proposition to be established (factum probandum) ;and

(b) the facts or material evidencing the fact or proposition to beestablished (factum probans) (John J. Wigmore, Principles ofJudicial Proof, 5).

2. Stated in another way, the factum probandum is the fact to be proved;the fact which is in issue and to which the evidence is directed. On the otherhand, factum probans is the probative or evidentiary fact tending to prove

the fact in issue (Blacks, 5th

Ed., 533).Thus, if P claims to have been injuredby the negligence of D who denies having been negligent, the negligence isthe fact to be established. It is the factum probandum. The evidence offeredby P constitute the material to prove the negligence of P. The evidence is thefactum probans.

Multiple admissibility

There are times when a proffered evidence is admissible for two ormore purposes. Sometimes it is admissible for one purpose but inadmissiblefor another or vice versa. It may also be admissible against one party but not

against another. This kind of evidence is to be received provided it meets therelevancy and competency tests for which it is offered. This is commonlytermed, multiple admissibility. For instance, evidence that the generalreputation of the accused for truth, honesty, or integrity is bad isinadmissibility to prove that he committed the crime charged but it may beadmissible to impeach his credibility as a witness. The declaration of a dyingperson may be admissible for several purposes. It may be offered as a dyingdeclaration (Sec. 37, Rule 130, Rules of Court), as part of the res gestae(Sec. 42, Rule 130, Rules of Court) or as a declaration against interest (Sec.38, Rule 130, Rules of Court).

Conditional admissibility

It happens frequently enough that the relevancy of a piece of evidenceis not apparent at the time it is offered but the relevance of which will readilybe seen when connected to other pieces of evidence not yet offered. Theproponent of the evidence may ask that the evidence be conditionallyadmitted in the meantime subject to the condition that he is going toestablish its relevancy and competency at a later time. If the connection isnot shown as promised, the court may, upon motion of the adverse party,strike out from the record the evidence that was previously conditionallyadmitted.

Curative admissibility

The concept of curative admissibility refers to a situation whereincompetent evidence was erroneously received by the court despiteobjection from the other party. It will not apply where the evidence wasadmitted without objection because of a waiver of the inadmissibility of the

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evidence. Where the objection was incorrectly overruled, the court mustallow the other party to introduce evidence to contradict the evidenceimproperly admitted. This is for reasons of fairness. For example, in an actionfor damages arising from a car accident, the plaintiff introduced evidence toshow that on several occasions the defendant in the past had injured

pedestrians because of his negligence. Of course, under the rules ofevidence, this kind of evidence is inadmissible because evidence that aperson did a certain thing at one time is not admissible to prove that he didthe same or similar thing (Sec. 34, Rule 130, Rules of Evidence). Under theconcept of curative admissibility, the court must give the party againstwhom the evidence was admitted the chance to contradict or explain thealleged past acts he committed to counteract the prejudice which theimproperly admitted evidence may have caused.

Direct evidence

Direct evidence means evidence that directly proves a fact without theneed to make an inference from another fact. The testimony of theprosecution witness claiming that he saw that it was actually the deceasedwho attacked the accused without the latters provocation is a directevidence.

Circumstantial evidence

1. Circumstantial evidence is that evidence that directly proves a fact inissue through an inference which the fact finder draws from the evidenceestablished (People vs. Matito, G.R. No. 144405, February 2, 2004).

2. Circumstantial or indirect evidence is the exact opposite of directevidence. When the evidence is circumstantial, a fact is established bymaking an inference from a previously established fact. In other words, inthis type of evidence, the court uses a fact from which an assumption isdrawn. When the court does not have to make an inference from one fact toarrive at a conclusion, the evidence is direct. For instance, the testimony ofthe victim that he dreads the mere presence of the accused is directevidence that the statement was made. However, it is also circumstantialevidence to show that this fear prevented the victim from attacking theaccused without provocation.

3. In a criminal case, circumstantial evidence may be sufficient forconviction provided the following requisites concur:

(a) There is more than one circumstance;(b) The facts from which the inferences are derived are proven; and(c ) The combination of all the circumstances is such as to produce a

conviction beyond reasonable doubt. (Sec. 4, Rule133, Rules ofCourt; People vs. Sevilleno, G.R. No. 152954, March 11, 2004).

4. All the circumstances proved must be consistent with each other, and

they are to be taken together as proved. Being consistent with each other,and, taken together, they must point unerringly to the direction of guilt andmere suspicions, probabilities, or suppositions do not warrant a conviction(Underhill, Criminal Evidence, 4th Ed., 18).

Cumulative evidence

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Cumulative evidence refers to evidence of the same kind that tends toprove the same fact. When two or more witnesses testify that they saw theevent which the first witness claimed he saw, the subsequent testimoniesconstitute cumulative evidence.

Corroborative evidence

1. As commonly used, the term connotes evidence which tends toconfirm, validate, or strengthen evidence already presented. Thecorroborative evidence may be of the same kind as that already previouslypresented. For instance, the testimony of X that he saw Y hack the victimcorroborates that previous testimony of Z that indeed he also saw Y strikethe victim with a bladed weapon. Here, the previous testimony iscorroborated by evidence of the same kind, i.e., testimonial evidence fromeyewitness.

2. Corroborative evidence may also be of a different type from thatpreviously offered but which tends to prove the same fact. For instance, awitness claims that he saw Mr. X sign the document subject of the action. Mr.X denies the authenticity of his signature. Evidence by a handwriting expertthat the signature is indeed that of Mr. X is corroborative evidence. Here, wehave a testimonial evidence from an eyewitness, and a testimony from anexpert who did not personally witness the signing of the document.

Positive and negative evidence

1. These categories of evidence are normally associated with testimonial

evidence. Evidence is said to be positive when a witness affirms in the standthat a certain state of facts do exist or that a certain event happened. It isnegative when the witness states that an event did not occur or that thestate of facts alleged to exist do not actually exist. Thus, the testimony of Wthat he saw P fire a gun at the victim is a positive evidence. The testimony ofW that he could not have fired the gun because he was not armed during theincident, is a negative evidence.

2. A denial is a negative evidence. It is considered by jurisprudence to bea very weak form of defense and can never overcome an affirmative orpositive testimony particularly when it comes from the mouth of a credible

witness (People vs. Mendoza, 450 SCRA 328, January 21, 2005).

Liberal construction of the rules of evidence

1. Like all other provisions under the Rules of Court, the rules of evidencemust be liberally construed (Sec. 6, Rule 1, Rules of Court). Rules ofprocedure are mere tools intended to facilitate rather than to frustrate theattainment of justice. A strict and rigid application of the rules must alwaysbe eschewed if it would subvert their primary objective of enhancingsubstantial justice.

Procedural rules must be liberally interpreted and applied so as not tofrustrate substantial justice (Quiambao vs. Court of Appeals, 454 SCRA 17,March 28, 2005). However, to justify relaxation of the rules, a satisfactoryexplanation and a subsequent fulfillment of the requirements have alwaysbeen required (Barcenas vs. Tomas, 454 SCRA 593, March 31, 2005).

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2. The Rules of Electronic Evidence shall likewise be construed liberally(Sec. 2, Rule 2, Rules on Electronic Evidence).

Absence of a vested right in the rules of evidence

There is no vested right in the rules of evidence (Ayala de Roxas vs.Case, 8 Phil. 197). Because the rules of evidence are subject to change bythe Supreme Court pursuant to its powers to promulgate rules concerningpleading, practice and procedure (Sec. 5(5), Constitution of the Philippines). The change in the rules of evidence are however, subject to theconstitutional limitation on the enactment ofex post facto laws (Art. 3, Sec22, Bill of Rights, Constitution of the Philippines). An ex post facto lawincludes that which alters the rules of evidence and receives less or differenttestimony than that required at the time of the commission of the offense inorder to convict the accused (Mekin vs. Wolfe, 2 Phil. 74).

