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Revised Rules on Evidence: Effective Date: May 1, 2020

General Principles
1. Evidence is usually referred to as a medium used to prove the existence or non-existence of
a fact in issue.
2. Application of Evidence - judicial & administrative bodies
3. Other rules of evidence - Environmental, Continuous trial,
4. Although the Rules on Evidence is not strictly applicable to quasi-judicial bodies, this is not a
license to disregard fundamental evidentiary rules.
5. Evidence is the means while proof is the desired result.
- One may present evidence to prove that the accused is the guilty one but the
evidence presented may not be enough to prove that the accused really committed
the crime. Thus, the means employed is not sufficient to achieve the desired result.

6. Proof is also a kind of evidence

- Not all kinds of evidence will prove something as true and correct or will constitute
proof.

7. DIRECT EVIDENCE. That which proves the fact in issue without the aid of any Inference.
CIRCUMSTANTIAL EVIDENCE. That which proves the fact in issue by way of inference.
8. Circumstantial evidence is sufficient for conviction if: (MPC)
1. There are MORE than one circumstance.
2. The Facts from which inference derived are PROVED.
3. The COMBINATION of all circumstances results to conviction beyond reasonable doubt.
- Circumstantial evidence is incontrovertible.
- Enough to convict an accused. Crimes are not committed in the open hence
sometimes direct evidence is hard to come by.

9. Corroborative evidence - Additional evidence to the same point.

10. Cumulative evidence - Additional evidence of the same kind and same point.
11. Declaration against interest - corroborative evidence is needed to exculpate the proponent
from criminal liability. If there is no corroborative evidence, the declaration against interest
will not be admissible as an exception to hearsay.
12. Prima facie evidence is that which by itself is sufficient to prove a fact but which may be
rebutted by contrary evidence, while conclusive evidence is one which may not be rebutted
or contradicted.
- Conclusive - also referred to as stand alone evidence
- Prima facie - evidence needed to rebut; prima facie evidence is clear and convincing
evidence.
- Estoppel - can no longer be rebutted.

13. Evidence is positive when the witness affirms that a fact did or did not occur, while negative
evidence is when the witness states he did not see or know of the occurrence of a fact.
 - Positive = the witness is categorically saying that a fact occurred or did not occur.
- Negative = All the witness is saying is that he doesn’t know if a fact occurred or
not. Hindi niya alam. Wala siyang alam sa nangyari.
- The fact that the witness testified in a negative manner does not mean it is a
negative evidence.
- ILLUSTRATION:
POSITIVE: “Achong did not shoot Okoy.” = affirms that a fact did not occur
NEGATIVE: “I did not see Achong shoot Okoy.” = hindi niya alam
- Positive is stronger than negative.

14. Evidence is admissible when it is relevant to the issue and is not excluded by the
Constitution, the law or by the Rules of Court. (S3 R128).
- ADMISSIBILITY = RELEVANCY + COMPETENCY
- Competency - evidence is not excluded hence the court should admit it.
- Relevancy - proves or has the tendency to prove a fact in issue.
- Competency v. Weight of Evidence
➢ It does not mean that an admitted evidence will be believed by the Court or
that it will be given due weight.
➢ One cannot object to the admission of evidence just because it is weak.
➢ There is no rule that only the best evidence can be admitted.

★ The penchant of many courts to admit inadmissible evidence “for whatever these are worth”
is condemned. Inadmissible evidence cannot have any probative value at all. (Buencamino v.
People, 10 Nov 2020, Caguioa, J.).
- A judge should rule on the objection of admission of evidence - sustained or
overruled the objection not just note the objections.
- USE THE PRECISE TERMS - Sustains or overrules the objection not denied or
granted

15. Two Main characters:

Proponent - the one offering an evidence
Adverse party - the one against whom the evidence is being offered

16. RELEVANCY = Evidence is relevant when it has a relation to the fact in issue as to induce
belief in its existence or non-existence.
- Example: The character of the defendant is irrelevant in a case of breach of contract.
Even a person in good moral character may breach a contract.
- relation to the fact = The fact is the issue and the evidence has a relation to that fact
in issue. A judge will only try the case based on the facts of the case through the
pleadings - Complaint and Answer; Information in criminal cases.
- Plaintiff alleged in the Complaint that there was breach of contract due to fraud.
Then he presented evidence of intimidation. Such a fact can be determined, but that
 fact is not in issue. Therefore the evidence of intimidation can be objected to as
irrelevant being outside the scope of the pleadings/ case.

17. COLLATERAL MATTERS - Matters which have no direct connection to the fact in issue.
- Like the character of the defendant. Same as above example.
- EXCEPTION: Is evidence on collateral matters allowed?
- No, except when it tends in any reasonable degree to establish the probability or
improbability of the fact in issue.
- Example; That the accused fled is a collateral matter but it could establish the
probability that he committed the crime because why would he flee right after the
occurence of the crime.

18. COMPETENCY - Even if the evidence is relevant, but it is excluded by the law or by the Rules
of Court, the evidence would be inadmissible.
- Exclusionary rules are based on policy considerations which override the probative
character of the evidence.(override the probative value of the evidence)
- Evidence may be relevant and even strong but if excluded cannot be admitted.
- Example of Exclusionary rules:
a. Illegal searches and seizures
b. marital disqualification rule - the evidence may be relevant but is excluded
for purposes of protecting the sanctity of marriage
c. attorney-client privilege - the state seeks to protect the lawyers to effectively
fulfill their mandate by encouraging the client to disclose everything.

CASE: De Jesus v. Sanchez-Malit, 8 Jul 2014

- Since both Article 7 of P.D. No. 603 and the Rules on Evidence do not provide for the
exclusion from evidence of the birth certificates, said public documents are admissible and
should be properly taken into consideration in the resolution of the administrative case
against the respondent.
- The law only provides for the confidentiality nature of birth certificates and sanctions to be
meted to one who will violate such confidentiality. But it did not say that it is covered by an
exclusionary rule. For an evidence to be excluded, there must be a true privilege.
- Certain matters may be characterized by law as confidential but in the absence of
exclusionary clauses can be presented as evidence. Confidentiality does not automatically
equate to evidentiary privilege.

Void contract admissible as evidence

- The wife sold a community property armed with an SPA, purportedly signed by the
husband, authorizing her to sell the property. The husband then filed a case for annulment
of deed of sale and disputed the use of the same instrument (DOS) as basis for the amount of
the purchase price because the contract embodied in the document is void.
- While the terms and provisions of a void contract cannot be enforced since it is deemed
inexistent, the contract is admissible as evidence to prove matters that occurred in the
course of executing the contract. (Tan v Hosana, 3 February 2016, Brion, J.).
- While a void contract can never be a source of rights or obligations, it can be presented to
prove matters that occurred in the execution of the contract.
- Therefore the void DOS can prove the consideration agreed upon by the void sale and the
seller should reimburse the buyer of the same amount in their recovery of the disputed
property.

19. Requisites for evidence to be considered by court (CORA)

1. RELEVANT.
2. COMPETENT (not excluded).
3. AUTHENTICATED (doc evid).
4. OFFERED IN EVIDENCE

20. Competent vs. credible evidence

- Competent evidence is that which is not excluded by law or by the Rules of Court
while credible evidence is that which is believable.
- Competent evidence may not be credible. Credible evidence may not be competent.
- The witness is biased hence his testimony is not credible but still the evidence is
competent. A bias witness can still testify in court. it can be seized
- Products of unlawful search: The evidence is believable (it can be sees) but excluded
by the Constitution.

21. Doctrine of conditional admissibility

- Where testimonial evidence initially appears to be irrelevant or incompetent, the
court should allow the testimony upon a promise of the proponent to later on show
the relevancy or competency of the testimony.
- This applies to testimonial evidence.
- Example: The proponent is introducing an out of court statement which can be
objected to by the adverse party on the ground of hearsay. Proponent: promises to
prove that the statement is an exception to hearsay rule being a declaration against
interest or independently relevant statement.

22. Doctrine of multiple admissibility

- Where evidence is admissible and offered for two or more purposes, such evidence
must be admitted for the two or more purposes.
- State the purpose for offering the evidence so the other party can make an
intelligent objection.
- Ante-mortem statement: could be offered as a dying declaration or as part of the res
gestae.
Specific Provisions:

Kinds of evidence (DOT)

1. DOCUMENTARY EVIDENCE = Writings or any material offered as proof of their contents. See
2020 amendments. What you are really offering to the court is not the medium but the
contents of that medium. E.g. Photograph - you are not offering the paper but the image on
that paper.

2. OBJECT (OR REAL) EVIDENCE = Evidence which is directly addressed to the court’s senses.

3. TESTIMONIAL EVIDENCE. Consists of the statement of a witness offered to the court. Maybe
oral/live or written (judicial affidavit, deposition). Statement of the witness. It presupposes
that there is a WITNESS. Example: Judicial Affidavits, depositions, etc.

Definition of documentary evidence -WRP (writing, recording, photographs)

Documentary evidence consists of writings, recordings, photographs or any material containing
letters, words, sounds, numbers, figures, symbols, or their equivalent, or other modes of written
expression offered as proof of their contents.
- The phrase “other modes of written expression” is misleading. Photographs are not modes
of written expression.

★ Photographs
A "photograph" means a photographic image or its equivalent stored in any form (FRE
R1001[c]) offered as proof of their contents. Photographs include still pictures, drawings,
stored images, x-ray films, motion pictures or videos. (S2 R130 as amended by the 2020
amendments).

★ Recording
A “recording" consists of letters, words, numbers, or their equivalent recorded in any
manner. (See FRE 1001[b]). Under S2 R130 as amended by the 2020 amendments,
recording includes “sounds.” >
- Hence, a recording of a conversation, speech, or other oral communication is considered as
documentary evidence. See Johns v. United States, 323 F.2d 421 (5th Cir. 1963).
- Since it is documentary evidence, one cannot produce a copy of the recording unless the
proponent accounts for the original recording.
- Not only of spoken or written words or verbal utterances but includes a recording of
non-verbal sounds = A recording of an explosion, gunshot, screen, etc.

ORIGINAL DOCUMENT RULE - FAVORITE BAR Q

The erstwhile best evidence rule is now known as the original document rule in order to avoid
confusion, since the rule applies only to documentary evidence.
- Formerly known as Best Evidence Rule. Reasons for the abandonment of the previous
nomenclature:
1. It gives the impression that only best or strong evidence is admissible.
2. It gives the impression that the best evidence rule applies to all types of evidence
like testimonial and object evidence.

- The original document rule provides that when the subject of inquiry is the contents of a
document, writing, recording, photograph or other record, no evidence is admissible other
than the original document itself. (S3 R130 as amended by the 2020 amendments).
- Even trying hard copycat evidence is admissible!
- This is an exclusionary rule or a rule of preference but it does not discount the use of
secondary evidence but the proponent has to lay the foundation for the introduction of the
secondary evidence in lieu with the original document.

Q: The prosecution witness testified that he saw a CCTV footage of the accused robbing the bank.
The defense counsel objected on the ground of the original document rule. The prosecutor argued
that the CCTV footage is not a document since it is not a writing. Is the prosecutor’s argument
correct?

Ans. No. Photographs, which includes motion pictures or videos, are expressly included in the
definition of documentary evidence under S2 R130 and in the original document rule under S3
R130 of the 2020 Rules on Evidence.

CASE: Seiler v. Lucasfilm, Ltd. 808 F.2d 1316 (9th Cir. 1987)
- Seiler’s drawings were “writings” within the meaning of FRE 1001(1); they consist not of
“letters, words, or numbers” but of “their equivalent.”
- The ODR is not confined to words or figures. Drawings are considered writings. They are the
equivalent of numbers and letters.

Original
- An “original” of a document is the document itself or any counterpart intended to have the
same effect by a person executing or issuing it. An “original” of a photograph includes the
negative or any print therefrom.
- If data is stored in a computer or similar device, any printout or output readable by sight or
other means, shown to reflect the data accurately, is an “original.”
- Photocopies = counterparts intended to have the same effect as the original.

