Evidence defined

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

Purpose of Evidence

To ascertain or find out the truth respecting a contested fact in a judicial proceeding.

When necessary-

Factual Issues

It becomes necessary to present evidence in a case when the pleadings filed present factual issues. Factual issues arise when a party specifically denies material allegations in the adverse party’s pleading. These are the issues which the judge cannot resolve without evidence being present thereon.

Thus, whether a certain thing exists or not, whether a certain act was done or not, whether a certain statement was uttered or not, are questions of fact that require evidence for their resolution. Questions of fact exist when the doubt or difference arises as to the truth or falsehood of alleged facts. (Paranaque Kings Ent. Inc. v. CA, 268 SCRA 727; Sps. Santos v. CA 337 SCRA 67, 74).

Exceptions:

a) Allegations contained in the complaint or answer immaterial to the issues;

b) Facts which are admitted or which are not denied in the answer, provided they have been sufficiently alleged;

c) Those which are the subject of agreed statement of facts between the parties as well as those admitted by the party in the course of the proceedings in the same case;

d) Facts which are the subject of judicial notice;

e) Facts which are legally presumed; and

f) Facts peculiarly within the knowledge of the opposite party. (Republic v. Vda de Neri, et al. 424 SCRA 676, 692).

Legal issues need no evidence

When pleadings fail to tender an issue of

fact-

When pleadings fail to tender an issue of fact, either because all the factual allegations have been admitted expressly or impliedly ( as when a denial is a general denial), there is no need to conduct trial, as there is no need to present evidence anymore. The case is then ripe for judicial determination, either through a judgment on the pleadings (Rule 34).

Proof vs. Evidence

Proof is not the evidence. Proof is the result of evidence. It is the conviction and persuasion of the mind resulting from a consideration of the evidence. (29 Am Jur 2d, Evidence)

a) Object or Autoptic Evidence – those presented to the senses of the court (Sec 1 Rule 130)

Kinds:

1) Those which are exhibited or produced inside or outside the courtroom;

2) Those which are to be inspected outside the courtroom, like cracks in a building;

3) Those resulting from a demonstration or experiment, like when the accused is directed to put on a pair of gloves.

b) Documentary evidence – consists of writings or any material containing letters, words, numbers, figures, symbols or other modes of written expressions offered as proof of their contents.(Sec. 2 Rule 130)

Note to be considered as documentary evidence, the writings or material, containing letters, words, numbers, etc., must be offered to prove the contents.

c) Testimonial evidence - that which a witness states in court, which can be oral or written

Other classifications include

d) Direct evidence – that which proves a fact in issue without need for the judge to draw an inference or conclusion thru reasoning.

e) Circumstantial evidence – the judge has to infer the fact in issue from the facts established by it.

The study of evidence involves the following

main parts:

a) determining whether a given piece of evidence is admissible;

b) the proper presentation of a piece of evidence so that the court will consider it in resolving the issues and deciding the case; and

c) weight or the tendency of the evidence to convince and persuade.

A. Admissibility of Evidence

1) Axiom of Admissibility of Evidence

Evidence is admissible when it is

a) relevant to the issue and

b) is competent or not excluded by the law or the Rules of Court. (Sec. 3, Rule 130, Rules of Court).

Relevance

Evidence is relevant if it may establish directly or indirectly the existence or non-existence of the facts in issue. (Sec. 4, Rule 128, Rules of Court).

When it has a rational relation with the fact in question, i.e., the fact or facts to be proved in a case, as to induce a belief as to its existence or non-existence.

The evidence must be directed to the facts

in dispute.

Evidence on the credibility or lack of it of a witness is always relevant because the credibility of a witness is always an issue as it has the tendency to prove or disprove the truthfulness of his/her testimony.

The test of relevancy is therefore, logic,

common sense and experience.

Collateral matters

General rule:

Evidence on collateral matters are not allowed.

Term collateral connotes an absence of direct connection between the evidence and the matter in dispute.

Exception: when it tends in any reasonable degree to establish the probability or improbability of the fact in issue.

Evidence of similar acts

Admissible for any of the following

purposes:

a) Specific intent

b) Knowledge

c) Identity

d) Plan

e) System

f) Scheme

g) Habit

h) Custom and the like.