Waiver of the rules of evidence

1. The rules of evidence may be waived. When an otherwiseobjectionable evidence is not objected to, the evidence becomes admissiblebecause of waiver. Thus, a hearsay evidence if not objected to becomesadmissible. The benefits of the parol evidence rule and the best evidencerule and other rules may be waived in the same manner.

Admissibility however, should not be equated with the credibility or theprobative value of the evidence. Evidence is admissible because it is relevantand competent. Whether or not the court will give it weight is an entirely

different matter.

2. May the parties stipulate waiving the rules of evidence? The Civil Codeof the Philippines (Art. 6) provides that rights may be waived, unless thewaiver is contrary to law, public policy, morals, or good customs orprejudicial to a third person with a right recognized by law. As long as nolaw or principles of morality, good customs and public policy aretransgressed or no rights of third persons are violated, the rules of evidencemay be waived by the parties.

Burden of proof in civil cases

1. The burden of proof, or onus probandi, is traditionally the obligationof a party to the litigation to persuade the court that he is entitled to relief.

As defined in the Rules of Court, it is the duty of a party to presentevidence on the facts in issue necessary to establish his claim or defense bythe amount of evidence required by law (Sec. 1, Rule 131).

2. In civil cases, a party who alleges a fact has the burden of proving it(Gamboa Rodriguez, Rivera & Co. vs. Court of Appeals, G.R. No. 117456, May6, 2005; De la Cruz vs. Sison, 451 SCRA 754, February 17, 2005). It is a basic

rule that he who alleges must prove what is alleged (Nikko Hotel ManilaGarden vs. Reyes, 452 SCRA 532, February 28, 2005; Acabal vs. Acabal, 454SCRA 555, March 31, 2005; Go vs. Achas, 453 SCRA, March 11, 2005). It isthus, inaccurate to say, under the clear terms of Sec. 1 of Rule 131, that theburden of proof lies on the shoulders of the plaintiff. The burden of proof,under the clear terms of Sec. 1 of Rule 131, is the duty to present evidence

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not only to establish a claim but also a defense. Hence, it is the duty of theplaintiff who has a claim and the defendant who has a defense.

3. If a party alleges the existence of a fact, that party has the burden ofproof whether that party be the plaintiff or the defendant. If the plaintiff

alleges that the defendant owes him a sum of money, the plaintiff has theburden to prove the debt. If the defendant asserts that he has already paidthe debt then he has the burden to prove payment.

4. The burden of proof that a debt was contracted lies with the creditor-plaintiff. El incumbit probation qui dicit, non qui negat he who asserts, nothe who denies, must prove (Homeowners Savings & Loan Bank vs. Dailo,453 SCRA 283, March 11, 2005). If the defendant admits the debt butdefends by alleging that it has already been paid, waived or otherwiseextinguished, he has the burden to prove the extinguishment of the allegedobligation (Mayon Hotel & Restaurant vs. Adana, 458 SCRA 609 [2005]).

5. In an eminent domain case, the local government that seeks toexpropriate private property has the burden of proving to show the existenceof compliance with the elements for the valid exercise of the right of eminentdomain (Jesus is Lord Christian Foundation, Inc. vs. City of Pasig, G.R. No.152230, August 9, 2005).This is because the burden of proof is on the partymaking the allegations (Gamboa & Co.., 458 SCRA 68 [2005]).

Test for determining where burden of proof lies

The test for determining where the burden of proof lies is to ask which

party to an action or suit will fail if he offers no evidence competent to showthe facts averred as the basis for the relief he seeks to obtain. If thedefendant has affirmative defenses, he bears the burden of proof as to thosedefenses which he sets up in answer to the plaintiffs cause of action. Hence,if the defendant sets up the affirmative defense of prescription, he mustprove the date when prescription began to run (Aznar Brothers Realty Co. vs.Aying, G.R. No. 144773, May 16, 2005).

Where burden of proof is fixed

The burden of proof is fixed by the pleadings. The claim of the plaintiff

which he must prove, is spelled out in his complaint. The defendantsdefenses which he must likewise prove, are to be found in his answer to thecomplaint. The burdens of proof of both parties do not shift during the courseof the trial. The burden of proof to establish that the defendant owes theplaintiff remains with the plaintiff. The burden of proof to establish that theloan has been paid remains with the defendant throughout the litigation.

Burden of proof in criminal cases

In criminal cases, the burden of proof lies with the prosecution becauseof the presumption that the accused is innocent until the contrary is proven

(Art. III, Bill of Rights, Philippine Constitution).The obligation to convince thetrier of facts to show the guilt of the accused beyond reasonable doubt isupon the prosecution, as a rule, throughout the trial (Stafford v. UnitedStates, 300 Fed 537). However, when the accused invokes a lawful defenselike self-defense, the burden of proof rests upon the defense to prove thatthe killing was justified (People vs. Tan, 315 SCRA 75).

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Burden of evidence

The burden of evidence is the duty of a party to go forward with theevidence to overthrow the prima facie evidence against him (Bautista vs.Sarmiento, 138 SCRA 587). The burden of going forward with the evidence

may shift from one side to the other as the exigencies of the trial require(Chamberlayne, Sec. 203, 108, 169) and shifts with alternating frequency(People v. Bickerstaff, 46 Cal. App. 764, 190 Pac. 656; Chamberlayne,Modern Evidence, Vol. 2, 930-125 cited in Underhill, Criminal Evidence, 4th

Ed., 50).

Preponderance of evidence

1. The term, preponderance of evidence applies only to civil cases. Itmeans the greater or superior weight of evidence. It is the evidence that ismore convincing and more credible than the one offered by the adverse

party.

It means that the evidence as a whole adduced by one side is, as awhole superior to or has greater weight than that of the other (Habagat Grillvs. DMC-Urban Property Developer, Inc., 454 SCRA 653, March 31, 2005).

2. In civil cases, the party having the burden of proof must establish hiscase by a preponderance of evidence (Sec. 1, Rule 133, Rules of Court;Umpoc vs. Mercado, 449 SCRA 220, January 21, 2005). In determiningwhether or not there is preponderance of evidence, the court may considerthe following:

(a) All the facts and circumstances of the case;

(b) The witnesses manner of testifying, their intelligence, theirmeans and opportunity of knowing the facts to which they aretestifying, the nature of the facts to which they testify, theprobability or probability of their testimony;

(c ) The witnesses interest or want of interest, and also theirpersonal credibility so far as the same may ultimately appear inthe trial;

(d) The number of witnesses, although it does mean thatpreponderance is not with the greater number (Sec. 1, Rule 133,Rules of Court). To persuade by the preponderance of evidenceis not to take the evidence quantitatively but qualitatively(McDonald vs. Union Pacific, 109 Utah 493).

Equipoise or equiponderance doctrine

1. The doctrine refers to a situation where the evidence of the parties areevenly balanced or there is doubt on which side the evidence preponderates.

In this case the decision should be against the party with the burden ofproof. Hence, where the burden of proof is on the plaintiff and the evidencedoes not suggest that the scale of justice should weigh in his favor the courtshould render a verdict for the defendant (Rivera vs. Court of Appeals, 284SCRA 673; Marubeni Corp. vs. Lirag, G.R. No. 130998, August 10, 2001).