Question #8, 2020-21 Rem Bar

8. Is the printout of a photograph from your mobile phone showing a fly in the soup you ordered
admissible evidence in an action for damages against the restaurant owner? Explain briefly.
Yes. Under the Rules on Evidence, if a document or data is stored in a computer or similar device,
any printout therefrom is an original and thus admissible in evidence. [Sec. 4(a), Rule 130, Rules on
Evidence]
- True issue in this question: Is the printout original? Dapat ba ipakita ang mobile phone?xxx
- Dapat ba yung phone ang ipakita mo or do you need to print out the picture?

NATIVE DATA = the bits and bytes in the computer or mobile phone itself.

Duplicate
A "duplicate" means a counterpart produced by a mechanical, photographic, chemical, electronic, or
other equivalent process or technique (MePECO) that accurately reproduces the original.

➢ A handwritten transcription is definitely not an original document because it does not

accurately reproduce the original.

QUESTION: Proponent presents in evidence a photocopy of a letter written by the adverse party
without accounting for the non-production of the original letter. The adverse party objects on the
ground of the original document rule. Should the objection be sustained? - Major changes in the
Rules.

ANSWER: No, the objection should be overruled.

Under S4(c) R130, “a duplicate is admissible to the same extent as an original unless (1) a genuine
question is raised as to the authenticity of the original, or (2) in the circumstances, it is unjust or
inequitable to admit the duplicate in lieu of the original.

A photocopy is a duplicate since it is a counterpart produced by photography which is a technique

which accurately reproduces the original.

VERY IMPORTANT PROVISION: Section 4. Original of document. —

(a) An "original" of a document is the document itself or any counterpart intended to have the same
effect by a person executing or issuing it

An "original" of a photograph includes the negative or any print therefrom. If data is stored in a
computer or similar device, any printout or other output readable by sight or other means, shown to
reflect the data accurately, is an "original."

(b) A "duplicate" is a counterpart produced by the same impression as the original, or from the same
matrix, or by means of photography, including enlargements and miniatures, or by mechanical or
 electronic re-recording, or by chemical reproduction, or by other equivalent techniques which
accurately reproduce the original.

(c) A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised
as to the authenticity of the original, or (2) in the circumstances, it is unjust or inequitable to
admit the duplicate in lieu of the original. (4a)

- A duplicate includes a photocopy of the original

- A duplicate is not the original but is treated as admissible to the same extent as an original
and the offeree does not have to lay the predicate on why the duplicate is being offered as
evidence.
- EXCEPTIONS:

1) a genuine question is raised as to the authenticity of the original (E.g. forgery in

the signatures)

(2) in the circumstances, it is unjust or inequitable to admit the duplicate in lieu of

the original (E.g. only a portion of the original is presented where the adverse party
is not given the opportunity to examine the original on its ENTIRETY).

ORIGINAL V. DUPLICATE

- An employer type in a Memorandum on his PC. Print out one copy and photocopied the
printed copy into several copies to be distributed to the employees. A, one of the employees
photocopied the copy he received as his personal copy.
➢ The Memorandum stored in the PC is an original.
A photocopy of
the original is a ➢ The photocopies are original. This should be "the printed copies" are original.
duplicate which ➢ The photocopy of A is a duplicate. It is not an original but it is admissible to the same
is admissible to
the same extent extent as an original and the offeree does not have to lay the predicate on why the
as that of the duplicate is being offered as evidence.
original.
➢ Original and Duplicate = No material distinctions as to admissibility except the
EXCEPTIONS where the duplicate cannot be offered as evidence.

A photocopy is a duplicate since it is a counterpart produced by photography which is a

technique which accurately reproduces the original. (See S4[b] R130).

FAQ: ODR applies only to documentary evidence not to testimonial/oral or object evidence.

- Place only right before the word it seeks to modify.

Air France v Carrascoso, 18 SCRA 155

 - Mr. Carrascoso was forcibly transferred from business class to an economy class. He
protested and a commotion occurred. A purser wrote down what was happening and also
wrote down that the Captain did not intervene. The pruser told Mr. Carrascoso of what he
wrote. Later on, Mr. Caroscoso filed a case and offered as evidence the statement of the
purser written down in the notebook. The other counsel objected arguing that what the
purser told Mr. Carrascoso violates the ODR/ Best Evidence Rule.
- HELD: Testimony on what the purser read to the witness from a notebook is not covered by
ODR.

Exceptions to Original Document Rule: (CLAP CO)

RULE 130, 2. Secondary Evidence
Section 5. When original document is unavailable. - When the original document has been lost or
destroyed, or cannot be produced in court, the offeror, upon proof of its execution or existence and the
cause of its unavailability without bad faith on his or her part, may prove its contents by a copy, or by
recital of its contents in some authentic document, or by the testimony of witnesses in the order stated.
(5a) - Possibility: Magiging testimonial ang supposedly documentary evidence.

1. C - Custody/Control. Original is in the custody or control of the adverse party and he fails to
produce despite reasonable notice.
- Notice must be given first by the proponent to the adverse party. The notice could be
oral or in writing. If the adverse party fails to produce it, then secondary evidence
may be offered.

2. L - Lost/Destroyed/Production cannot be made and without bad faith on the part of the
offeror. (LDP).
- If it was the offeror himself who destroyed the original perhaps because there is an
incriminating contents thereon. Negligence will not bar the proponent from
introducing secondary evidence such as because of his negligence on the part of the
offeror, the original document was lost.

3. A - Accounts which are numerous and cannot be examined without great loss of time and
the fact sought to be established is only the general result of the whole. (NTG [grew]).
- The total, bottom calculation can be presented instead.

4. P - Public record or recorded in a public office.

- Relate this to the principle of irremovability of public record: It will not be
convenient to remove a public record from where it is kept whenever there is a
proceeding or transaction where such a document is needed. The public record may
be lost due to its removal. Hence, the rule.
- The party may just ask a Certified True Copy.
2 additional exceptions to the original document rule (CO)

(1) The original is not related to a controlling issue. (S3 R130)

- The original is only a collateral evidence and not decisive to the material issues of the case.
- Inscribed Chattel Doctrine - The document is a short document (sign board, plate number,
etc.)
➢ A witness can testify that the defendant hit the victim on the head with a “Wilson”
tennis racket. Under the inscribed chattel doctrine, a rationale for the original
document rule, the unreliability of a witness’s memory, is not applicable since the
inscriptions tend to be simple and brief and hence easily remembered.
➢ Because the writing is very short, there is no room for the witness to commit a
mistake.

- Incidental references by a witness to road signs, street names, names of commercial

establishments, brand names, etc. are not excluded by the rule unless the terms of the
writing have particular significance in the litigation. –
- Committee Notes:
A witness can testify that the defendant hit the victim on the head with a “Wilson”
tennis racket.
Example: The witness said he remembered seeing a road sign. The court cannot ask
to produce the original road sign in court. This is only incidental to the main issue.

- ODR does not apply if the contents of a document are not the subject of inquiry, as in the
case where neither party disputed the contents of a service contract. (Nissan North EDSA v.
United Phil. Scout Agency, 20 April 2010).
➢ Nissan hired security guards through an agency. Later on, there was a dispute as to
the agency’s compliance with the service contract but not the contents of the
contract. It relates to the observance of the terms and conditions of the contract.

(2) The original cannot be obtained by local judicial processes or procedures.

- Contemplates two situations:
The 1st part refers to the situation where the original is in the custody of the adverse
party. Mere notice is sufficient to avail of secondary evidence.
The 2nd part refers to the situation where the original is in the custody of a third
person. Local judicial processes must be resorted to.
When the third person in custody of the original is outside the jurisdiction of the
court, as when he is in a foreign country, secondary evidence is admissible.
- If the third person is in a foreign country, the court does not have jurisdiction over
him and the party cannot resort to local judicial processes, secondary evidence is
now allowed.

United States v. Duffy, 454 F.2d 809, 812 (5th Cir. 1972).
 ● Duffy was charged with the crime of transporting a stolen vehicle to another state. A witness
testified that he received the stolen vehicle from defendant. An FBI officer testified thatmhe
examined the trunk of the stolen vehicle and found a white shirt imprinted with the laundry
mark “D-U-F”. >
● No violation of ODR. The terms of the “writing” were by no means central or critical to the
case vs Duffy. The crime charged was not possession of a certain article, where the failure to
produce the article might prejudice the defense. The shirt was collateral evidence of the
crime.

Foster-Holcomb Investment Co. v. Little Rock Publishing Co., 236 S.W. 597 (1922)

● The plaintiff newspaper sued the defendant partnership, claiming that the defendant agreed
to pay the plaintiff $50 in exchange for the plaintiff publishing an advertisement in its
newspaper and then failed to pay the $50 after the advertisement was published. >
● The plaintiff presented as witness its advertising editor who testified that the sum sued for
was due for advertising in a special issue of the Arkansas Democrat, a daily newspaper
published in the city of Little Rock. No violation of ODR since independently of newspaper,
witness knew fact of publication of ad. <

Sec. 3(c) R130 - NUMEROUS ACCOUNTS

- Under Sec. 3(c) R130, the proponent must lay a proper foundation for the admission of the
original documents on which the summary is based. (Republic v Mupas, 8 Sep 2015).
- The proponent must prove that the source documents being summarized are also
admissible if presented in court. In concrete terms, the source documents must be shown to
be original, and not secondary.
- Laying the foundation:
➢ Source documents are: AA
ADMISSIBLE and ACCESSIBLE.
- The contents of the numerous accounts or documents may be presented in the form of a
chart, summary, or calculation.
- The originals shall be available for examination or copying, or both, by the adverse party at a
reasonable time and place. The court may order that they be produced in court. (S7 R130,
2020 Rules on Evidence).

Foundation for introduction of secondary evidence (EUR). Proof of:

1. Execution or existence of the document.

2. Cause of its unavailability.
3. Reasonable diligence and good faith on the part of the proponent to produce original.
(Citibank v Teodoro, 23 Sep 03).
Secondary evidence (CRT) when original unavailable
1. Copy.*
- This is not a duplicate because duplicate has the same extent of admissibility with the
original. This may be a handwritten or a manual copy of the original. This may include the
exceptions on the Duplicate.
2. Recital in an authentic document.
- An authentic document may be a private document not necessarily a public document.
3. Testimony of a witness.
- Testimonial Evidence

FUN FACTS:
➢ The 2020 Rules on Evidence maintained the order of preference regarding secondary evidence
in S5 R130.
➢ Under the FRE, there are no “degrees” of secondary evidence. (U.S. v. Standing Soldier, 538 F.2d
196 [8th Cir. 1976]). (original and secondary evidence have the same degree or ranking - US)

Proponent must account for the nonproduction of all the originals - If there is more than 1
original
At issue was the admissibility of photocopies* of sales invoices/charge slips signed by the
Respondent. SC said the proponent must account for the non- production of all the originals before
resorting to secondary evidence.(Citibank v. Teodoro, 23 September 2003).
- FACTS: Teodoro procured a credit card and maxed out his credit line. Citibank presented
photocopies of its invoices where the originals were lost when it transferred to another
location.
- HELD: There are three originals - The one issued to the credit card holder; to the merchant
and the one in possession of the credit card company. Hence, Citibank must account for the
loss of all the originals.

BEST EVIDENCE RULE UNDER THE RULES ON ELECTRONIC EVIDENCE (REE)

➢ The Rules on Electronic Evidence (REE) took effect on 1 August 2001. It shall apply to all
civil actions and proceedings, as well as quasi-judicial and administrative cases. >
➢ Its coverage was extended to criminal actions and proceedings effective 14 October
2002. (A.M. No. 01-7-01-SC, dated 24 September 2002).
➢ The REE shall apply whenever an electronic document is used or offered in evidence.