Competence

When it is not excluded by law or the rules.

If the test of relevance is logic and common sense, the test of competence is the law or the rules. Competence is a matter of what is allowed by law or the rules.

2. Requisites of admissibility as related to the different kinds of evidence.

a. Object Evidence

Note that when object evidence is offered in accordance with the requisites of admissibility, it becomes evidence of the highest order. It speaks more eloquently than any testimony.

A. Object evidence to be admitted:

1) Must be relevant;

2) Must be competent, i.e., must pass the test of authentication

3) Authentication must be made by a competent witness; and

4) Must be offered formally in evidence

Authentication of Object Evidence

Means to show that the object is the very thing that is either the subject matter of the controversy or the very one involved to prove an issue in the case.

Testimonial evidence provides the foundation for the object evidence. The object evidence cannot be taken in isolation.

For purposes of authentication, object evidence is classified into the following categories:

a) Objects that have readily identifiable marks (unique objects);

So long as the witness testifies that the object has a unique characteristic, he saw the object on the relevant date, remembers its characteristics, asserts that the object shown to him in court is the same or substantially in the same condition as when he first saw it and alleges that these characteristics are those of the object he is identifying in court, the authentication is satisfied.

b) Objects made readily identifiable (objects made unique)

testify as to what he did or saw done to make the object identifiable; that he saw the object on the relevant date; that he remembers the identifying marks placed; and that the object presented to him for identification in court has the characteristics he made on the object.

c) Objects with no identifying marks and cannot be marked (non- unique objects)

The proponent of the evidence must establish a chain of custody. Since it is called a chain, there must be links to the chain. The links are the people who actually handled or had custody of the object.

Each of the link in the chain must show how he received the object, how he handled it to prevent substitution and how it was transferred to another. Each of the handlers of the evidence is a link to the chain and must testify to make the foundation complete. This is the ideal way.

Courts, however, rule that in setting up the chain of custody, the prosecution is not required to elicit testimony from every custodian of the evidence or from every person who had an opportunity to come in contact with the evidence sought to be admitted. As long as one of the “chains” testifies and his testimony negates the possibility of tampering, his testimony alone is adequate to prove the chain of custody.

Demonstrative Evidence

Is not the actual thing but called “demonstrative” because it represents or demonstrates the real thing. Strictly not object evidence because it is not the very thing involved in the case.

When instructive to the understanding of

the case, it will be admitted.

The admissibility of this type of evidence depends largely on laying the proper foundation for the evidence. The rule boils down to one basic question: Does the evidence sufficiently and accurately represent the object it seeks to demonstrate or represent? If it does, it would be admissibile.

b. Documentary Evidence

To be admissible:

1) Must be relevant;

2) Must be authenticated;

3) Authentication by a competent witness; and

4) Offered in evidence.

To authenticate private documents, it is required to establish that the document is duly executed and authentic.

Due execution and genuiness can be

proven:

a) By anyone who saw the document executed or written; or

b) By evidence of the genuiness of the signature or handwriting of the maker.

Salas v. Sta. Mesa Market Corp., et al., G.R.

No. 157766, July 12, 2007

The nature of a document, whether public or private document is relevant in the determination of its admissibility

c. Testimonial Evidence

This is evidence elicited from the mouth of a witness through questions propounded by the examining counsel in open court. 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 (Rule 132 Sec. 1).

When applied to a witness, competence

means qualification to take the stand.

Basic qualifications of a witness:

a) He can perceive; and is perceiving;

b) He can make known his perception to others.

Does not disqualify:

a) Religious belief;

b) Political belief;

c) Interest in the outcome of the case; or

d) Conviction of a crime.

Rule:

“A witness can testify only to those facts which he knows of his own personal knowledge; that is, which are derived from his own perception, except as otherwise provided in these rules.” (Sec. 36, Rule 130)

Incompetent Evidence:

HEARSAY EVIDENCE

Basis for the exclusion:

There is no opportunity to cross-examine the outside declarant.

Specific Elements of Hearsay Evidence:

1)There must be an out-of-court statement. What matters is that the statement was not made by the declarant in the hearing or trial;

2)That the statement made out of court is repeated and offered by the witness in court to prove the truth of the matters asserted by the statement.