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2. In labor cases, if doubt exists between the evidence presented by theemployer and the employee, the scales of justice must be tilted in favor ofthe latter (Mayon Hotel & Restaurant vs. Adarna (G.R. No. 157637, May 16,2005).

3. The equipoise doctrine is based on the principle that no one shall bedeprived of life, liberty or property without due process of law (Sec. 1, Art. III,Constitution of the Philippines).

Proof beyond reasonable doubt

1. In a criminal case, conviction requires a proof beyond reasonabledoubt. Proof beyond reasonable doubt is that degree of proof which producesconviction in an unprejudiced mind. This kind of proof does not mean such adegree of proof that excludes all possibility of error. Only moral certainty isrequired (Sec. 2, Rule 133, Rules of Court; People vs. Sevillano, G.R. No.

152954, March 11, 2004).

Proof beyond reasonable doubt is required in order to overcome thecardinal rule that the accused must always be presumed innocent until thecontrary is proven. This presumption applies regardless of the enormity ofthe crime for which he is charged and remains until a verdict is finallyrendered.

2. Reasonable doubt does not refer to any doubt or a mere possible doubtbecause everything in human experience is subject to possible doubt.Reasonable doubt is that state of the case which, after a comparison of all

the evidence, does not lead the judge to have in his mind, a moral certaintyof the truth of the charge. Where there is reasonable doubt as to the guilt ofthe accused, there must be an acquittal (People vs. Calma, 295 SCRA 629;U.S. vs. Johnson, C.A N.Y., 343 F.2d 5,6). Thus, if the facts andcircumstances are susceptible of two interpretations, one of which isconsistent with the innocence of the accused, and the other interpretation isconsistent with guilt, then there is no compliance with the moral certaintyrequired and there is no basis for conviction.

Substantial evidence

1. Thus degree of proof applies to cases filed before administrative orquasi-judicial bodies and which requires that in order to establish a fact, theevidence should constitute that amount of relevant evidence which areasonable mind might accept as adequate to support a conclusion (Sec. 5,Rule 133, Rules of Court; Advincula vs. Dicen, G.R. No. 162403, May 16,2005; Benares vs. Pancho, 457 SCRA 652 [2005]).

2. Note: Surprisingly, the Supreme Court held in Duduaco vs.Laquindanum, August 11, 2005 that administrative cases against judges arehighly penal in nature and requires proof beyond reasonable doubt. Thesame doctrine was reiterated in an administrative case against a sheriff in

Amado vs. Suarin, August 19, 2005.

Evidentiary weight of electronic evidence

1. In assessing the evidentiary weight of electronic evidence, certainfactors may be considered, like:

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(a) The reliability of the manner in which it was generated, stored orcommunicated;

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

(c ) The integrity of the information and communication system;

(d) The familiarity of the witness or the person who made the entrywith the communication and information system; the nature andquality of the information; and

(e) Other factors which the court may consider (Sec. 1, Rule 7, Ruleson Electronic Evidence).

2. All matters relating to the admissibility and evidentiary weight of anelectronic document may be established by an affidavit stating facts of directpersonal knowledge of the affiant or based on authentic records. Theaffidavit must affirmatively show the competence of the affiant to testify onthe matters contained (Sec. 1, Rule 9, Rules on Electronic Evidence). The

affiant shall be made to affirm the contents of the affidavit in open court andmay be cross-examined as a matter of right by the adverse party (Sec. 2,Rule 9, Rules on Electronic Evidence).

Matters of Judicial Notice (Rule 129)

There are matters in a litigation which must be admitted without needfor evidence. All these matters which the court may take cognizance ofwithout evidence are called matters of judicial notice.

Function of Judicial Notice

The function of judicial notice is to abbreviate litigation by theadmission of matters that need no evidence because judicial notice is asubstitute for formal proof of a matter by evidence (People vs. Rowland, 4Cal 4th 238, 14 Cal Rptr 2d 377; 29 Am Jur 2d, Evidence 24, 1994). Judicialnotice takes the place of proof and is of equal force. It displaces evidenceand fulfills the purpose for which the evidence is designed to fulfill.

Mandatory judicial notice

1. The application of judicial notice may either be mandatory (Sec. 1,

Rule 129, Rules of Court) or discretionary (Sec. 2, Rule 129, Rules of Court).When the matter is subject to a mandatory judicial notice, no motion orhearing is necessary for the court to take judicial notice of a fact. This is amatter which a court must take judicial notice of. When the matter is subjectto discretionary judicial notice, a hearing is necessary before judicial notice istaken of a certain matter. This is a matter which the court or may not takejudicial notice of.

2. The following are matters subject to mandatory judicial notice.

(a) the existence and territorial existence of states;

(b) the political history, forms of government and symbols ofnationality of states;

(c ) the law of nations;(d) the admiralty and maritime courts of the world and their seals;(e) the political constitution and history of the Philippines;(f) the official acts of the legislative, executive and judicial

departments of the Philippines;

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(g) the laws of nature;(h) the measure of time; and(i) the geographical divisions.

When judicial notice is discretionary

1. Under the principle of discretionary judicial notice A court may takejudicial notice of matters which are of public knowledge, or are capable ofunquestionable demonstration, or ought to be known to judges because oftheir judicial functions (Sec. 2, Rule 129, Rules of Court).

2. The principles of discretionary judicial notice will only apply to caseswhere the following requisites are met:

(a) The matter must be one of common knowledge;

(b) The matter must be settled beyond reasonable doubt (if there isany uncertainty about the matter, then evidence must beadduced); and

(c ) The knowledge must exist within the jurisdiction of the court(Berget vs. State (Okia Crim) 824 P2d 364; 29 Am Jur 2d,Evidence 25 1994; State Prosecutors vs. Muro, 263 SCRA 505,521 [1994]).

3. Judicial notice under Sec. 2 of Rule 129 rests on the wisdom anddiscretion of the court. The power to take judicial notice must be exercised

with caution and care must be taken that the requisite notoriety exists. Anyreasonable doubt on the matter sought to be judicially noticed must beresolved against the taking of judicial notice (State Prosecutors vs. Muro,236 SCRA 505).

Judicial admissions

A judicial admission is another matter which no longer requires proof. Ajudicial admission is an admission, verbal or written, made by a party in thecourse of the proceedings in the same case (Sec. 4, Rule 129, Rules ofCourt).To be a judicial admission, the same must be made by a party to the

case. It must be emphasized that the admission must be made in the courseof the proceedings in the same case. Thus, an admission made in anotherjudicial proceeding will not be deemed a judicial admission under Sec. 4 ofRule 129. It will be considered an extrajudicial admission for purposes of theproceeding where such admission is offered. An extrajudicial admissionneeds to be formally offered in evidence unlike a judicial admission which isautomatically evidence. The form of the admission is immaterial. Sec. 4 ofRule 129 recognizes either a verbal or a written admission.

Nature of admissions in superseded pleadings

It has been held that the admissions in a superseded pleading are tobe considered as extrajudicial admissions which must be proven (Bastida vs.Menzi & Co., Inc., 58 Phil. 188; Torres vs. Court of Appeals, 131 SCRA 24). InChing vs. Court of Appeals, 331 SCRA 16, the Supreme Court held thatpleadings that have been amended disappear from the record, lose theirstatus as pleadings and cease to be judicial admissions, and to be utilized as

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extrajudicial admissions, they must, in order to have such effect, be formallyoffered in evidence.

Admissions in dismissed pleadings

Admissions made in pleadings that have been dismissed are merelyextrajudicial admissions (Servicewide Specialists, Inc. vs. Court of Appeals,G.R. No. 117728, June 26, 1996).