Electronic document
(Sec. 1[g][h], Rule 2, REE)
➢ Information or the representation of information, data, figures, symbols or other modes of
written expression by which a right is established or an obligation extinguished, or by which
a fact may be proved, which is received, recorded, retrieved, produced, processed,
transmitted, or stored (3RP TSP) by electronic, optical, or similar means.
 ➢ A handwritten document which was scanned or photographed in a mobile phone are
electronic documents.
➢ Electronic documents are not limited to modes of written expressions - same rule with
documentary evidence.
➢ Read the law not in isolation but in conjunction with other laws.
➢ The term original includes the soft copy and the printouts or outputs (hard copy) readable by
sight or other means (S1 R4REE).

The holding in the old labor case of IBM Phils. v. NLRC, 13 April 1999, that computer printouts were
not originals because they were unsigned should be deemed overruled by S1 R4 REE.

5 categories of e-docs
1. Computer-stored/generated docs.
2. Website data.
3. Emails.
4. Social media communications & postings.
5. Text messages.
6. Recordings.
7. Photographs.

Notwithstanding the pronouncement of the SC in Nuez v. Cruz-Apao, 12 April 2005, text messages
are electronic documents since evidence thereof is recorded or retained. (Francis Ed. Lim, Point of
Law, Inquirer 27 April 2012)

Text messages are electronic documents which are covered by the best evidence rule. Hence,
testimony or transcript of their contents can be introduced provided the predicate is laid. (State v.
Espiritu, 176 P.3d 885 [Haw. 2008]).

PARITY RULE
- Electronic documents shall have the [same] legal effect, validity or enforceability as any
other document or legal writing. (§7, ECA) as per the Electronic Commerce Act.

Where law requires a doc to be in writing

- Where the law requires a document to be in writing, that requirement is met by an
electronic document if the said electronic document maintains its integrity and reliability
and can be authenticated so as to be usable for subsequent reference. (§7a, ECA)
- Examples:
1. The law requires that a donation of 5k or above of personal property be made in
writing. Can the written requirement here be made in text message? Ans. Yes.
because of the above provision of the ECA.
2. Can the acceptance be in text message Ans. Yes.
Formation & Validity of E-Doc
- Except as otherwise agreed by the parties, an offer, the acceptance of an offer and such other
elements required under existing laws for the formation of contracts may be expressed in,
demonstrated and proved by means of an E-Doc. >
- No contract shall be denied validity or enforceability on the sole ground that it is in the (1)
form of an ED, or that (2) any or all of the elements required under existing laws for the
formation of contracts is expressed, demonstrated and proved by means of an ED. (§16[1],
ECA).

Original Documents
- Where the law requires information to be presented or retained in its original form, that
requirement is met by an electronic data message or electronic document [if the integrity of
the information is shown by evidence and the info is capable of being displayed]. (§7, ECA)

Retention of E-Doc
- The requirement in any provision of law that certain documents be retained in their original
form is satisfied by retaining them in the form of an electronic document. (§13 ECA).

Functional Equivalence Rule

- For evidentiary purposes, an electronic document shall be the functional equivalent of a
written document under existing laws. (§7, ECA).

PAROL EVIDENCE RULE (S9 R130)

Parol evidence rule (PER)- Once an agreement has been reduced to writing, parol or extraneous
evidence (oral or written) of prior or contemporaneous terms and conditions may not be presented
by a party or his successor-in-interest to modify, explain, or add (MEA) to the terms of the written
Agreement.
➢ Prior or contemporaneous terms and conditions - prior or simultaneous
➢ Only bars the parties and successor in interest and does not bar those who are not parties
thereto.
➢ The basis of parol evidence is the theory of incorporation which means that if the parties to
a contract agreed to reduce it into writing, this written contract includes all that they have
agreed upon and those not included in the written contract are not agreed upon by the
parties. When the contract was reduced to writing, it was deemed as containing all the
terms agreed upon.

Illustration
- On 1 April 2021, seller and buyer executed a deed of absolute sale over a parcel of land in
which the price of the lot is stated at ₱1 million payable in full upon its execution.
- In a suit by seller against buyer to enforce the contract, may the buyer introduce in evidence
an email from seller dated 1 March 2021 in which the seller agreed that the price would be
payable in five annual installments of ₱200,000 each, beginning from the execution of the
deed of sale?
 - Ans. No. The parol evidence rule bars evidence of prior or contemporaneous terms or
conditions, whether oral or written, which would alter the terms of a written contract.
- The email dated 1 March 2021 is a prior written term which would alter the manner of
paying the price as stipulated in the contract. When the deed of sale was reduced to writing,
it was deemed as containing all the terms agreed upon.
The receipt is not the contract but the proof
of the contract.
➢ The PER applies only to written contracts. Thus, a receipt which is merely proof of payment
is not covered by the PER. Note however that a will is considered a written agreement for
purposes of the PER.

Distinctions of Parol Evidence Rule and Original Document Rule

1. This is narrower in scope than the Original Document Rule because this only applies to
written agreements or written contracts and not to all written documents like the Original
Document Rule. Receipt for instance is not covered by the PER as this is not a written
contract but a proof of payment. Exception: WILL Will is not a contract
2. The SC held that the parol evidence rule applies only to the parties to the contract and their
successors-in-interest and not to the defendants who are not parties to the deed of sale.
(Lechugas v. CA, 143SCRA 355). The Original Document Rule applies even to those who are
not party to the document/ contract, hence the non-parties cannot present secondary
evidence unless they lay the predicate. The parol evidence rule is contractual in nature such
that when the party is not a privy thereto, he is not bound by the PER.

Lechugas v. CA, 143SCRA 355

SHORT FACTS: Leoncia executed a Deed of Sale in favor of her sister Victoria, for Lot B but Leoncia
thought what she was selling was Lot A. Later on a third person possessed the land adverse to
Victoria. Victoria then sued this third person to recover possession. The third person presents as his
witness Leoncia. Victoria objected to Leoncia’s being a witness as this violates the Parol Evidence
Rule because: (1) Leoncia was a party to the Deed of Sale and (2) Leoncia’s argument that it was
really Lot A which she was selling is contrary to what was written in the Deed of Sale.

HELD: The proponent (third party) is not bound by the PER and not bound by the Deed of Sale
between Leoncia and Victoria and he can present parol evidence even if the party he will be
presenting is a party to the written agreement. The proponent is not a party to the contract. The
basis of the parol evidence rule is contractual in nature.

Pacres v. Ygoña, 5 May 2010)

A beneficiary under a stipulation pour autrui is considered a party to a written contract and is
bound by the parol evidence rule.
Article 11 of the NCC - Under the theory of relativity, contracts take effect only between the parties.
An exception to this rule is the stipulation pour autrui who is deemed a privy thereto.

SHORT FACTS:
A B C D E and F were co-owners of a parcel of land. A B C D sold the land to a buyer. E and F did not
join them in selling the property. Later on E and F sued the buyer to compel the latter to deliver to E
and F their TCTs arguing that it was part of the contract of sale between ABCD and the buyer.

E and F also argued that they can present parol evidence as they are not party to the contract of sale.

HELD. Assuming that the argument of E and F is true, that part of the contract was for the buyer to
take care of E and F’s TCTS, E and F will receive benefit from the contract which contemplates a
stipulation pour autrui under Article 1311 of the NCC. E and F are therefore parties to the contract
of sale and cannot present parol evidence as they are bound by the terms and conditions of written
contract or the Deed of Sale.

CATCH 22- hahahaha! Love this!

(Republic v. Gamir-Consuelo Diaz Heirs Assoc. Inc., 12 Nov 2018, Reyes, J.).

SHORT FACTS.
The government and a landowner, instead of entering into an expropriation proceedings, agreed to
make a voluntary sale of the landowners land in favor of the government. Later on, the landowner
sued the government for payment of interest on the ground that the government has entered into
the subject property before the full consideration is paid.

HELD:
There was nothing in the Deed of Sale between the parties that provides for the payment of interest.

The award of interest where the govt acquires private property through voluntary sale is not a
matter of law but of contract. Where the deed of sale between govt and landowner did not provide
for interest, the court cannot award interest.

The RTC is therefore wrong in awarding the payment of interest as this is a clear violation of the
PER.

EXCEPTIONS TO PAROL EVIDENCE RULE

- A party may present parol evidence to modify, explain, or add to the terms of the written
agreement if he puts in issue in his verified pleading:

Exceptions: (VISA)
 1. V – Validity of written agreement put in issue.
2. I – Intent of parties not expressed in written agreement.
3. S – Subsequent agreements, i.e, made after the execution of written agreement.
4. A – Ambiguity (latent/intrinsic), imperfection, mistake. (AIM).

➢ The pleading must be verified to avoid prevaricacion on the part of the pleader under pain
of perjury.

V – Validity of written agreement put in issue

- if the written contract is void then there is no written agreement in the first place.

I – Intent of parties not expressed in written agreement

- This exception cannot likely be invoked so not to defeat the PER.

S – Subsequent agreements, i.e, made after the execution of written agreement

- This is not supposed to be an exception because an exception means that you are
covered by the rule but by virtue of the exception, you were taken out of the rule.
Subsequent agreements in the first place are really not covered by the PER because
the rule only talks of prior or contemporaneous agreements.

A – Ambiguity (latent/intrinsic), imperfection, mistake. (AIM).

- Latent/intrinsic means that which is not apparent from the face of the document but
appears from some extraneous circumstance. The meaning could be discovered only
by extrinsic or parole evidence
- Patent/ extrinsic means that the vagueness is on the face of the document itself.
- Ambiguity vs. vagueness - Ambiguity means something the document has a meaning
but we do not know what the meaning is hence it becomes susceptible to different
interpretations.
- Vagueness means there is no meaning at all.
- Latent = refers to ambiguity (with meaning)
- Patent = refers to vagueness (no meaning)
- If it has a meaning (latent), the ambiguity can be corrected by a parol evidence. The
court can properly interpret the contract for the parties.
- If it has no meaning (patent), the vagueness cannot be corrected as the courts
cannot make a contract for the parties.

Illustration of LIA
“I bequeath my parcel of land in Bacoor, Cavite, to my cousin Jose Reyes.” Turns out there are two
Jose and two parcels of land.
- Here the Will has a meaning but the court may use parol evidence to discern the true
intention of the testator.
Patent or extrinsic ambiguity
“I bequeath a parcel of land to my cousin Jose Reyes.”
- This cannot be corrected by parol evidence.

Financial Bldg Corp v Rudlin Int’l Corp, 4 Oct 2010

SHORT FACTS:
Rudlin, an owner of a piece of land, entered into a contract with Financial for the latter to construct
Rudlin of a school building. Later on, Rudlin refused to pay Financial allegedly because the
specifications under their agreement were not met. Financial sued Rudlin to pay for its services
rendered in the amount of 6.9 million as stated in their written contract.

Rudlin Corp (owner) contends that although the price stated in the contract is ₱6.9 million, there
was an understanding that the true price was ₱6 million. The 6.9 in the contract is only for
Financial’s better chances of getting a loan from a bank. Therefore, Rudlin invoke the exception to
the PER under S10(b) R130 wherein the written agreement failed to express the true intent of the
parties.

HELD: S10(b) R130 available only where the written contract is so obscure or ambiguous that the
parties’ contractual intention cannot be understood from a mere reading of the instrument. There is
nothing obscure or ambiguous about the 6.9. Million pesos. If there is a deliberate or intentional concealment
of the truth, it is not covered.

Mistake
- Must be MIF
- Mistake may be the basis of changing the terms of the contract if the mistake is mutual; the
mistake is due to one of the fraud or inequitable conduct of one of the parties.