Affidavit as hearsay evidence

Tating v. Marcella, et al., G.R. No. 155208,

March 27, 2007

It is settled that affidavits are classified as hearsay evidence since they are not generally prepared by the affiant but by another who uses his own language in writing the affiant’s statements,

which may thus be either omitted or misunderstood by the one writing them. (Lim v. Court of Appeals, 380 Phil. 60,78 (2000)) citing People’s Bank and Trust Company v. Leonidas, G.R. No. 47815, March 11, 1992, 207 SCRA 164; D.M. Consunji, Inc. v. Court of Appeals, G.R. No. 137873, April 20, 2001, 357 SCRA 249, 260-261).

Moreover, the adverse party is deprived of the opportunity to cross-examine the affiant. For the reason, affidavits are generally rejected for being hearsay, unless the affiants themselves were placed on the witness stand to testify thereon.

Phil. Realty Holdings corp. v. Firematic

Phils. Inc., G.R. No. 156251, April 27, 2007

Well-entrenched is the rule that a private certification is hearsay where the person who issued the same was never presented as a witness. The same is true of letters. While hearsay evidence may be admitted because of lack of objection by the adverse party’s counsel, it is nonetheless without probative value.

Stated differently, the declarants of written statements pertaining to disputed facts must be presented at the trial for cross-examination. The lack of objection may make an incompetent evidence admissible, but admissibility of evidence should not be equated with weight of evidence. Indeed, hearsay evidence whether objected to or not has no probative value.

Instance when hearsay evidence may be

admitted:

But when the statement is presented to prove something else, without reference to its truth, it is not hearsay and hence, admissible. Such statement is non-assertive of the truth like:

a. To prove that the statement was made;

b. To show the feelings or state of mind of the defendant, like his mental condition, motive, fear, apprehension, good or bad faith. (People v. Ramos, 30 Cal. 3d. 553).

Exceptions to hearsay rule:

1. “Parts Res Gestae”

Limited to 2 matters:

a) Spontaneous statements;

Requisites:

1) There is a startling event taking place;

2) That while taking place or immediately prior to or subsequent thereto, a statement is made;

3)That the statement relates to the circumstances of the startling event

The res gestae is the startling event and the

part refers to the statement.

b) Verbal Acts

Statements accompanying an equivocal act material to the issue, and giving it a legal significance.

It is the statement contemporaneous with the act that identifies or indicates the character or purpose or motive of the act.

2. Dying Declaration Sec. 37, Rule 130

The admissibility of dying declaration is founded on public policy. It is so because a person who is about to face his Creator can be expected to tell the truth. (People v. Calago, G.R. No. 141122, April 22, 2002).

Requisites:

a. The declaration is made under a consciousness of impending death

b. The declaration is used in a criminal or civil case where the death of the declarant is the subject of inquiry. (U.S. v. De la Cruz, 12 Phil. 87; People v. Molas, G.R. no. 97437-39, February 5, 1993).

c. The declaration is to prove only the cause and circumstances producing and attending the death of the declarant. (People v. Bustos, 45 Phil. 9; People v. Sabio, 102 SCRA 219).

d. The declarant is competent as a witness. (People v. Apa-ap, G.R. No. 110993, August 17, 1994).

3. Rule 130, Sec. 38 – Declaration Against Interest

The basis of the rule is the belief that a person will not make a false statement if it will be against his precuniary or moral interest.

Requisites:

a. It is made by a person who is dead,

outside the Philippines, or unable to

testify.

b. The declaration is not self-serving. (Ong v. CA, 100 SCRA 641).

c. The declarant knew the facts and had no motive to misrepresent or falsely testify them. (People v. Bernal, 274 SCRA 197).

4. Sec. 39, Rule 130 – Evidence of Pedigree or Family History

Matters of the family history like the relationship, age, date and place of birth, marriage or death of a family member may be established by an act or declaration of a dead or unavailable person. It may be found in a family bible, deed, letter, will or other types of family record.