Hypothetical admissions in a motion to dismiss

A motion to dismiss hypothetically admits the truth of the allegationsof the complaint (Magno vs. Court of Appeals, No. L-28486, September 10,1981). It partakes of a demurrer which hypothetically admits the truth of thefactual allegations made in the complaint. However, the admission extendsonly to such matters of fact that have been sufficiently pleaded and not to

mere epithets charging fraud, allegations of legal conclusions or erroneousstatements of law, inferences from facts not stated, matters of evidences orirrelevant matters (De Dios vs. Bristol Laboratories, 55 SCRA 349, 354). Onlymaterial allegations, not conclusions in a complaint are deemed admitted(Dalandan vs. Julio, 10 SCRA 400, 410).

Admissions by counsel

Admissions by a counsel are generally conclusive upon a client (Garciavs. Court of Appeals, 37 SCRA 129). Even the negligence of counsel binds theclient (Sarraga vs. Banco Filipino Savings & Mortgage Bank, G.R. No. 143783,

December 9, 2002). This rule is not however, without exception. In caseswhere reckless or gross negligence of counsel derives the client of dueprocess of law, or when its application will result it outright deprivation of theclients liberty or property or when the interest of justice so require, relief isaccorded the client who suffered by reason of the lawyers gross or palpablemistake or negligence (Salazar vs. Salazar, G.R. No. 142920, February 6,2002).

Implied admissions in relation to modes of discovery

1. Under Sec. 1 of Rule 26 of the Rules of Court, a party, at any time after

the issues have been joined, may file and serve upon any other party awritten request for the admission by the latter of the genuineness of anymaterial and relevant document described in and exhibited with the request.The request for admission may also be of the truth of any material andrelevant matter of fact set forth in the request.

2. The party to whom the request was made must file and serve upon theparty requesting the admission a sworn statement either denying specificallythe matters of which an admission is requested or setting forth in detail thereasons why he cannot truthfully either admit or deny those matters. Thesworn statement must be filed and served within the period designated in

the request which shall not be less than fifteen (15) days after servicethereof, or within such further time as the court may allow on motion. If thesworn statement required is not filed and served, each of the matters ofwhich an admission is requested shall be deemed admitted (Sec. 2, Rule 26,Rules of Court.

Concept of presumptions

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1. A presumption is an assumption of fact resulting from a rule of lawwhich requires such fact to be assumed from another fact or group of factsfound or otherwise established in the action (Blacks, 5th Ed., 1067 citingUniform Rule 13; NJ Evidence Rule 13).

2. A presumption is not evidence (California Evidence Code cited inBlacks, 5th Ed., 1167).They merely affect the burden of offering evidence (1Wharltons Criminal Evidence, Sec. 64). It is not evidence in itself but it is anassumption resulting from the evidence.

In a sense, a presumption is an inference which is mandatory unlessrebutted (29 Am Jur 29 Evidence 181).

Example: D is the debtor of C, creditor for P1 Million payable in twelve(12) equal monthly installments. If evidence is introduced that the

installment payment for December has been received by the creditor, apresumption arises that previous installment have been paid. This is becauseunder the law, the receipt of a later installment of a debt, without reservationas to prior installments, shall give rise to the presumption that suchinstallments have been paid (Art. 1176, Civil Code of the Philippines).

Inference distinguished from a presumption

An inference is a factual conclusion that can rationally be drawn fromother facts (Computer Identics Corp. v. Southern Pacific Corporation Co. CA1Mass). It is however, one that is a result of a reasoning process. It need not

have a legal effect because it is not mandated by law.

A presumption is mandated by law and establishes a legal relationbetween or among the facts.

Kinds of presumptions

1. A presumption may either be(a) conclusive (presumptionsjuris et de jure); or(b) disputable/disputable (presumptionsjuris tantum)

A presumption is conclusive when the presumption becomesirrebuttable upon the presentation of the evidence tending to rebut thepresumption is not admissible. This presumption is in reality a rule ofsubstantive law (29 Am Jur 2d Evidence 183).

A presumption is disputable or rebuttable or if it may be contradictedor overcome by other evidence (Sec. 2(b), Rule 131, Rules of Court). Whenevidence that rebuts the presumption is introduced, the force of thepresumption disappears. Example: While evidence of receipt of payment of alater installment gives rise to the presumption that previous installmentshave been paid, yet when evidence is shown that prior installments remain

unpaid, the presumption falls.

2. The presumption that an accused is innocent of the crime charged untilthe contrary is proven is a presumption of law embodied in the Constitution(Sec. 14(2), Art. III, Bill of Rights, Constitution of the Philippines). Art. 1176 ofthe Civil Code of the Philippines also illustrates another presumptionmandated by the law. Under the said provision, when the receipt of the

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principal by the creditor is proven without reservation with respect to theinterest, there is a presumption that said interest has been paid.

Conclusive presumptions under the Rules of Court

1. The following are the conclusive presumptions under the Rules ofCourt:

(a) Whenever a party has, by his own declaration, or omission,intentionally or deliberately led another to believe a particular thing true,and to act upon such belief, he cannot, in any litigation arising out of suchdeclaration, act or omission, be permitted to falsify it.

(b) The tenant is not permitted to deny the title of his landlord at thetime of the commencement of the relation of landlord and tenant betweenthem (Sec. 2(a), Rule 131, Rules of Court).

2. The conclusive presumptions under the Rules of Court are based onthe doctrine of estoppel. Under this doctrine, the person making therepresentation cannot claim benefit from the wrong he himself committed(Phil. Price Assurance Corp. vs. Court of Appeals, 230 SCRA 164). Example:Persons who assume to be a corporation without legal authority to act assuch shall be considered a corporation by estoppel and shall be liable asgeneral partners (Sec. 21, Corporation Code of the Philippines).

3. For the enumeration of disputable presumptions, please refer to Sec. 3,Rule 130 of the Rules of Court.

Admission And Confessions (Rule 130)

1. An admission is an act, declaration or omission of a party as to arelevant fact (Sec. 26, Rule 130, Rules of Court). It is a voluntaryacknowledgment made by a party of the existence of the truth of certainfacts which are inconsistent with his claims in an action (Blacks LawDictionary, 5th Ed., 44).

2. A confession is the declaration of an accused acknowledging his guiltof the offense charged, or of any offense necessarily included therein (Sec.

33, Rule 130, Rules of Court; Tracys Handbook, 62 Ed., 242). It is astatement by the accused that he engaged in conduct which constitutes acrime (29A Am Jur 2d, Evidence 708).

3. An admission in a general sense includes confessions, the former beinga broader term because accordingly, a confession is also an admission . . .by the accused of the fact charged against him or of some fact essential tothe charge (4 Wigmore, Sec. 1050). A confession is a specific type ofadmission which refers only to an acknowledgment of guilt. As used, theterm admission refers to acknowledgment of facts which although may beincriminating falls short of an admission of guilt.

4. An admission may be implied like an admission by silence; aconfession cannot be implied. It should be a direct and positiveacknowledgment of guilt.

Admission distinguished from declarations against interest

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An admission is oftentimes confused with a declaration againstinterest. They are however distinct from each other. (a) To be admitted as adeclaration against interest, the declarant must be dead or unable to testify;an admission is admissible even if the person making the admission is aliveand is in court. (b) A declaration against interest is made before the

controversy arises; an admission is made at any time, even during the trial.(c) A declaration against interest is made against ones pecuniary or moralinterest; an admission is admissible as long as it is inconsistent with hispresent claim or defense and need not be against ones pecuniary or moralinterest. (d) A declaration against interest is admissible even against thirdpersons; and admissions are admissible only against the party making theadmission. (e) A declaration against interest is an exception to the hearsayrule; an admission is not and is admissible not as an exception to any rule.