Conditions precedent are STILL covered by parol evidence rule

- Previous decision of SC: Parol evidence may be used to prove a condition precedent. For
example if the parties agreed that the buyer will build a right of way in favor of the seller.
This can be proved by parol evidence the reason being that if this suspensive condition is
not fulfilled there is no effective contract in the first place.
- However: (Ortañez v. Court of Appeals, 266 SCRA 561) Parol evidence of conditions
precedent may not be admitted.
- EXCEPTION: When the document refers to an agreement containing such a condition - Ito na
nga yung una niyang sinabe. It is not an exception kasi it was part of the written contract
nga.

Evidence to prove exception must be clear and convincing

 - To overcome the presumption that the written agreement contains all the terms of the
agreement, the parol evidence must be clear and convincing and of such sufficient
credibility as to overturn the written agreement.
- One of the rationale for the PER is to provide stability to written agreements. When the
parties reduce their agreements into writing, the court should respect that, otherwise
business transactions and other commercial undertakings will be prejudiced. T he parties
should not disavow their agreements.

(Phil. National Bank v. Cua, 18 April 2018, Martires, J.).

SHORT FACTS: James secured a loan from the bank. He defaulted from paying his obligations so he
was sued by the bank. He argued that the documents presented to prove his debts are just
pre-signed documents but he allegedly did not receive the proceeds of the loan.

HELD:In this case, James' uncorroborated allegation that the loan documents were merely
pre-signed for future loans is far from being the clear and convincing evidence necessary to defeat
the terms of the written instrument.

Inciong v CA, 257 SCRA 578

PER applies to written contracts be they private or public documents. The contract need not be
signed by two parties nor need it be bilateral.
- An example is a Promissory Note signed by the maker.
- An Absolute Deed of Sale signed by the seller, alone.

SPECIAL KINDS OF EVIDENCE

Ephemeral electronic communication
- Electronic forms of communication the evidence of which is not recorded or retained.
Examples: phone talks, text messages, chatroom sessions, streaming audio, streaming video.
(PTC SS) (S1[k] R2).
- Ephemeral means temporary or fleeting.
- Text messages are now recorded. This refers to old phones, perhaps.
- If recorded, the evidence becomes an electronic document.
- Text messages are ephemeral electronic communications. Once recorded or retained
however they become electronic documents and are subject to the best evidence rule. If
inadvertently deleted, secondary evidence may be presented - testimonial evidence of a
person with personal knowledge of the text messages. Something to look out for: HEARSAY
issue.

Pp v Enojas, 10 March 2014

The RTC properly admitted the text messages in conformity with the Court’s earlier Resolution
applying the Rules on Electronic Evidence to criminal actions. Text messages are to be proved by the
testimony of a person who was a party to the same or has personal knowledge of them.

Chain of custody of evidence in drugs cases

- The 2 witnesses required in Sec. 21 of RA 9165 must be present at the inventory which must
be done immediately after the arrest. “Calling them in” to the inventory at the police station
is not in compliance with Sec. 21. (See People v. Galuken, 17 July 2019, Caguioa, J.; People v.
Leaño, 28 July 2020, Lazaro-Javier, J.).

- RA 9165 does not require that DOJ representative be from the DOJ itself. The representative
could be from an attached agency, like the Bureau of Immigration. (People v. Tamil Selvi
Veloo, 4 March 2021, Peralta, C.J.).

QUALIFICATION OF WITNESSES
- Any person who can perceive and make known his perception to others is qualified to be a
witness. A witness does not need to be qualified beforehand as there is a presumption that
the witness is qualified to be such.
- There is a built in presumption that the witness is qualified. Therefore, an ordinary witness
should not be qualified. Only expert witnesses must be qualified.

AFP-RSBS v Republic, 20 Mar 2013

- There is no law requiring a witness to present authorization to testify from the party
presenting him. All that the Rules require is that a witness possess the qualification and
none of the disqualifications provided therein.

Cavili v. Fernando, 154 SCRA 610

- Party declared in default may still testify for a non-defaulted party.

Disqualification of witnesses (1989 Rules) MIM DIP

• Mental incapacity - abolished
• Immature children - abolished. The immaturity may go into the weight of the evidence but not to
disqualify the witness.
• Marriage (Marital Disqualification Rule)
• Death or Insanity. (Dead Man’s Statute and claim v. insane) - abolished. The Dead Man’s Statute is
dead
• Privileged Communication (MAP PP)

The 2020 Rules have abolished the following witness disqualifications:

1. Those who are mentally incapacitated and immature children. (S21[a] R130, 1989 Rules).
2. Claimants against the estate of a deceased person or against an insane person. (S23 R130, 1989
Rules).

Child witness
- Every child is presumed qualified to be a witness. However, the court may conduct a
competency examination if substantial doubts exist as to the child’s competency to testify.
(Sec. 6, Rule of Examination of a Child Witness [RECW]).
- The doubts must be substantial for the court to conduct a Competency Test.

Dead Man’s Rule/Statute

- A party having a claim or demand against the (1) estate of a deceased person or against the
(2) estate’s executor/administrator cannot testify as to the fact which happened before the
decedent’s death.
- The relevant facts happened before the decedent’s death, hence it is only proper to allow
this piece of evidence. Therefore, a person with claims against the estate of a deceased
person may now testify as to ante-mortem fact or even statements of the deceased when he
was still alive. This gives way to an exception to hearsay rule.
- The adverse party (estate of the deceased) may also present evidence to defend itself like
statements of the decedent. This is also an exception to the hearsay rule.

Claims against an insane person before he becomes insane - same rules with the Dead Man’s
Statute
- Sec. 23 of the 1989 Rules on Evidence has been abolished by S39 R130 of the 2020 Rules
which provides that a claimant can testify on an ante-litem fact or a fact occurring before the
person became of unsound mind, subject to the hearsay exception under S39 R130
regarding the statement of the deceased or person of unsound mind.

MARRIAGE DISQUALIFICATION RULE

- During the marriage, a spouse cannot testify against the other, except in a civil case by one
spouse against the other or a criminal case committed by one spouse against the other or
the other’s direct ascendants or descendants. (SAD) (Same exceptions with the
communication privilege)
- The 2020 Rules deleted the word “for” after testify. Hence, a husband cannot object if his
wife will testify for him.
- Marriage must be existing at the time of the offer of the testimony. Even if marriage
happened after the fact sought to be testified to.

Alvarez v Ramirez, 14 Oct 2005

- In a prosecution for arson, the wife could testify against her husband where they had been
separated de facto for 6 months. There is no more harmony, peace, and tranquility to be
preserved; thus, the reason for the MDR ceases.

Treat as pro hac vice

 1. Husband’s counsel failed to timely object to the offer of the wife’s testimony.
2. Husband knew that wife was inside when he set fire to his sis-in-law’s house.

Lezama v Rodriguez, 23 S 1166

Where the husband and wife were charged jointly, the wife cannot be called as an adverse party
witness by the plaintiff over the husband’s objection.

When to object
- The time to raise the MDR as an objection is when the spouse is called to the witness stand
and his/her testimony is offered. Otherwise, the objection is waived.

PRIVILEGED COMMUNICATION (MAP PP)

1. Marital Communication Privilege
2. Attorney-Client Privilege
3. Physician/Psychotherapist-Patient Privilege - bago
4. Priest’s/Minister’s Privilege
5. Public Officer’s Privilege

★ The privilege is based on relations of the parties involved.

★ The privilege is a matter of public interest to protect the confidentiality of the
communication involved due to the parties’ fiduciary relations.
★ Privileged means that any evidence as to the communication is inadmissible as evidence
(exclusionary rule)
★ Not only is the communication confidential but also privileged or excluded. Not all
confidential communications are privileged in the absence of an express exclusionary
clause.
★ To strengthen effective a protected relationship.
★ General Rule: The client must give its consent before the communication may be divulged.

Marital communication privilege

- The husband or wife cannot be examined without the consent of the other as to any
confidential communication received from the other during the marriage.
- Exception - except in a civil case by one spouse against the other or in a criminal case for a
crime committed by one spouse against the other or the latter’s direct ascendants or
descendants.
- Unlike the MDR, the MCP still holds even after the termination of the marriage since S24(a)
R130 states “during or after the marriage.” The reason for this is because the privilege seeks
not only to protect the institution of marriage but to protect the confidentiality of the
communication itself.
- Privileged matter is limited to confidential communications received during the marriage.
Thus, a wife can testify as to a husband’s dying declaration since the same is not
confidential. (U.S. v. Antipolo, 37 P 726).
Marital Disqualification Rule
1. Marriage should be existing at time of offer of Testimony
2. Total prohibition vs any testimony against spouse - Is this even to those not confidential??

Marital Communication Privilege

1. May be invoked even after termination of marriage
2. Applies only to confidential communications between the spouses - applies to restricted
communications which is confidential communications such that when the communication
was made in the presence of third parties the communication is not privileged.

Form Other Notes:

Marital Communication Privilege is applicable regardless of whether the spouses are parties or not
Marital Disqualification is applicable only when one or both spouses are parties

Attorney-Client Privilege
An attorney or person reasonably believed by the client to be licensed to engage in the practice of
law cannot, without the client’s consent, be examined as to any communication made by the client
to him or his advice given thereon in the course of, or with a view to, professional employment.

Nor can an attorney’s secretary, stenographer, or clerk, or other persons assisting the attorney be
examined without the consent of the client and his employer concerning any fact the knowledge of
which has been acquired in such capacity. (S24[b] R130 as amended by the 2020 Rules). (Extended
upto these people as per the 2020 Amendment/Rules)

- The reason for this rule is for the counsel to give effective legal advice to a client who made a
full disclosure of facts. The failure of the client to divulge everything will be a setback for the
broader administration of justice.
- If the client consents, the privileged is lost.
- This is a two-way street where the lawyer’s advices ar also privileged.
- in the course of or with a view to, professional employment = Even if the engagement of the
lawyer’s services was not consummated, the privileged remains.
- In the extended coverage: two consents are needed - that of the lawyer and the client

SCENARIO
Yes. The attorney-client privilege applies the moment legal advice is sought from an attorney. This
could not be in a formal setting. Compensation or agreement or promise of compensation is not an
element in the creation of an attorney- client relationship.

The privilege was found to attach to informal conversations at barbecues, rehearsal dinners, family
reunions, etc. where no money exchanged hands. The inquiry is only what the non lawyer's
reasonable expectations would have been. What counts is the reasonable expectation of the client.
The privilege shall apply to similar communications made to or received by the law student (has
completed 3rd year), acting for a recognized law school’s SC approved legal clinic. S3 R138-A (Law
Student Practice Rule).

Other persons assisting the attorney

Communication by client to accountant employed or hired by a tax law firm, which communication
was in relation to the matter for which the client retained the law firm, is privileged. (United States
v. Kovel, 296 F.2d 918 [2d Cir. 1961]).

Death of the client

- The attorney-client privilege subsists because the client is substituted by his estate or his
heirs. The estate and the heirs have interest in maintaining the privileged.

Exceptions to Attorney-Client Privilege

1. Furtherance of crime or fraud. If the services or advice of the lawyer were sought or
obtained to enable or aid anyone to commit or plan to commit what the client knew or
reasonably should have known to be a crime or fraud.
- This is a codification of the well-known rule that the privilege applies only to past,
not future crimes. The exception applies regardless whether the atty is aware of the
criminal or fraudulent purpose.
- Applies even if the lawyer is not privy to that future crime for as long as the client
has criminal ro fraudulent intent or when such intent is not apparent? To the
lawyer,e .g. The client posed the question in hypothetical form.

2. Claimants through the same deceased client as to a communication relevant to an issue

between parties who claim through the same deceased client, regardless of whether the
claims are by testate or intestate or by inter vivos transaction.
- Is this Dead man’s statute???
- Example: A and B brothers. Their father hired Atty. L to draft the will. Father died. B
wants to show that their father intended Lot B to belong to B. B can present Atty. L to
testify on father’s communication to him re will.