Requisites:

a. The declarant is dead, outside the country, or otherwise unavailable;

b. He is a member of the family either by birth or marriage which fact must be proven by independent evidence. (Ferrer v. De Inchaustim 38 Phil. 905; Lazatin v. Campos, 92 SCRA 250).

c. The declaration is made before the controversy at a time when the declarant has no motive to lie. (Gravador v. Manigo, 20 SCRA 742).

Parties or assignors of parties to a case, or person in whose behalf a case is prosecuted, against an executor or administrator or other representative of a deceased person, or against a person of unsound mind, upon a claim or demand against the estate of such deceased person or against such person of unsound mind, cannot testify as to any matter of fact accruing before the death of such deceased person or before such person became of unsound mind.’ (Sec. 23, Rule 130, Rules of Court).

The reason for the rules is that if persons having a claim against the estate of the deceased or his properties were allowed to testify as to the supposed statements made by him (deceased person), man would be tempted to falsely impute statements to deceased persons as the latter can no longer deny or refute them,

thus unjustly subjecting their properties or rights to false or unscrupulous claims or demands. The purpose of the law is to “guard against the temptation to give false testimony in regard to the transaction in question on the part of the surviving party.” (Tongco v.Vianzon, 50 Phil. 698; Go Chi Gun, et al. v. Go Cho, et al., 622[1955]).

Heirs of Lourdes Sabanpan v. Concepcion,

456 Phil. 161 (2003)

Admissibility of evidence not equated with its weight.

Ladingnon v. CA, 390 Phil. 1160

(2000);Rivera, et al. v.Turiano, G.R. No.

156249, March 7, 2007).

Mere comparison of signatures does not support the claim of forgery.

Rules in determining the existence of

forgery.

The process of identification, must include the determination of the extent, kind and significance of this resemblance as well as of the variation. It then becomes necessary to determine whether the variation is due to the operation of a different personality, or is only the expected and inevitable variation found in genuine writing of the same writer.

It is also necessary to decide whether the resemblance is the result of a more or less skillful imitation, or is the habitual and characteristic resemblance which naturally appears in a genuine writing. When these two questions are correctly answered the whole problem of identification is solved.

Presentation of handwriting experts to

determine forgery

Jovina Dabon Vda. De Mendez v. CA, Et al.,

G.R. No. 174937, June 13, 2012

Finding of forgery does not always depend upon expert testimony.

B. Presentation of Evidence

Note that there is now a preclusion rule as distinguished from the exclusionary rule as provided in Rule 128 Sec. 3.

No evidence shall be allowed to be presented and offered during the trial in support of a party’s evidence-in-chief other than those that had been identified and pre-marked during the pre-trial. Any other evidence not indicated or listed in the pre-trial order shall be considered waived by the parties.

However, the Court, in its discretion, may allow introduction of additional evidence in the following cases: (a) those to be used on cross-examination or re-cross-examination for impeachment purposes;

(b) those presented on re-direct examination to explain or supplement the answers of a witness during the cross-examination; those to be utilized for rebuttal or sur-rebuttal purposes; and (d) those not available during the pre-trial proceedings despite due diligence on the part of the party offering the same. (A.M. No. 03-1-09-SC)

Offer of Evidence

Why the court will consider evidence only if

it is offered.

It is well-settled that courts will consider as evidence only that which has been formally offered, Sec. 34, (Rule 132), otherwise, the opposing party would be denied due process of law. (Pigao v. Rabanillo, G.R. No.150712, May 2, 2006, 488 SCRA).

Lomises Aludos v. Johnny Suerte, G.R. No.

165285, June 18, 2012

Testimonial Evidence

a) Testimony must first be offered stating the purposes (Sec. 35, Rule 132);

b) Objections to be made immediately if available (Sec. 36, Rule 132);

c) Tender of excluded evidence;

d) Objections may be raised as soon as the grounds become reasonably apparent. (Sec. 36, Rule 132);

e) Rights of witnesses, (Rule 132, Sec.3), especially child witness under the Child Witness Rule;

f) Offer of evidence

It must be formally offered at the time the witness is called to testify (Rule 132 Sec. 35). Objections may then be raised against the testimony of the witness. If the objection is valid, as when the testimony is barred by the hearsay rule or the opinion rule, the witness will not be allowed to testify. If the witness is otherwise allowed to testify, he shall be sworn in, either by taking an oath or making an affirmation. (Rule 132, Sec. 1)

Need of laying the proper foundation of the

testimony of witness-

It is essential that the proper foundation for the testimony of a witness must be laid. An ordinary witness must be shown to have personal knowledge of the facts he shall testify to, otherwise his testimony will be hearsay, or he will be incompetent to answer the questions to be asked of him.