Effects of admissions

1. An admission by a party may be given in evidence against him (Sec.26, Rule 132, Rules of Court). His admission is not admissible in his favor,because it would be self-serving evidence. Declarations of a party favorableto himself are not admissible as proof of the facts asserted (Cole v. Ralph,252 US 286, 64 L Ed 567, 40 SC Ct 312, USTC 312a, 3 AFTR 3051; State v.Warren, 242 Iowa 1176, 47 NW2d 221; Jones v. Dugan, 124 Md. 346, 350, 92A. 775).

2. An example considered as an admission by the Supreme Court are thefollowing alleged statements of former President Joseph Ejercito Estrada ascontained in the so-called Angara Diary: (a) his proposal for a snap election

in which he would not participate; (b) his statement that he would leave byMonday if the second envelope would be opened by Monday; and (c)statements like: Pagod na pagod na ako. Ayoko na, masyado nang masakit.Pagod na ako sa red tape, bureaucracy, intriga. I just want to clear my name,then I will go (Estrada vs. Desierto, 356 SCRA 108).These words were takenby the Court as an admission of his resignation.

Classification of admission and confessions

1. An admission may be express or implied. An express admission is apositive statement or act. An implied admission is one which may be inferred

from the declarations or acts of a person. A confession cannot be implied. Itmust be a positive acknowledgment of guilt and cannot be inferred. Sec. 33of Rule 130 refers to a confession as a declaration which connotes anaffirmative statement from the person making the confession.

2. An admission may be judicial or extrajudicial. An admission is judicialwhen made in the course of a judicial proceeding. An admission isextrajudicial when made out of court or even in a proceeding other than theone under consideration (Perry v. Simpson, Conn. 313). A confession may bealso judicial or extra judicial for the same reasons (29A Am Jur 2d 711).

3. An admission may also be adoptive. This admission occurs when aperson manifests his assent to the statements of another person. Theadmission may be received in evidence if it can be shown that a partyadopted the statements as his own (Fed. Evid. R. 801(d)(2)(B); Blacks, 5th

Ed., 44).

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The statements of President Estrada as written in the Angara Diarywere deemed by the Court as adoptive admissions. To rebut the argumentthat the diary is not the diary of the former president and thus, could not beadmissible against him, the Court declared: . . . The argument overlooks thedoctrine of adoptive admission. An adoptive admission is a partys reaction

to a statement or action by another person when it is reasonable to treat thepartys reaction as an admission of something stated or implied by the otherperson . . . (Estrada vs. Desierto, 356 SCRA 108).

Effect of extrajudicial confession on guilt

1. While a judicial confession may sustain a conviction, an extrajudicialconfession is not sufficient for conviction. The rule requires that theconfession be corroborated by evidence ofcorpus delicti (Sec. 3, Rule 133,Rules of Court).

2. Corpus delicti is the body of the crime or the offense (People v.Strook, 347 Ill. 460, 170 N.E. 821). Strictly speaking, it means the actualcommission of the crime and someone criminally responsible therefore(People v. Stoll, 84 Cal App. 99, 257 Pac. 583 cited by Underhill, CriminalEvidence, 34).

3. Corpus delicti, and all the elements thereof, may be proved bycircumstantial evidence but such proof must be convincing and compatiblewith the nature of the case (Underhill, Criminal Evidence 37).

4. While an extrajudicial confession will not be sufficient for conviction

unless corroborated by evidence ofcorpus delicti (Sec. 3, Rule 133, Rules ofCourt), a judicial confession will support conviction without proof of corpusdelicti independent of judicial confession (State v. Dena, 28 N. Mexico, 479,214, Pac. 583).

Admission by silence

1. Admission by silence has been traditionally received even in commonlaw as admissible evidence. The usual pattern for its admissibility involves astatement by a person in the presence of a party to the action, criminal orcivil. The statement contains assertions against the party, which, if untrue

would be sufficient cause for the party to deny. His failure to speak againstthe statement is admissible as an admission.

2, Suppose a policeman, upon approaching a group of bystanders, pointsto one of them and accuses him to be the killer of a man found dead thenight before. The man pointed at does not respond. He does not deny theaccusation. His failure to respond may be given in evidence against him. Theidea of the rule on admission by silence is that if an accusation is made, anda reasonable person would have denied the same if it were false, the failureto deny the accusation by the person accused is an implied admission of thetruth of the accusation.

3. Admission by silence as expressed in the Rules of Court provides: Anact or declaration made in the presence and within the hearing orobservation of a party who does or says nothing when the act or declarationis such as naturally to call for action or comment if not true, and when properand possible for him to do so, may be given in evidence against him (Sec.32, Rule 130, Rules of Court).

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4. The rule on admission by silence applies to both criminal and civilcases although must be received with caution because not every silence isan admission. For instance, the silence of a person under investigation forthe commission of an offense should not be construed as an admission by

silence because of constitutional reasons (Sec. 2(b), R.A. 7438).

5. Not every silence of a party is admissible. It is necessary that: (a) thathe heard and understood the statement; (b) that he was at liberty to make adenial; (c) that the statement was about a matter affecting his rights or inwhich he was interested and which naturally calls for a response; (d) that thefacts were within his knowledge, and; (e) that the fact admitted from hissilence is material to the issue (People vs. Paragsa, 84 SCRA 105). Thus, inone case, despite the many opportunities given to the respondent, herefused to comment and present his side. The gravity of the charges and theweight of the evidence against him would have prompted an innocent man

to come out and clear his name. However, he opted to maintain his silence.His silence can easily be interpreted as an admission of guilt (Ortiz vs. DeGuzman, A.M. No. P-03-1708, February 26, 2005; OCA vs. Bernardino, 450SCRA 88, January 31, 2005).

Res inter alios acta

1. The expression if fully expressed reads: res inter alios acta alterinocere non debetwhich literally means that things done to strangers oughtnot to injure those who are not parties to them (Blacks, 5th Ed., 1178).

2. The res inter alios acta rule has two branches, namely:

(a) The rule that the rights of a party cannot be prejudiced by anact, declaration, or omission or another (Sec. 28, Rule 130, Rulesof Court).

(b) The rule that evidence of previous conduct or similar acts at onetime is not admissible to prove that one did or did not do thesame act at another time (Sec. 34, Rule 132, Rules of Court).

3. The first branch is a very simple and logical rule which holds that

whatever one says or does or omits to do should only affect him but shouldnot affect or prejudice others. In other words, both common reason andfairness demand that a mans actions and declarations should affect himalone and should not affect others. Thus, if X makes a statement before themedia admitting his participation in a previous murder, his statement isadmissible against him under Sec. 26 of Rule 130. The rest of his statementpointing to Y and Z as co-participants in the murder are not admissibleagainst Y and Z under the first branch of the res inter alios acta rule in Sec.28 of Rule 130. Under this rule, the statement of X should not affect orprejudice Y and Z.

4. The rule has reference to extrajudicial declarations. Hence, statementsmade in open court by a witness implicating persons aside from his own judicial admissions, are admissible as declarations from one who haspersonal knowledge of the facts testified to.

Exceptions to the res inter alios acta rule

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1. The first branch of the rule admits of certain exception, to wit:

(a) admission by a co-partner or agent (Sec. 29, Rule 130);(b) admission by a co-conspirator (Sec. 30, Rule 130; and(c) admission by privies (Sec. 31, Rule 130).