3. Breach of duty by lawyer or client as to a communication relevant to an issue of breach of

duty by the lawyer to his client or by the client to his lawyer.
- Dispute of reciprocal duties between client and the lawyer.
- Example: Lawyer is suing client for fees and he wants to show that matter is of
complexity to justify his fees and vice-versa.
- The communication must be relevant to the issue.

4. Document attested by the lawyer as to a communication relevant to an issue concerning an

attested document to which the lawyer is an attesting witness.
 - Example: Lawyer is attesting witness to a notarial will. He is presented by the
petitioner to show that the testator is of sound and disposing mind. Precisely why
he was an attesting witness. This should not really be an exception – Committee
Notes.
- Here, the lawyer did not act as counsel of the party.

5. v. Joint clients as to a communication relevant to a matter of common interest between two

or more clients if the communication was made by any of them to a lawyer retained or
consulted in common, when offered in an action between any of the clients, unless they have
expressly agreed otherwise. (S24[b] [i to v] R130, 2020 Rules on Evidence]
- Example: The lawyer was hired jointly by the lender and borrower to draft a loan &
mortgage agreement. Subsequently a dispute arose between them. Lender can
present the lawyer to testify that applying for financial rehabilitation is an event of
default.
- The lawyer was hired jointly by the joint clients.

Exception to attorney-client privilege under the CPR

Lawyer may reveal secrets when necessary to (1) collect fees or (2) defend (cd) himself, his
associates, or employees. (Rule 21.01(c), Code of Professional Responsibility).

Client’s identity not privileged

General rule is that the client’s identity is not privileged because without a client there can be no
attorney-client privilege. Hence, it is proper that the client be identified before the privilege is
invoked.

Exceptions (IL): When revelation of the client’s identity is prejudicial to the client
1. Where revelation of the identity would implicate the client for the very activity which he sought
the lawyer’s advice.
2. Where the government’s lawyers have no case vs. an atty’s client unless by revealing the client’s
identity, the same would furnish the only link that would form the chain of evidence necessary to
convict the client of a crime. (Regala v. Sandiganbayan, 262 SCRA 124 [1996]).

Regala v. Sandiganbayan, 262 SCRA 124 [1996]

SHORT FACTS: Allegedly Eduardo Cojuangco, one of the Marcos cronies was tasked to create
dummy corporations where the alleged ill-gotten wealth of Marcos will be concealed. Included as
defendants are the ACRA lawyers because they are the same stockholders of the dummy
corporations. The Prosecution moved for the issuance of subpoena to compel the ACCRA lawyers to
divulge the identity of their client.

HELD: Revealing Cojuangco’s identity would pun him down or implicate him that he has
participation in the formation of the corporations.

Privilege only to past crimes not future crimes

Privileged communication relates only to past crimes not intention to commit future crime. Cut-off
point is when the communication was made to the client, not when witness will testify. (People v.
Sandiganbayan, 275 SCRA 505 [1997]).

(People v. Sandiganbayan, 275 SCRA 505 [1997]).

SHORT FACTS: A Congressman was being charged with graft and corruption. He went to a lawyer
and they came up with the bright idea that they are going to forge a Certificate of Arraignment and
Dismissal. Their defense would be of double jeopardy. The People eventually filed a case of
falsification of documents. The prosecution moved that the lawyer be discharged to be a state
witness.

Sandiganbayan denied saying that the crime of falsification has already been committed thus
privileged and the lawyer may not be allowed to testify.

HELD: It is a future crime which is outside the protection of the attorney client privilege. When the
advice or communication was made, the crime had not yet been committed.

When a client is a corporation, to whom does the privilege extend?

- In the case of a corporate client, the privilege extends not only to senior management but to
middle mgt and rank-and-file employees as well. (Upjohn v. United States, 449 U.S. 383
[1981]). There were illegal incomes of Upjohn and illegal payments were made to foreign
public officials to grease the signing of documents. The US SC looks for the purpose of the
privilege.
- Prior to Upjohn - upto senior management (Control Test)

Sec. 5 of the NIRC, empowering the Commissioner to obtain from any person any information
regarding a taxpayer who is under audit or investigation, is not an exception to the attorney-client
privilege.
- IBP invoked the canon in statutory construction that special rule over a general rule and Sec.
5 of the NIRC is a general rule.

(Adelfa Properties v. Mendoza, 16 Oct 2019).

SHORT FACTS: a dispute arose between the corporation and its corporate counsel. The lawyer
threatened to divulge shenanigans committed by the corporation to the Senate Blue Ribbon
Committee.

HELD: A charge by the client against his lawyer of violating the attorney-client privilege must aver
specifically the confidential communication or advice breached by the lawyer. Mere general
accusation will not suffice. (Comment by the lecturer: It is also a catch 22 case where the SC is
saying you have to give up the privileged before you could invoke it.
PHYSICIAN/PSYCHOTHERAPIST- PATIENT PRIVILEGE
- A physician, psychotherapist or person reasonably believed by the patient to be authorized
to practice medicine or psychotherapy cannot in a civil case, without the patient’s consent,
be examined as to any confidential communication made for the purpose of diagnosis or
treatment of the patient’s physical, mental or emotional condition, including alcohol or drug
addiction, between the patient and his physician or psychotherapist.
- Currently, the Philippines has no licensing for psychotherapists. What is a Psychotherapist?
Strictly speaking, there is no such thing as a psychotherapist in the Philippines.
- The privilege can only be invoked in a civil case.

Extension of privilege
This privilege also applies to persons, including members of the patient’s family, who have
participated in the diagnosis or treatment of the patient under the direction of the physician or
psychotherapist. (S24[c] R130, 2020 Rules).
- Treatment is a multidisciplinary approach.
- Any communication disclosed to them is privileged.
- The family of the patient is also covered by the privilege.

Note that the requirement under the former rule that the information would “blacken the patient’s
reputation” has been deleted in the amended provision. Also the privilege has been extended to
psychotherapists and their patients. Dati ba, in a civil case lang din ang application??

Psychotherapist
a. A person licensed to practice medicine engaged in the diagnosis or treatment of a mental or
emotional condition, or
b. A person licensed as a psychologist by the government while similarly engaged. (S24[c]
R130).

For one to be considered a “psychotherapist,” a medical doctor needs only to be “licensed” to

practice medicine and does not need to be a psychiatrist, whereas a psychologist must be “licensed
by the government.” (Explanatory Note, p. 16).

IMPORTANT: Privilege applies only to civil cases. Law and order considerations override the
privilege in criminal cases. Lecturer: Because law and other considerations override the confidential
nature of the communication.

➢ The information must be necessary to the advice or treatment of the patient. Information
that the patient is having an extramarital affair is generally not privileged.
Attending psychiatrist could testify and give expert opinion where the same is based only on strictly
hypothetical questions and not on information obtained while attending to patient. (Lim v. CA, 214 S
273).
Chan v Chan, 24 July 2013
SHORT FACTS: The wife sued the husband for nullification of marriage. The wife asked the
husband’s doctors to produce documents to prove that the husband is undergoing drug
rehabilitation. The husband's doctors argued that the production of the subject documents will
violate the physician-patient privilege but the wife’s counsel counter argued that Rule 27 only apply
to testimonial evidence because the rule says the physician cannot TESTIFY.

HELD: In a marriage nullification case, R27 cannot be used to compel production of hospital and
medical records of the respondent (test results, diagnosis, advice and treatment) to show that he
was undergoing drug rehab. Disclosing them would be equivalent to compelling the physician to
testify.

In Jaffee v. Redmond, 518 U.S. 1 (1996), the U.S. Supreme Court extended the psychotherapist
privilege to confidential communications made to a licensed clinical social worker in the course of
psychotherapy.
- The cop accidentally shot the person he was to arrest.
- This ruling may not apply in a Philippine setting because there is no power vested in the
courts to extend the coverage of the privilege unlike in US federal courts.
- Besides, a clinical social worker is neither a licensed physician engaged in the treatment of a
mental or emotional condition, or a licensed psychologist.
- The instance this will be applied in a Ph setting is when the patient has a reasonable belief
that the person is engaged in the treatment of medicine or psychotherapy.
- It is opined that the ruling is not applicable here unless there was reasonable belief that the
social worker was authorized to practice psychotherapy.

➢ It is opined that psychological evaluations in marriage nullification privileges are not

covered by the privilege since the subject knows that the evaluation is to be used in court
and hence, no expectation of privacy. No reasonable expectation of privacy. compare this with the drug
rehabilitation records
➢ In a criminal case, may a psychologist be compelled to testify regarding confidential
communication obtained from the client while treating the client’s mental condition?
- Ans. It is submitted that the answer is no, because of Sec. 30 of R.A. No. 10029
(Philippine Psychology Act of 2009).
- As per the Psychologist/Psychometrician Client Privilege (RA 10029)
A psychologist or psychometrician cannot, without the consent of the client/patient, be
examined on any communication or information disclosed and/or acquired in the
course of giving psychological services to such client.
- For purposes of the 2022 Bar, stick with the Rules and do not cite/use RA 10029.
- The protection accorded herein shall extend to all pertinent records and shall be
available to the secretary, clerk, or other staff of the licensed psychologist or
psychometrician. Any evidence obtained in violation of this provision shall be
inadmissible for any purpose in any proceeding. (§30 R.A. No. 10029). >
 - Note that the privilege applies in any proceeding, be it civil, criminal or
administrative. Compare to the physician/psychotherapist-patient privilege which
applies only to civil cases.

PRIEST’S/MINISTER’S PRIVILEGE
- A minister, priest or person reasonably believed to be so cannot, without the consent of the
affected person, be examined as to any communication or confession made to or any
advice given by him or her, in his or her professional character, in the course of discipline
enjoined by the church to which the minister or priest belongs. (As amended)

PRIEST’S/MINISTER’S PRIVILEGE
- The privilege has been extended to a person reasonably believed to be a minister or priest.
- Privilege expanded to cover not only confessions but also other communications made
to the priest or minister and the latter’s advice thereon.

Public Officer’s Privilege

- A public officer cannot be examined during or after his tenure as to communications made
to him in official confidence, when the court finds that the public interest would suffer by
the disclosure. (S24(e) R130).
- when the court finds that the public interest would suffer by the disclosure = it will hamper
the public officer in the effective discharge of his public duties if communications held in
confidence will be disclosed.
- To encourage free and frank communication and advice to or by the public officers in order
that they may perform their official functions.
- For the benefit of the Public Officer himself and the public.

Executive Privilege, U.S v Nixon 418 U.S. 683 (1973) The Watergate Scandal
SHORT FACTS: President Nixon was running for a reelection as a President. He was a Republican.
During the convention of the Democrats in the Watergate Hotel, President Nixon ordered the hotel
to be bugged. The buggers/burglars were caught and imprisoned. The burglars said they will not
tell who sent them provided they will be paid. Then , Nixon convened a meeting of his counsels and
associates. The meeting was recorded without the knowledge of the counsels. One of the things
discussed in the meeting was the payment of the Watergate Burglars.

The illegal activity of President Nixon was discovered by the US Senate Blue Ribbon. Prosecutors
investigated and demanded President Nixon to produce the tapes. Nixon invoked executive
privilege.

HELD: Where there is an ongoing criminal investigation, a blanket invocation of executive privilege
by Pres. Nixon cannot entirely bar inspection of the tapes. An in-camera inspection may be
conducted for the court to evaluate the claim of executive privilege. When the matter is of
compelling nature like a criminal investigation, the executive privilege will not lie. Here, the US
Supreme Court held that it has to see the tapes to identify those portions covered by the privilege
and those which are not.

Because there are matters in the tape not covered by the privilege like the payment of the Watergate
Burglars, President Nixon resigned.

Executive Privilege/Presidential Communications Privilege

Neri v. SCAPO, 25 March 2008

SHORT FACTS: There was a plan then for the government to provide a national broadband via the
ZTE deal with China. It was alleged that there was no public bidding and corruption because ZTE
paid high ranking public officials.

Is it true that the President told you to fast track the ZTE deal?
Is it true that the President told you to approve the ZTE deal?