An expert witness must be specifically qualified as such; otherwise, he cannot validly give his opinion on matters for which he may have been summoned as a witness.

However, the requirement of qualifying an

expert witness may be dispensed with if:

(a) the adverse counsel stipulates on the expert’s qualification; or

(b)the court takes judicial notice of the witness’ expertise because the judge happens to be aware thereof on account of the judge’s judicial functions.

People v. Marcos 212 SCRA 748; People v.

Anchta, et al, 431 SCRA 42, 49-50

The Court ruled that if a witness has given unoffered direct testimony without objection from the adverse party, the latter is estopped from raising that objection which he is deemed to have waived; hence, although not formally offered, the testimony may be considered by the court.

The view can be advanced, however, that although the aforesaid testimony was not expressly formally offered, it was, nonetheless formally offered, albeit impliedly and automatically, the moment each question was propounded to elicit an answer. This view is premised on two related provisions in Rule 132, Sec. 36, i.e., that “Objection to evidence offered orally must be made immediately after the offer is made:,

and that “Objection to a question propounded in the course of the oral examination of a witness shall be made as soon as the grounds therefore shall have become reasonably apparent.” Clearly the purpose of the express formal offer of oral evidence before the witness testifies is merely to determine, on the basis of the stated substance of the testimony and its purpose, whether the witness shall be allowed to testify.

Once the witness is allowed to testify, each question propounded to elicit specific oral evidence may still be objected to as soon as a ground for objection becomes reasonably apparent. But it is fundamental that an objection to evidence be validly raised only after an offer is made. Thus, every question asked of a witness, especially on direct examination,

presupposes a formal offer of the answer, the oral evidence sought to be elicited. It would seem, therefore that unlike documentary and object evidence, which are formally offered only after all the witnesses of a party have testified, oral evidence is offered twice: once, expressly, before the witness testifies and, again, with each question propounded to the witness.

Failure to interpose any objection in either stage amounts to waiver of objection to its admissibility. (Bayani v. People, G.R. No. 155619, Aug. 14, 2007, 530 SCRA 84, 92)

Who has the burden of proof to prove a

cause of action.

It is a basic rule in evidence that the burden of proof lies on the party who makes the allegations

In civil cases, the party having the burden of

proof must establish his case by a preponderance of evidence. Preponderance of evidence is the weight, credit,

and value of the aggregate evidence on either side and is usually considered to be synonymous with the term “greater weight of evidence” or “ greater weight of the credible evidence”. Preponderance of evidence is a phrase which, in the last analysis, means probability of the truth. It is evidence which is move convincing to the court as worthy of belief than that which is offered in opposition thereto. (Rep. v. Orfinada, Sr., G.R. No. 141145, November 12, 2004, 442 SCRA 342; Ching v. Nicdao, et al., G.R. No. 141181, April 27, 2007).

Guidelines in determining preponderance of

evidence.

the court may consider all the facts and circumstances of the case, the witnesses’ manner of testifying, their intelligence, their means and opportunity of knowing the facts to which they are testifying, the nature of the facts to which they testify, the probability or improbability of their testimony, their interest or want of interest,

and also their personal credibility so far as the same may legitimately appear upon the trial. The court may also consider the number of witnesses, though the preponderance is not necessarily with the greater number. (Rule 133, Sec. 1; Ching v. Nicdao, et al., No. 141181, April 27, 2007,).

Nature of the rebuttal evidence.

Evidence not offered cannot be considered

in the rendition of the judgment.