2. The basis for admitting the above admissions is that the personmaking the statements is under the same circumstances as the personagainst whom it is offered. Such circumstances give him substantially thesame interest and the same motive to make a statement about certainmatters (4 Wigmore Sec. 1080a, 140).

Admissions by a co-partner or agent

1. An agent performs some service in representation or on behalf of hisprincipal (Art. 1868, Civil Code of the Philippines). The agent therefore, is in

legal contemplation, a mere extension of the personality of the principal andunless the agent acts in his own name, the principal must comply with all theobligations which the agent may have contracted within the scope of hisauthority (Art. 1883; Art. 1910, Civil Code of the Philippines). Hence,whatever is said by an agent to a third person, during the course of theagency and within the scope of his actual or apparent authority, relative tothe business contemplated by the agency, is for legal purposes also thestatement of the principal and is therefore, admissible against said principal(29A Am Jur 29 Evidence 815 citing Hitchman Coal & Coke Co. v. Mitchell,245 US 229, 62 L Ed 260, 38 S Ct 65).

2. The relationship among partners is on the same footing with therelationship of an agent to his principal. Both the contracts of agency andpartnership involve fiduciary relationships. Under the law (Art. 1818, CivilCode of the Philippines), every partner is an agent of the partnership for thepurpose of its business and the act of the partner in carrying out the usualcourse of business binds the partnership as a rule. Hence, under the sameprinciple governing an agency, the declarations of a partner may beadmissible against the other partners or the partnership.

3. Not every declaration or act made or done by a partner or agent isadmissible against the other partners or the principal. For the admission of a

co-partners or agent to be admissible, the following requisites must concur:

(a) The declaration or act of the partner and agent must have beenmade or done within the scope of their authority;

(b) The declaration or act of the partner and agent must have beenmade or done during the existence of the partnership or agency(while the person making the declaration was still a partner or anagent); and

(c) The existence of the partnership or agency is proven by evidenceother than the declaration or act of the partner and agent (Sec.29, Rule 130, Rules of Court).

4. Any declaration made before the partnership or agency existed orthose made after are not admissible against the other partners or theprincipal but remains admissible against the partner or agent making thedeclaration. It is also necessary for the application of the exception that theproof of the agency or partnership be from a source independent of thedeclaration made by the partner or agent.

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5. The above rules apply to the declarations or acts of a joint owner, jointdebtor, or other persons jointly interested with the party (Sec. 29, Rule 130,Rules of Court).

Admission by a co-conspirator

1. A conspiracy exists when two or more persons come to an agreementconcerning the commission of a felony and decide to commit it (Art. 8,Revised Penal Code). Once the conspiracy is proven, the act of one is the actof all. The statement therefore of one, may be admitted against the other co-conspirators as an exception to the rule ofres inter alios acta.

2. Assume that two months after a successful bank robbery, A wasarrested as a direct participant in the crime. During a television interview, headmitted his participation in the robbery. He also implicated B and C as his

other companions in the planning and execution of the robbery. Is hisstatement admissible? The statement is admissible as to him (Sec. 26, Rule130) but not as to B and C (Sec. 28, Rule 130). While A was a co-conspirator,his statement will be admissible against B and C only when the followingconcur:

(a) The declaration or act be made or done during the existence ofthe conspiracy;

(b) The declaration or act must relate to the conspiracy; and(c) The conspiracy must be shown by evidence other than the

declaration or act (Sec. 30, Rule 130, Rules of Court).

Note that the declaration of A was made long after the conspiracy wasover. Even assuming that the conspiracy can be proven by independentevidence and even if his statement was related to the conspiracy, thedeclaration is not admissible as an exception to the rule of res inter aliosacta.

Incriminating declarations of co-conspirators made in the absence of orwithout the knowledge of the others after the conspiracy has come to anend is inadmissible (US vs. Nerlinger (CA2 NY) 862 F2d 967, 27 Fed RulesEvidence Serv 271; 29A Am Jur Evidence 838). The arrest of the declarant

is often found to terminate the defendants participation in the conspiracy sothat the declarants post arrest statements do not qualify as admissible co-conspirator statements (29A Am Jur Evidence 840).

3. The rule requiring the concurrence of the above elements does notapply when the co-accused takes the witness stand and repeats hisextrajudicial confession as a witness. The declarations referred to here areextrajudicial statements or declarations.

An extrajudicial confession made by an accused is admissible againsthim but not admissible against his co-accused who took no part in the

confession (Sparf v. US, 156 US 51). An extrajudicial confession is bindingonly upon the confessant and is not admissible against his co-accused(People vs. Raquel, 265 SCRA 248) but those made by witnesses in opencourt are admissible as testimonies of a person based on his personalperceptions and knowledge (Sec. 36, Rule 130, Rules of Court).

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1. An offer of compromise by the accused may be received in evidence asan implied admission of guilt (Sec. 27, Rule 130, Rules of Court). Example:Although the marriage of the accused in a rape case extinguishes the penalaction (Alonto vs. Savellano, Jr., 287 SCRA 245), an offer of marriage is,generally speaking, an admission of guilt (People vs. Bulos, G.R. No. 123542,

June 26, 2001).

2. There is no implied admission of guilt if the offer of compromise is inrelation to (a) quasi-offenses (criminal negligence); or (b) in thosecases allowed by law to be compromised (Sec. 27, Rule 130, Rulesof Court).

3.Plea of guilty later withdrawn

A plea of guilty later withdrawn, is not admissible in evidence againstthe accused who made the plea (Sec. 27, Rule 130, Rules of Court).

An unaccepted plea of guilty to a lesser offense

An unaccepted plea of guilty to a lesser offense, is not admissible inevidence against the accused who made the plea or offer (Sec. 27, Rule 130,Rules of Court).

An offer to pay or the payment of medical, hospital or otherexpenses

An offer to pay or the payment of medical, hospital or other expenses

occasioned by an injury is not admissible in evidence as proof of civil orcriminal liability for the injured party (Sec. 27, Rule 130, Rules of Court).

Object Evidence (Sec. 1, Rule 130).

1. Object evidence, also called real evidence is one of the majorcategories of evidence in the Rules of Court aside from documentary andtestimonial evidences.

2. Objects as evidence refer to those which are addressed to the sensesof the court. When relevant, it may be exhibited to, or examined or viewed

by the court (Sec. 1, Rule 130).

3. An object may be considered a documentary evidence and a documentmay sometimes be an object evidence.

A documentary evidence need not necessarily be a writing. Under Sec.2 of Rule 130, documents as evidence may consist of writings or anymaterial (not only writings), containing letters, words, figures, symbols orother modes of written expression provided they are offered to prove theircontents(Sec. 2, Rule 130). If an object therefore, has modes of writtenexpressions and the object is offered to prove the contents of such written

expressions, the object is offered as a documentary evidence even if bynature it is an object. On the other hand, if a writing is offered not to proveits contents but matters like its existence or its execution or any othermatter other than its contents, the writing is not a documentary but anobject evidence. Thus, if a pen which is an object is offered to prove what iswritten on its stem, the pen is offered as a documentary evidence. If a

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writing like a deed of sale is offered to prove that a deed exists, the deed ofsale, even if a document, is offered as an object evidence.

4. It is important to know whether an evidence is documentary or objectevidence. Where a document is offered as an object evidence, evidentiary

rules like the best evidence rule and the parol evidence rule will not comeinto operation. The hearsay rule will not likewise apply to an objectevidence.

The Best Evidence Rule (Sec. 3, Rule 130).