Neri invoked executive privilege. The Senate use the Watergate Scandal.

HELD: The privilege which protects the confidentiality of conversations that take place in the
President’s performance of his official duties. The privilege may be invoked not only by the
President but also by his close advisors under the “operational proximity” test. Unlike the Nixon
case, there was no ongoing criminal investigation hence a blanket invocation of the executive
privilege can be done.

The Supreme Court upheld Mr. Neri’s invocation of executive privilege stating that disclosure might
impair our diplomatic as well as economic relations with China. The SC distinguished this from U.S.
v. Nixon, where there was an ongoing criminal investigation into the Watergate break-in.

Presidential Communications Privilege

SHORT FACTS: President Arroyo formed the Committee on Trade & Related Matters to advise her of
tariff rates and matters related thereto. The Committee then recommended that tariff rates of
petroleum products be reduced. The local petroleum players contested this and filed against the
Committee asking the same to disclose minutes of their meetings.

HELD: The minutes of the meetings of the Committee on Trade & Related Matters (CTRM) are
privileged under the Presidential Communications Privilege. The privilege extends also to those
who assist and advise the President. (Sereno v. CTRM, 1 February 2016, Bersamin, J.). Public
interest will suffer and the Committee will be dissuaded from making free and frank discussions
and comments on the matter. There would be a chilling effect on the members of the body for a free
and frank discussions and comments on the matter.

Deliberative Process Privilege

 - The privilege protects from disclosure the deliberations forming part of a process by which
governmental decisions and policies are formulated. (DFA v. BCA International Corp., 29
June 2016, Carpio, J.).
- Same reasons as above: Public interest will suffer and the Committee will be dissuaded from
making free and frank discussions and comments on the matter.

DFA v. BCA International Corp., 29 June 2016, Carpio, J.

SHORT FACTS: DFA entered into a contract with BAC for the printing of passports. Later on, DFA
formed a Committee and the Committee recommended the rescission of the contract allegedly
because BCA violated some of the provisions of the MOA. BCA sued DFA and sought records of the
deliberations of the Committee.

HELD: The privilege does not end when an agency has adopted a definite proposition or when a
contract has been perfected or consummated; otherwise, the purpose of the privilege will be
defeated.

RTC Judge: Once a decision has been reached, the deliberative process privilege ceases. Sc
disagreed!

Extension of privileges
- The communication shall remain privileged, even in the hands of a third person who may
have obtained the information, provided that the original parties to the communication took
reasonable precaution to protect its confidentiality. (S24 R130, 2020 Rules).
- This applies to all forms of communication.
- Old Rule: If the communication falls into the hand of a third person, the privilege is lost
because the third person is not a party to the communication. Lecturer: This is an unwise
rule.
- reasonable precaution to protect its confidentiality = Lecturer: The original parties are not
grossly negligent.

TESTIMONIAL PRIVILEGES
➢ General Rule: A witness cannot refuse to testify. The court can compel him to testify through
the coercive process of subpoena.
➢ Exception: If the witness enjoys a privilege like Communication Privilege, then even the
court cannot compel him to testify if he doesn't want to.

Filial & Parental Privilege

- No person shall be compelled to testify against his parents, other direct ascendants, children
or other direct descendants, except when such testimony is indispensable in a crime against
that person or by one parent against the other. (S25 R130, 2020 Rules on Evidence).
 - Filial = No person can be compelled to testify against his parents or other direct ascendants
- Parental = No person can be compelled to testify against his children and other direct
descendants.
- Note that the privilege belongs to the witness, not to the person he is testifying against. It is
a privilege against testimonial compulsion. Example: The father committed a crime and the
eyewitness was the son. The son if he doesn't want to cannot be compelled to testify. But if
the son wants to testify, the father cannot compel him not to, as the privilege is enjoyed by
the son and not the father.

Exceptions:
- except when such testimony is indispensable in a crime:
1. against that person - he can be compelled to testify because the testimony is
indispensable in the crime committed against himself. If the prosecution will prove
the crime by some other evidence then the privilege will still apply.

Example: A father inflicted serious physical injuries on his son. May the son be
compelled to testify against his father? Ans. Yes, if testimony is indispensable.
Crimes are committed not only against the person but a disturbance of the society’s
tranquility. In real life, if the son doesn't want to testify and his testimony is the only
piece of evidence to prove the crime, the case will not be pursued by the
Prosecution.

2. or by one parent against the other -

➢ Stepmother may be compelled to testify against her stepdaughter. (pareho silang step)
- The parental privilege does not apply since the same covers only direct descendants, and a
stepdaughter is not a direct descendant of the stepmother. (Lee v. Court of Appeals, 13 July
2010).

Trade & Industrial Secrets Privilege

- Trade and industrial secrets recognized under our law and exempted from discovery and
compulsory disclosure. (Air Philippines Corp. v. Pennswell, Inc., 13 December 2007).
(case in IPL, also)

- A person cannot be compelled to testify about any trade secret, unless the non- disclosure
will conceal fraud or otherwise work injustice. When disclosure is directed, the court shall
take such protective measures as the interest of the owner of the trade secret and of the
parties and the furtherance of justice may require. (S26 R130).

- TRADE SECRET - A secret which gives an enterprise an advantage over other enterprises.
 ➢ Air Philippines has other remedies that it can avail itself to protect its rights and interests
and redress its grievances. (Hindi ito nabanggit ni lecturer)

HELD: Although there was no specific provision in the Rules of Evidence that trade secrets are
privileged, there are other statutory provisions from which inferences can be made that there is
such a privilege. E.g. RPC - Disclosure of Trade Secrets; Securities Regulation Code - An issuer which
proposes to sell securities has to come up with the information for the investing public but that
trade secrets shall not be disclosed. There is a provision in the rules re: trade secrets

Rule 507, Texas Rules of Evidence - A person has the privilege to refuse to disclose and to prevent
other persons from disclosing a trade secret owned by the person, unless the court finds that
nondisclosure will tend to conceal fraud or otherwise work injustice.

The privilege may be claimed by the owner of the trade secret or the owner’s agent or employee.

It is submitted that the holder of the privilege is not the witness per se but the owner of the trade
secret or the owner’s agent or employee. The holder of the privilege may prevent other persons
from disclosing the trade secret. Hence, the trade secrets privilege is strictly not speaking a
testimonial privilege.

Privilege against self-incrimination

Non-testimonial compulsion is prohibited if the evidence obtained is not material to the principal
cause of the arrest. (Dela Cruz v. People, 730 SCRA 655 [2014]). Here, Accused arrested for
extortion was compelled to undergo drug testing.

So even non-testimonial evidences may be privileged if they are not material to the principal
cause/ facts of the case.

OUT-OF-COURT STATEMENTS (HARI)

Statements made in another proceeding although such proceeding may be judicial.

1. HEARSAY
2. ADMISSIONS (PARTY & VICARIOUS) - These are extrajudicial admissions to be differentiated from
Admissions in Rule 129 which are made in the very same proceeding.
3. RES INTER ALIOS ACTA -if made in court, the statement is admissible and the witness is subject
to cross examination.
4.INDEPENDENTLY RELEVANT STATEMENTS - always out of court statements

**(PARTY & VICARIOUS) - admitter is the party himself or his agents. If made by his agents still
binding upon the party as a principal.
Generally,,
1. HEARSAY - inadmissible
2. ADMISSIONS - admissible
3. RES INTER ALIOS ACTA - inadmissible
4.INDEPENDENTLY RELEVANT STATEMENTS - admissible

PARTY ADMISSIONS
Admission - Rule 130
An act, statement, or omission (ASO) of a
party as to a relevant fact may be given in evidence against him. An admission need not be against
the party’s interest.

➢ Admissions are admissible

➢ Admissions are made by a party. If not made by a party, it could be a declaration against
interest.
➢ Admissions are given as evidence against the admitter. If given as evidence for him, this is
not an admission but a self-serving testimony which is inadmissible, to be more precise, the
statement is hearsay.
➢ An admission need not be against the party’s interest. Hence it is wrong to call it admission
against interest. Just refer to it as Admission or arty’s admission. What is sufficient is it is
given as evidence against the admitter.

The admissions under R130 are extrajudicial admissions. This should be distinguished from judicial
admissions under R129.
- Rule 130 - Extrajudicial Admissions
- Rule 129 - Judicial Admissions

EXTRAJUDICIAL ADMISSION
- Made outside of the proceedings in the same case.
- Must be offered in evidence in order to be considered by the court.
- May be contradicted by the admitter. It is made in a different context, hence he can explain
it.

JUDICIAL ADMISSION
- Made in the course of the proceedings in the same case.
- No need to offer in evidence since they already form part of the records.
- May not be contradicted by the admitter except by showing that the admission was made
through palpable mistake. (S4 R129)

Res inter alios acta

Under the rule of res inter alios acta, the ASO of a third person cannot be given in evidence against a
party. (S29 R130).
- Speak for yourself and not for me.
 - The admission of the third person will bind him if given as evidence against that third
person. But it will not bind a party.

Exception to Res Inter Alios Acta:

Those made by another or vicarious party where such party holds a close relation or sufficient
affinity with the party, such that the statement of the vicarious party can be ascribed to the party.
- E.g. agent, partner, co-conspirator
- Rationale: Sufficient affinity or close relation of the 3rd person with the adverse party.

Mercado v. People, 8 July 2015, Bersamin, J.

SHORT FACTS: The importer-consignee and his broker were prosecuted for making false import
declarations but the one who made the report is his broker.

ISSUE: Was it proper for the importer-consignee to be charged with the crime?

HELD: No. Importer-consignee may not be held criminally liable for false import declarations
prepared and signed by his customs broker under the principle of res inter alios acta. The broker is
not an agent of the consignee.

Res inter alios acta rule is applicable only to out-of-court statements. In-court statements may be
offered against a party.

ILLUSTRATION:
A B and C conspired to rob. After the robbery, A made a statement where he said that he, together
with B and C robbed the house and killed the victim. X, a witness was presented that A made the
statement.

Will the statement of A binding upon B and C?

Ans. No, because the statement was made out of court. Under the principle of res inter alios acta,
the statement of a third person will not bind the party. Neither was the statement of A be
considered a vicarious admission as A made the statement after the conspiracy and he was not
acting on behalf of B and C. The statement must have been made during the conspiracy.

What if A is discharged as a state witness? The principle of res inter alios acta will not bar the
statement of A as he will then give a statement in court (he will testify in court for the same
proceeding). Also, B and C will be given the opportunity to cross-examine A.

3 forms of party admission (ASO)

• Act
• Statement or declaration.
• Omission.

ACT
• Voluntary participation in the re- enactment of a crime conducted by the police.
• Flight from the scene of a crime.
• Changing one’s appearance or name.
• Transfer of property.
• Attempt to bribe witnesses.
Proverbs 28:1 – “The wicked flee when no one pursues, but the righteous are bold as a
lion.”

Some acts on public-policy grounds

not admissible as admission of liability (Sec. 28, Rule 130)
• Post-accident repairs.
• Withdrawn or unaccepted offers of plea
guilty.
• Offers to pay or the payment of medical
expenses. (Good Samaritan Rule)
• Offers of compromise in civil cases.

➢ If post accident repairs will not be done, the situation will only get worse.
➢ Plea bargaining, when proper, should be encouraged to declog the courts dockets.
➢ Sometimes the person may not be guilty but because of sympathy he’d offer to shoulder the
medical expenses.

In civil cases, an offer of compromise is not an admission of liability and is not admissible in
evidence against the offeror. Neither is evidence of conduct nor statements made in compromise
negotiations admissible, except evidence otherwise discoverable or offered for another purpose, such
as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort
to obstruct a criminal investigation or prosecution. (S28 R130, 2020 Rules on Evidence).

➢ To encourage people to compromise.

➢ A compromise does not happen in an instant but a series of negotiations hence the
statements made during these negotiations should not be considered as admission of
liability, too.