Exceptions to the rule:

1. The Rule on Summary Procedure where no full blown trial is held in the interest of speddy administration of justice;

2. Summary Judgment (Rule 35), where the judge bases his decision on the pleadings, depositions, admissions, affidavits and documents filed with the court;

3. Document whose contents are subject of judicial notice;

4. Documents whose contents are admitted by the parties;

5. If a witness has given an unoffered direct testimony without objection, the adverse party is stopped from raising objections which he is deemed to have waived;

6. Object evidence that have disappeared or have been lost after they were marked, identified and testified on and described in the record and became the subject of cross-examination of the witnesses who testified on them during the trial;

7. In land registration, cadastral and election cases, naturalization and insolvency proceedings when it is not practicable and convenient to apply the Rules on formal offer of evidence. (Ong Chia v. Republic, G.R. No. 127240, March 27, 2000)

Guidelines in determining the age of the

victim.

Sierra v. People G.R. No. 182941, July 3,

2009

The Court ruled that it is the defense which has the burden of proving the minority of the accused as an exempting circumstance in a crime of rape, since age or minority is not an element of this crime.

If the prosecution has a burden related to age, this burden relates to proof of age of the victim as a circumstance that qualifies the crime of rape. With respect to the provision of R.A. No. 9344 (Juvenile Justice and Welfare Act of 2006), the last paragraph of Section 7 thereof provides that any doubt on the age of the child must be resolved in the child’s favor.

Three principles that serve as guide to the

courts in the review of rape cases.

In the review of rape cases, courts are required by three principles: (1) an accusation for rape can be made with facility, and it is difficult to prove but more difficult for the accused, though innocent, to disproved; (2) in view of the intrinsic nature of the crime of rape where only two persons is usually involved,

the testimony of the complainant must be scrutinized with extreme caution; and (3) the evidence for the prosecution must stand or fall on its own merit, and cannot be allowed to draw strength from the weakness of the evidence for the defense. (People v. Fernandez, G.R. No. 172118, April 24, 2007).

In resolving rape cases, the primordial consideration is given to the credibility of the victim’s testimony. (People v. Noveras, G.R. No. 171349, April 24, 2007).

Moreover, at the heart of almost all rape cases is the issue of the credibility of the witnesses. This is primarily because the conviction or acquittal of the accused virtually depends entirely on the credibility of the victim’s testimony as only participants can testify to its occurrence.

It is also settled that the accused may be convicted solely on the basis of the victim’s testimony, provided that such testimony is credible, natural, convicting, and consistent with human nature and the normal course of things. If the victim’s testimony meets the test of credibility, this is sufficient to convict the accused. The credibility of the victim is almost always the single most important issue to hurdle.

MODES OF EXCLUDING INADMISSIBLE EVIDENCE

1. By objection; and

2. By a motion to strike out.

In order that an objection or a motion to strike out after an answer has been given, may be effective to render the evidence inadmissible, the following requisites must concur:

1) there must be an objection;

2) the objection must be timely made; and

3) the ground for objection must be specified. (Rule 132 Sec. 36)

Failure to seasonably object to offered evidence amounts to a waiver of the grounds for objection. However, the rules of exclusion are not self-operating. They must be properly and timely invoked.

Grounds not raised are deemed waived. However, repetition of objection is unnecessary when a continuing objection is properly made. Objection to the purpose for which evidence is offered is not proper.

Evidence is objected to at the time it is offered and not before.

Objection to evidence may be formal or

substantive

1. Formal objections are based on the defective form of the question like leading, multiple, vague, repetitious or argumentative questions.

2. Substantive objections are those based on the inadmissibility of the offered evidence, e.g.:

a. irrelevant, immaterial;

b. best evidence rule;

c. parole evidence rule;

d. disqualification of witness;

e. privileged communication;

f. res inter alios acta;

g. hearsay;

h. opinion;

i. evidence illegally obtained; and

j. private document not authenticated.

A Motion to Strike Out Answer or Testimony

is Proper in the following instances:

1. The witness answers prematurely;

2. The answer is incompetent, irrelevant, or improper.

3. The answer given is unresponsive;

4. The ground for objection was not apparent when the question was asked;

5. Uncompleted testimony – e.g., a witness who gave direct testimony subsequently becomes unavailable for cross-examination through no fault of the cross-examiner;

6. Unfulfilled condition in conditionally admitted testimony.

END