1. The best evidence rule does not apply to an object evidence. Itapplies only to documentary evidence. When an issue arises whether or notthe best evidence rule applies, the examinee must ask himself twoquestions: (a) Is there a document involved? (b) Is the subject of inquiry thecontents of the document? If both are answered in the affirmative then the

best evidence rule applies. Hence, if there is a document involved in the casebut the subject of inquiry is the existence or the due execution of thedocument or the paper on which the document is written, the rule does notapply.

2. When the best evidence rule comes into operation, it is presumed thatthe subject of inquiry is the contents of the document. If this is so, then theparty offering the document must present the original thereof and not itscopy or other secondary evidence.

3. The presentation of the original is not an absolute rule. Secondary

evidence may be admissible provided the offeror satisfies the requirementsfor laying the basis for the presentation of secondary evidence. Laying thebasis involves explaining to the satisfaction of the court the reason for theinability to offer the original of the document. For instance, where theoriginal is lost or destroyed or cannot be produced in court, laying the basisfor the offering of secondary evidence involves showing the following:

(a) That an original exists; (b) That the original was duly executed(c) That the cause of its unavailability like loss, destruction, etc. is explained;(c) That its unavailability was without bad faith on the part of the offeror(Sec. 5, Rule 130 in relation to Sec. 3(a)).

If the original cannot be produced because the original is in thecustody of the adverse party, laying the basis for the offering of secondaryevidence consists in showing the following:

(a) That an original exists; (b) That the original has been dulyexecuted; (c) That the adverse party has been given reasonable notice toproduce the original; (c) That the adverse party fails to produce the originaldespite such reasonable notice (Sec. 6, Rule 130).

4. If the offeror has successfully laid the basis for the presentation of the

secondary evidence, then the original need not be presented. However, onemust observe the order in which secondary evidence is to be offered. This isbecause not every secondary evidence can be offered. The following ordermust therefore, be observed: (a) a copy of the original; (b) if there is nocopy, then a recital of its contents in some authentic document; (c) in defaultof the above, by testimony of witnesses (Sec. 5, Rule 130).

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pleadings, parol evidence will be inadmissible. Thus, if PP sues DD forcollection of a loan of P100,000, DD as a rule, cannot present evidence thatthe actual loan is P50,000 because the latter evidence is an evidence whichmodifies the contract. It is inadmissible parol evidence. If DD wants theevidence to be admitted, he must put in issue in his answer to the complaint

the fact that the note does not contain the true agreement of the parties andthat the actual obligation is only P50,000. He does this by specificallydenying the allegations of the complaint and since the note is an actionabledocument, he has to deny the genuineness and due execution of thedocument under oath. By doing so, he has put the matter of the amount ofthe debt and the character of the note in issue.

4. The parol evidence rule applies only to writings that are in themselves,agreements. In short, they apply only to contractual writings. Note however,that for the purpose of the parol evidence rule, a will is considered anagreement (Sec. 9, Rule 130). On the other hand, the best evidence rule

applies to all writings, contractual or not. Note also that in the best evidencerule, the issue is whether the writing is an original or a mere secondaryevidence. In the parol evidence, the issue is whether or not a matter is thetrue agreement of the parties.

Witnesses and Testimonial Evidence

1. When a witness is competent, that means that he has thequalifications and none of the disqualifications of a witness. A witness maybe competent to testify but he may not be credible. Thus, there is adistinction between competence of a witness and his credibility. The latter

term refers to the believability of the witness or the probative value of histestimony.

2. The religion, political belief and the interest of the witness in the casedo not affect the competence of a witness but may affect his credibility.

3. As a rule, all persons who can perceive, and in perceiving can makeknown their perception to others, may be witnesses (Sec. 20, Rule 130)

4. A witness must answer questions, although his answer may tend toestablish a claim against him (Sec. 3, Rule 132). Following this rule, he may

be required by the court to answer a particular question even if it wouldresult into his admission of a liability adverse to him. This provisionhowever, obviously refers to a civil claim or a claim not penal in naturebecause if the answer will tend to subject the witness to a penalty for anoffense, he has the right not to give an answer (Sec. 3(4), Rule 132) becausehe is protected by the constitution through his right against self-incrimination.

5. On cross-examination, the witness may not only be cross-examined asto matters testified to by the witness in the direct examination. He may beasked questions on matters connected with his testimony in the direct

examination although not directly testified to by him as long as theconnection may be established. The cross-examiner is in fact given sufficientfullness and freedom to ask questions that would test the accuracy andtruthfulness of the witness and his freedom from interest or bias and to elicitimportant facts bearing on the issues (Sec. 6, Rule 132). A witness cannot becompelled to answer a question which degrades his reputation, except if hisreputation is the very fact in issue in the case or from which the fact in issue

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would be presumed. With regards to a previous final conviction of thewitness, a witness must answer a question as to the fact of such convictionfor an offense. If it is a conviction that is not yet final, a witness may not becompelled to answer (Sec. 3(5), Rule 132).

6. A witness should not be asked leading questions in a directexamination. This is the general rule. Asking leading questions is however,the norm in a cross-examination. In a cross-examination, what is prohibitedis asking a misleading question.

7. Even in a direct examination, there are instances when a leadingquestion is allowed. Preliminary questions for instance, could involve leadingquestions. Also, when there is difficulty in obtaining intelligible answers froma witness who is ignorant, or from a child of tender years, or from one who isfeeble-minded, leading questions could be allowed. The same holds truewhen a witness is unwilling or hostile or is an adverse party or when the

witness is one who represents an adverse party which is a juridical person(Sec. 10, Rule 132).

8. Impeachment of a witness Impeachment of a witness is the processby which is credibility is attacked or assailed. The rule recognizes three (3)modes of impeaching a witness. They are:

(a) By contradictory evidence (b) by evidence that his generalreputation for truth, honesty and integrity is bad, or (c) by evidence that hehas made at other times statements inconsistent with his present testimony(Sec. 11, Rule 132).

A witness cannot be impeached by presenting evidence of hisparticular wrongful acts as when evidence of a series of misconduct by thewitness is offered. There is one evidence of a wrongful allowed to be offeredand that is his previous conviction of an offense (Sec. 11, Rule 132).

Note that under Sec. 11 of Rule 132, a witness cannot be impeachedby evidence of his bad character although he can be impeached by evidenceof his general bad reputation. The rule emphasizes reputation, notcharacter. Reputation is how a person is perceived by his community. Whilecharacter is what a person is. The reputation of a witness for purposes of

impeachment is however confined to three matters, namely: (a) truth, (b)honesty, and (c) integrity. Hence, you cannot impeach a witness because ofhis reputation for being troublesome.

When a witness testifies in court for instance, that it was the plaintiffwho ran the red light in an intersection but tells a police officer immediatelyafter the incident that it was the defendant who ran the red light and not theplaintiff, we have a clear case where the witness made a statementinconsistent with his in-court testimony.

It is correct to immediately call the police officer to testify on the

inconsistent statement of the witness? It would not be procedurally correct. The rule requires the adverse party to lay the predicate before theimpeaching witness (the police officer) is called to the stand. Laying thepredicate means that the inconsistent testimony must first be related to thewitness, with the circumstances of the times and places and the personspresent, and then he must be asked whether he made such statement, and ifso, be allowed to explain the making of the inconsistent statement. If the

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inconsistent statement be in writing, it must be shown to the witness beforeany question is put to him (Sec. 13, Rule 132).