Exceptions:
“Otherwise discoverable”
A party cannot immunize a document or information by producing or disclosing it during
compromise negotiations.

Illustration
A party cannot testify, “My opponent told me in settlement talks that his company's trucks had
suffered 50 similar brake failures before the accident that hurt me.” However, that party would be
allowed to introduce evidence of the prior brake failures as long as he or she did not refer to the
settlement talks, even if it was the opponent’s disclosures settlement talks that gave the party the
idea of obtaining that evidence. (Best, Arthur. Examples & Explanations for Evidence [Examples &
Explanations Series] [p. 48].

“Offered for another purpose”

El Varadero de Manila, a ship repairer sued Insular Lumber, the shipowner, for value of ship repair
undertaken. Insular Lumber does not deny liability but says the bill was excessive. Parties’ offers of
price were admissible to prove estimated fair value of repair job. (El Varadero de Manila v. Insular
Lumber, 46 Phil. 176 [1924]).

Proving witness’s bias or prejudice

Plaintiff sued defendant for injuries, alleging that while a passenger in defendant’s car, the
defendant drove the car in a reckless manner and thus hit another car. Defendant produced the
driver of the other car to testify that plaintiff drove at a slow speed.

The Plaintiff can show that the defendant compromised with the other driver to show that witness’s
bias or prejudice. (See Fenberg v. Rosenthal, 109 N.E.2d 402).

Negativing a contention of undue delay

Plaintiff vs Defendant. Defendant raises affirmative defense of laches, saying undue delay on
plaintiff in filing case. Plaintiff can introduce evidence of compromise negotiations with defendant
to negative the contention.

Obstruct a criminal prosecution or investigation

In a civil fraud case, plaintiff can introduce evidence that the defendant compromised with another
victim to prevent filing of an estafa case.

ILLUSTRATION:
X committed estafa vs 2 victims (B &C). X compromised with B to prevent the filing of a criminal
case. C filed a civil fraud case against X. C can introduce evidence of the compromise to show X’s
effort to obstruct criminal investigation or prosecution for the estafa case.

An offer of compromise in a criminal case is an implied admission of guilt. Reason: A crime is a

transgression against the state. Hence, compromise is not encouraged.

Exceptions:
Quasi-offenses and those allowed by law to be compromised.
- Quasi-negligence = not in a strict sense a crime.
- Tax collection cases can be compromised.

The better rule is that an offer of marriage by the offender in a rape case is an admission of liability.
(People v.
Valdez, 29 May 1987). The law does not allow rape to be compromised but merely provides that
marriage extinguishes the crime.
It is opined that while adultery & concubinage may be pardoned, these are crimes which the law
does not allow to be compromised.

Husband’s offer of a diamond ring to wife in exchange for not filing concubinage charges is
admissible against him. (1986 Rem Bar Q10)

A plea of guilty later withdrawn or an unaccepted offer of a guilty plea to a lesser offense, as in plea
bargaining, is not admissible in evidence against the accused who made the plea or offer.

Also not admissible is any statement made in the course of plea bargaining with the prosecution,
which does not result in a plea of guilty or which results in a plea of guilty later withdrawn. (S28
R13, as amended in 2020 Rules).

People v. Yparraguirre, 268 SCRA 35, 41 (1997): “An offer to compromise does not require that a
criminal complaint be filed first before the offer can be received in evidence against the offeror.”

SMC v Kalalo, 13 June 2012

MS . Kalalo said she will just pay it in installments but San Miguel sued her instead. During trial, San
Miguel offered as evidence the letter of Ms. Kalalo where she was sought to compromise with the
corporation by paying her accountabilities in installments.

HELD:
The offer of compromise was made prior to the filing of the criminal complaint against her for a
violation of the Bouncing Checks Law.

SC held that the offer was clearly not made in the context of a criminal proceeding and cannot be
considered as an implied admission of guilt.

LECTURER: The Kalalo holding is arguable. It is opined that it should be treated as pro hac vice.
COMMENTS KO: Pwede pumasok as offered for another purpose. The letter is to prove how much
Ms. Kalalo is accountable for. Besides, she did not deny her liability.

Plea for forgiveness = This is analogous to an offer of compromise which is an implied

admission of guilt in criminal cases.
Accused’s act of pleading for his sister-in- law’s forgiveness may be considered as analogous to an
attempt to compromise, which can be received as an implied admission of guilt under S27 R130.

Admission by silence
An AS made in the presence of and within the hearing or observation of a party who remains silent
when the AS is such as naturally to call for comment or action if not true and when proper and
possible for the party to do so. (S33 R120).
Illustration
Prosecution of X for homicide.Prosecution witness testifies that bystander identified X as culprit
and X kept silent.
A prosecution witness who heard the statement of the bystander testified in court. The bystander
who made the statement was not presented in court. This is not hearsay as the admission of X after
hearing the testimony is an exception to hearsay. An admission is an exception to the hearsay rule.
Besides, the focus here is the admission of X and not the bystander who was not presented in court.

Prosecution of husband for parricide. Prosecution witness testified that the wife's nephew asked the
accused why he killed his wife and that the accused remained silent. (See People v. Español, 13
Feb 2009, Corona, J.).

Failure to respond to demand letter

This is not an implied admission of liability because there is no obligation to reply to a demand
letter.
(Phil. First Ins. Co. v. Wallem Phils.,
26 March 2009, Tinga, J.).

Taxpayer’s failure to refute receipt of FAN in reply to Preliminary Collection Letter is admission.
Admission by silence rule applied “to adverse statements in writing if the party was carrying on a
mutual correspondence with the declarant.”

In its reply to the CIR, South Entertainment never alleged that it did not receive the FAN. This
amounts to silence by admission that it indeed received the letter and as a matter of fact replied to
that letter raising exemptions and erroneous tax computations.
(CIR v. South Entertainment Gallery, 17 Mar 21, Leonen, J.).

No admission by silence if party has a right to remain silent (e.g., under custodial investigation).
(People v. Guillen, 25 Nov 2013).

Non-flight is not evidence of innocence. (Eduarte v. People, 16 April 2009). Flight is evidence of
guilt. Judge Bellosillo
Compare with People v. Credo, 22 July 2019, Carandang, J.:
Contrary to human experience for one who is guilty to remain at a crime scene. Accused’s non-flight,
when taken together with the numerous inconsistencies in the circumstantial evidence the
prosecution presented, provides the Court sufficient basis to acquit Daniel.
**There should be other circumstances aside from the act of non-flight.

VICARIOUS ADMISSIONS (J-CAPP)

Vicarious admissions, like direct admissions, are not covered by the hearsay rule. Hence, a witness
may testify regarding a vicarious admission even if the same was made out of court.
 J-CAPP (Joint debtor, joint interest or joint owner; Co-debtor, Co-conspirator; Agent and Partner;
and Privy.

Admission by co-partner/agent
The act or declaration of a partner or agent authorized by the party to make a statement concerning
the subject or within the scope of his authority and during the existence of the partnership or
agency, may be given in evidence against such party after the partnership or agency is shown by
evidence (independent evidence) other than such act or declaration. (S30 R130 as amended by
2020 Rules). (SEE)

An admission may be made directly - person himself or indirectly - JCAPP

**Independent evidence - other pieces of evidence other than the statement itself like Articles of
Partnership, etc.

Estrada v Desierto, 3 April 2001 Angara as Executive Secretary was the alter-ego and agent of
Erap. Angara’s statement is considered as vicarious admission of an agent.

It is submitted that S30 R130 applies also to employee’s statements within the scope of his
employment. “Speaking authority” is not required. (Bautista, Basic Evidence 196 [2004 ed.];
Martin v. Savage Truck Line, 121 F. Supp. 417 [D.D.C. 1954]).

In a case involving a theater guest who slipped and fell on a wet spot, the usher said to the janitor,
“Now you come in, when it’s too late, after someone falls. Why didn’t you come an hour ago when I
called you?” May plaintiff testify on the statement over a res inter alios acta objection?
This should Ans. No. The statement of the usher was made within the scope of his employment. The usher is
be "Yes" duty bound to monitor and supervise the janitors. Thus, the statement made by the usher as agent
can be ascribed to the theater owner (employer).

Even if the usher himself was not presented in court, the statement remains admissible as this
amounts to the admission by the theater owner of its liability. Admissions are an exception to the
rule on hearsay.

Grocery checker’s statement that “floor had too much wax” is not admissible against the employer
since it is not within scope of grocery checker’s employment. The checker is not in charge with the
supervision of the janitors who maintained the floors. (Mann v. Safeway Stores, 518 P.2d 1194).

Joint owner, joint debtor, jointly interested

The AS of a joint owner, joint debtor, or other person jointly interested with the party (DIO) (debt,
interest or obligation) authorized to make a statement concerning the subject or within the scope of
his authority and during the existence of the joint DIO may be given in evidence against such party
after the joint DIO is shown by evidence other than such AS.

Meaning of “joint”
Joint here should not be confused with joint in our law of oblicon. It means community of interest.
Thus, S29 R130 refers actually to a co-owner, solidary (not joint) debtor, and sureties/guarantors.

ILLUSTRATION:
Debtor plaintiff sues A B and C who are joint debtors.
- The statement of A is res inter alios acta with the obligations of B and C because they are
joint debtors and the word joint under the Rules refers to solidary debtors or solidarity..
However, if A is already presented in court as a witness, his statement will no longer be res
inter alios acta with that of B and C because A will be cross examined.

Example of person “jointly interested”

(The Learning Child Inc. v. Ayala Alabang Village Association, 7 July 2010, Leonardo-De
Castro, J).

SHORT FACTS. Learning Child bought a lot from Ayala Alabang. In the deed, one of the restrictions
was not to put up an elementary and up level school. Learning Child put a kindergarten then
elementary school. Ayala Village Association sued Learning Child for injunction as it violates the
contract.
One of the pieces of evidence that Learning Child presented is a statement of one of the officers of
Ayala Alabang Developer saying that the school is institutional and the undertaking is worthwhile.
The Association objected to such evidence on the ground of res inter alios acta.

HELD: The statements of Ayala Land Inc., (the developer) may be given in evidence against Ayala
Alabang Village Association (the homeowner’s association) in an action by the latter to enforce the
deed of restrictions over a lot in Ayala Alabang.

This is because ALI under the deed of restrictions may enforce the same together with AAVA and
thus ALI is a person jointly interested under S29 R130.

The Association and Developer has a joint interest over the property in question. Therefore the
statement of the developer is a vicarious admission that can be ascribed to he association.

(Narra Nickel Mining Corp. v. Redmont Consolidated Mines Corp., 21 April 2014, Velasco, J.).
SHORT FACTS: A B C are Filipino Corporations. D, a rival corporation sued ABC for the revocation of
their mining licenses because allegedly MBMI, a Canadian Corporation holds more than 40% equity
in ABC.
On appeal, CA upheld the revocation of the licenses of ABC and used as basis the annual statement
of account of MBMI showing that it owns 60% of the equity of ABC. ABC objected to the use of MBMI
annual report on the ground of res inter alios acta.

HELD: By entering into a joint venture, MBMI

has a joint interest with Corporations A, B, and C. Hence, MBMI’s statements (in annual report) in
relation to such joint venture are an exception to the res inter alios acta rule.

Privy
Where one derives title to property from another, the latter’s (the privy’s) act, declaration, or
omission, in relation to the property, is evidence against the former (titleholder) if done while the
privy was holding the title. (S32 R130).
- There are two parties here - the title holder (present owner) and the privy (predecessor,
testator vendor, etc.)

ILLUSTRATION:
A sells painting to B who sells to C. C sues B for selling a fake Amorsolo painting. C presents W as
witness. W testified that he heard A, while A was the owner of the painting, that it is fake.
- The statement of A, the privy is a vicarious admission on the part of B, the title holder and
can be used as evidence against the latter. B derived his title from A and A made the
statement while the holder of the painting.