9. Disqualification by reason of marriage (Sec. 22, Rule 130); Maritalprivileged communication rule (Sec. 24(a, Rule 130))

The disqualification of a witness by reason of marriage is commonlyknown as the marital disqualification rule. The tenor of this rule obviouslyapplies only to spouses who have been validly married or whose marriagehas not been annulled or declared void. The rule does not include commonlaw relationships.

The rule prohibits either of the spouses to testify for or against theother without the consent of the affected spouse. Note that the testimonywhich requires consent is not only a testimony against the spouse becauseeven a favorable testimony (note the term, for) requires consent under Sec.

22 of Rule 130). The prohibition however, no longer exists when themarriage has already been dissolved. The prohibition applies only during themarriage.

Do not confuse Sec. 22 with the marital privileged communication ruleunder Sec. 24(a) of Rule 130. The marital privileged communication ruleunder Sec. 24(a) will be used only when the facts of the case show that thereis a confidential information transmitted from one spouse to the other. Thisinformation if meant to be between the spouses alone is privileged andcannot be disclosed without the consent of the affected spouse. The otherspouse cannot be examined without the consent of the other as to the

privileged communication. If there is a privileged communication, theduration of the prohibition applies not only during the existence of themarriage. The prohibition exists even afterthe marriage.

Rule: If there is no confidential information, use Sec. 22. If there is, useSec. 24(a). Note that both rules have common exceptions. In a civil case, theprohibition to testify or to be examined will not apply when the case isbetween the spouses, i.e., by one against the other. In a criminal case, theprohibition will not apply where one spouse is prosecuted for a crimecommitted against the other spouse, or against the latters ascendants ordescendants in the direct line. Thus, the prohibition still applies where the

crime is committed against collateral relatives.

10. Attorney-client privileged communication rule (Sec. 24(b), Rule 130 -The prohibition on an attorney to disclose communications from his clientrefers to communications made by the client in the course of the lawyersprofessional employment. Even the advice of the attorney cannot bedisclosed without the consent of the client. The prohibition does not coveronly the attorney. It also prohibits a disclosure by the attorneys secretary,stenographer or clerk. Like the attorney, they cannot be examined as to thecommunication made by the client without the latters consent.

11. Physician patient privileged communication rule(Sec. 24c), Rule 130 This prohibition refers to persons authorized to practice medicine, surgery orobstetrics. Note the express reference only to a civil case.

12. Parental and filial privilege rule (Sec. 25, Rule 130). A restatement ofthis rule discloses that a person may testify against his parents, other directascendants, children or other direct descendants. He should not however, be

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compelledto make the testimony. Whether or not he will testify against suchperson is a matter subject to said persons discretion. A compelled testimonyis what the rule obviously prohibits.

Hearsay Evidence Rule (Sec. 36, Rule 130)

1. Generally, hearsay evidence is inadmissible because the person whotestifies does so based on matters not of his personal knowledge but basedon the knowledge of another who is not in court and cannot therefore, becross-examined. The one who is in court is the person who merely repeatsmatters witnessed personally by another. This type of evidence isinadmissible because of its inherent unreliability. Sec. 36, Rule 130 requiresthat A witness can testify only to those facts which he knows of his personalknowledge; that is, which are derived form his own perception, except asotherwise provided in these rules.

2. A hearsay evidence may be in writing. For instance, an affidavit ishearsay unless the affiant affirms the same in court and is subject to cross-examination.

A hearsay testimony involves an outside-declarant and an in-courtwitness. It is the outside declarant who says something based on what hehas perceived. His statement is heard by someone who is the one whotestifies in court (in-court witness) as to what he heard. If the witness offersthe statement of the outside declarant to prove the truth of such statement(the one which he heard) the testimony of the witness is hearsay. If itsoffered merely to prove that he heard the statement without reference to its

truth or falsity, his testimony is not hearsay. Illustration: Wilfredo testifies: Iheard Pablo say that it was Jose who shot the victim! Is this hearsay? Itdepends upon the purpose. If the statement of Pablo is offered to prove thatit was really Jose who shot the victim, the testimony is hearsay. Wilfredo hasno personal knowledge of the incident. It is Pablo who witnessed theshooting. It is Pablo who should be in court to testify so he could beexamined effectively. Wilfredo cannot be subjected to a true cross-examination because he has no personal knowledge to testify to and hence,cannot be cross-examined to ferret out the truth.

If the testimony is offered merely to prove what he heard Pablo say,

the testimony is not hearsay. If what he heard is relevant to an issue in thecase, it will fall under the category of independently relevant statementswhich means statements which are relevant as to their tenor or to the factthat they were uttered and not as to whether they are true or false.

3. There are exceptions to the general rule that hearsay evidence isinadmissible. Hearsay evidence may in some instances be admissible. It isnot correct to say that the exceptions to the hearsay rule are not hearsay. They are indeed hearsay. But they are admissible because they areconsidered reliable by common experience. Thus, it would be moreappropriate to call these exceptions as admissible hearsay.

The following are the exceptions:

(a) Dying declarations (b) Declarations against interest (c) act ordeclaration about pedigree (d) family tradition or reputation regardingpedigree (e) common reputation (f) Part of the res gestae (g) entries in thecourse of business (h) entries in official records (i) commercial lists and the

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like (j) learned treatises, and (k) testimony at a former trial. Advice: See thecodal descriptions for each.

4. Dying declarations This is the most significant exception to thehearsay evidence rule. If before he died, X told a police officer that it was Y

who shot him, it would be the officer who would be testifying in court. Theofficer has no personal knowledge of the event. If the dying declaration of Xis offered to prove the guilt of Y, the testimony of the officer in court isdefinitely hearsay. The dying declaration of X is however, an exception to theinadmissibility of hearsay evidence. There has been a traditional acceptanceof dying declarations because of the presumption that a dying person will tellthe truth before he meets his Creator. While there is no guarantee that aperson in the throes of death will tell the truth, this assumption has beentraditionally accepted for almost two hundred years, an assumption whichhas trickled down to modern times.

The most significant element therefore, of a dying declaration is thatthe declaration must have been conscious of his impending death. It is thisconsciousness which is assumed to be the compelling motive to tell thetruth.

To be admissible as a dying declaration, the declaration must relate tothe cause and circumstances of the declarant. Any statement he makes notrelated to the circumstances of his death is inadmissible as a dyingdeclaration.

The dying declaration is admissible in anycase provided the subject of

inquiry in that case is the death of the declarant. The old rule that it isadmissible only in a criminal case no longer holds true because of thephraseology of Sec. 37 of Rule 130.

It is required that the declarant should die. If he lives, there is no needfor the dying declaration because the declarant may testify personally basedon his own personal knowledge. Suppose by chance he survives but isunable to testify due to severe physical and emotional infirmity, may hisdeclaration be admitted in evidence? Yes but not as a dying declaration. Itcould be admitted as a statement made by a person immediatelysubsequent to a startling occurrence. The shooting of the declarant is the

startling occurrence. The statement made as to the circumstances of theshooting, while not a dying declaration because he survived, could beconsidered as part of the res gestae under Sec. 42 of Rule 130.

5. Part of the res gestae this exception presupposes that there is astartling occurrence, an event which causes excitement to the perceiver. Astatement made by the declarant about the occurrence or event while theevent is taking place or immediately prior or subsequent thereto isadmissible as part of the res gestae. Note that the one who made thestatement is not the one testifying in court. Under normal circumstances heshould be the one in court as the actual perceiver of the event. But if he is

not available, the person who heard his utterances may testify. The in-courtwitness is the person who did not perceive the occurrence. His testimony isactually hearsay for lack of persona

evidence handout final)

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