Admission by co-conspirator
The act or declaration of a conspirator in furtherance of the conspiracy and during its existence,
(this is the trick, pag tapos na ang conspiracy then it will no longer be considered an admission) may
be given in evidence against the co-conspirator after the conspiracy is shown by evidence other
than such act or declaration. (S31 R130 of the 2020 Rules on Evidence). (FEE).

The amendment under the new rules consists of replacing “relating to” with “in furtherance of.”
“in furtherance”
A statement made in furtherance of a conspiracy is one intended to advance the objectives of the
conspiracy.
- Gossiping or bragging about the conspiracy = not binding on the co-conspirator because
these statements are not in furtherance of the conspiracy.

Example: In furtherance of
Illegal gun-dealer testified that A told him he wanted to buy a suitable gun which he was going to
use in a bank robbery planned by him and B and C.

Not in furtherance
Witness, gf of A, testified that A had told him that he and B and C had meticulously planned a bank
robbery and they would earn a lot of money after the heist.
- Mere bragging and will not advance the objectives of the conspiracy.
 - The statement of A is binding against him only.

Common requirements in vicarious admissions (SEE)

Take note of the common requirements that (1) the AS must be within the scope of the relationship,
(2) the AS must be made during the existence of the relationship, and
(3) the relationship must be proved by evidence other than the AS.
- In the case of admission by privies, however, No. 3 is not required.

- Requirement No. 2 is important and the subject of several bar exam questions, usually in
connection with co-conspirators.

Adoptive admission
Adoptive admission is where a party, by his words or conduct, voluntarily adopts or ratifies
another’s statement.

Example (Estrada v. Desierto)

Angara: Your options are a dignified exit or resignation.
Estrada: I would never leave my country.
- Important here is the context when the statements were made. During that time when
people are rallying for his ouster.

Confession
A confession is a declaration of an accused acknowledging his guilt of the offense charged, or of any
offense necessarily included therein. This is judicial confession. An accused’s (extrajudicial)
confession may be given in evidence against him. (S33 R130).
- Confession will not bind others - res inter alios acta. A confession is only admissible against
the confessant.
- Confession is higher than admission as a confessant confesses not only his participation or
authorship of the act but also his guilt.
- This refers to extrajudicial confessions.

Q: May an extrajudicial confession be given in evidence against a person other than the
confessant?

A GR: No, on the ground that a person may not be bound by the act or declaration of another.

EXCEPTION: Interlocking confession

When the confession is used as corroborative or circumstantial evidence as in the case of
interlocking confessions.

Interlocking confessions (ICIC)

Interlocking confessions are extrajudicial confessions independently made without collusion which
are identical with each other in their essential details and are corroborated by other evidence on
record are admissible as circumstantial evidence against the person implicated to show the
probability of the latter’s actual participation in the commission of the crime. (People v. Molleda, 86
SCRA 667).
- There is more than 1 extrajudicial confessions
- The confessions interlock with each other as to details hence becomes binding against the
other person/s.
- This is only considered as circumstantial evidence hence it has to be corroborated to convict
an accused.
- The interlocking confession by itself is not sufficient and has to be corroborated by another
circumstantial evidence.

Accused’s confession to a radio broadcaster was admissible in evidence. He was not entitled to the
Miranda rights as he was not under custodial investigation. (People v. Hipona, 18 February 2010).
- The media has to be responsible and inform the confessant that the confession to be made is
admissible against him.

Accused’s confession to a Bantay Bayan

made without the assistance of counsel is inadmissible in evidence. Inquiry made by a bantay bayan
has the color of a state-related function and entitles the suspect to his Miranda rights. (People v.
Lauga, 15 March 2010). >
- An inquiry made by a Bantay Bayan has a color of state related function. Hence, even though
the BB is not a a public official but because the BB has a demeanor of a public official, then
the confessant is afforded his Miranda Rights and treated as under custodial investigation.

On the other hand, the accused’s admissions before barangay tanod and barangay officials made in
public with other persons present were held admissible notwithstanding that the accused was not
afforded his Miranda rights. (People v. Sace, 5 April 2010).
- Wala pang mga pulis pero umamin na sa brgy. officials na nauna dumating sa locus criminis.
Under the circumstances, the police officers would be the ones to declare the Miranda
Rights.

Accused’s confession to a news reporter while in police station held admissible. (People v. Soria,
27 Aug 2020, Peralta, C.J.).

Previous Conduct As Evidence - Rule 130

Similar Acts Rule
Evidence that one did or did not do a certain thing at one time is not admissible to prove that he did
or did not do the same or similar thing at another time but it may be received to prove a specific
intent or knowledge, identity, plan, system, scheme, habit, custom or usage, and the like. (S35)
- Proof that the accused punched the victim in 2021 is not proof that he punched the victim in
2022.

Exception to SAR (PIKICHUS)

but it may be received to prove PIKICHUS
and the like. <

Illustration:
Q: The prosecution charges that on June 15, Andoy possessed an ounce of shabu with intent to sell.
Andoy admits the possession of the shabu but insists that the same was for his personal use.

May the prosecution introduce evidence that Andoy had sold shabu on May 1, May 15, and June 1
over an objection that such would violate the similar acts rule?

Intent &/or habit

A: Yes, since the evidence of the prior acts of selling would tend to prove Andoy’s intent to sell the
drugs he possessed on June 15. It could also be used to prove that Andoy has the habit or custom of
selling drugs.

Boston Bank v Manalo, 9 Feb 2006

SHORT FACTS. The developer sued the buyer to pay for the lots bought. The buyer countered that it
was given 120-month to pay. The buyer introduced as evidence three other contracts of the
developer where the developer grants the two 120-month and the other 180-month to pay.

ISSUE. Was the evidence sufficient to warrant a habit/custom or practice on the part of the
developer to grant a 120-month to pay?

HELD: No.
The 3 contracts to sell were not sufficient to prove a habit or custom on the part of XEI to grant the
120-month term to all its lot buyers. The 3 contracts did not meet the key criteria of uniformity and
sample adequacy of response. (US)
- No uniformity = 2 are for 120 and other other is 180.
- 3 contracts will not meet the required sample size.
- No other standards explained by the SC.

RAPE SHIELD RULE

In prosecutions for rape, evidence of complainant’s past sexual conduct, opinion thereof, or of
his/her reputation (PascOR) inadmissible unless court finds that such evidence is material &
relevant to the case.

Q: Prosecution for rape where accused raises the defense of consent. May accused introduce
evidence that complainant had extramarital sex with other men?

A: No. Evidence of a rape complainant’s past sexual conduct is inadmissible unless found by the
court to be relevant to the case. Here, the sexual acts with men other than the accused is irrelevant.
(U.S. v. Kasto, 584 F.2d
268 [1978])
Ratio decidendi
“Even an immoral woman has some freedom of selection.”

Rule of thumb in Rape Shield Rule

EVIDENCE OF PAST SEXUAL CONDUCT:
Inadmissible unless:
a. The past sexual conduct was with accused himself; or
b. The past sexual conduct was with others and those others or that another was a source of
semen, injury, or other physical evidence.
OPINION & REPUTATION OF THE WOMAN is inadmissible.
- Hindi rin ito absolute rule, eee

Hearsay (OTA)
An out-of-court statement offered in evidence for the truth of the fact asserted therein. (Miro v. Vda
de Herederos, 20 Nov 2013; see Federal Rules of Evidence 801[c]).

General Rule: hearsay is inadmissible in evidence unless it is excepted.

Traditional definition of hearsay

An out-of-court statement made by a person who is not presented as a witness and which statement
is offered to prove the truth of the fact asserted therein. (DST Movers Corp. v. People’s Gen. Ins.
Corp., 13 January 2016, Leonen,J.)

Hearsay is a statement other than one made by the declarant while testifying at a trial or hearing,
offered to prove the truth of the facts asserted therein (TOFA). (S37 R130, 2020 Rules on Evidence)

HEARSAY (Restatement)
Hearsay is an out-of-court statement offered to prove the truth of the facts asserted therein.

Hearsay Rule
Hearsay is inadmissible in evidence unless it falls within any of the exceptions to the hearsay rule.

No longer holds water: An affidavit is hearsay if the affiant is not presented in court. What matters
now is if the statement is made out of court or not.

Hearsay is offered to prove TOFA

- When a statement is offered to prove the truth of the fact asserted in a statement/therein,
that is substantive evidence.

LOOKOUT IF THERE IS A DECLARANT, THEN THE HEARSAY RULE MAY BE IMPLICATED:

 a. Witness said he saw the defendant cross the intersection when the red light was on. = No
declarant. The witness is testifying based on his personal knowledge. The Hearsay Rule is
not implicated. Admissible.
b. Witness said he heard David who said that the defendant crossed the intersection when the
red light was on. = There is a declarant here, David. The Hearsay Rule is implicated.
Inadmissible.
c. The witness testified that A told him that the defendant crossed the intersection when the
red light was on. There is a declarant here, the defendant himself. The Hearsay Rule may be
implicated, depending on whether the statement is being offered against the declarant or for
the declarant.
- If against the defendant-declarant = This is treated as an admission
- If for the defendant-declarant = This is treated as a self -serving statement, to be
more precise, hearsay.

Rationale for the Hearsay Rule (COD)

1. The lack of opportunity to cross- examine the out-of-court declarant.
- Under the modern view, the right to cross examine should be made at the very time the
declarant made the statement (S 37, R130). Even if the declarant is later on presented in
court, the statement remains hearsay when there was no opportunity to cross examine him
at the very moment the statement is made.

2. The declarant’s statement is not under oath.

3. No opportunity for the court to observe the demeanor of the declarant.

Self-serving statements
Self-serving statements are those made by a party out of court advocating his own interest. They do
not include a party’s testimony in court as a witness.

The proper ground for objecting to self- serving statements is not that they are self-serving but that
they are hearsay. Statements made by a party in court favoring his interest may not be objected to as
self-serving since the party may be cross-examined. (People v. Omictin, 26
July 2010).

Illustration
Defendant’s witness will testify that he heard the defendant say that he was driving Carefully. Not an
admission since not being offered against the defendant.

4-step process in hearsay analysis (DAPE)

1. Look out for the declarant (the one who made the out-of-court statement).
- The declaration could be in written form like an Affidavit

2. Check if the declarant’s statement is an admission or assertive.

 - Admissions are admissible in evidence, being an exception to hearsay rule.
- Assertive: Latter discussion

3. Determine the purpose for which the declarant’s statement is offered.

- Check if it is an Independently relevant statement, which means that the statement is not
being offered to prove the truth of the facts asserted therein but to prove something else like
the belief, state of mind, intent or legal effect of the statement.
- Independently relevant statement is not hearsay and therefore incorrect to say that it is an
exception to hearsay. It is independent of hearsay and admissible evidence.

4. Check if it falls within any of the hearsay exceptions.

- Admissions, direct or vicarious are excluded from the hearsay rule because the adverse
party or the admitter cannot invoke that he did not have the chance to cross examine
himself, which is the very basis of hearsay. Besides, to invoke so would be absurd too.

Admission excluded from the hearsay rule

The reason is that a party cannot complain that he did not have an opportunity to cross-examine
himself. (Estrada v. Desierto, 3 April 2001).

In an oral defamation case, prosecution witness’s testimony that he heard the accused call the
offended party a prostitute is excluded from hearsay since it is an admission.
- This is not hearsay because it is a statement of the accused himself and being offered as
evidence against him, therefore this is an admission.
- This is an independently relevant statement which is offered to prove the mere fact of
utterance and not whether the offended party is prostitute. The fact of utterance
consummates the crime of oral defamation. An independently relevant statement is not
relevant to that truth.

Hearsay
There must be a statement; otherwise the hearsay rule will not be implicated.

A statement is (1) an oral or written assertion or (2) a non-verbal conduct of a person, if it is

intended by him as an assertion. (S37, R130)

A STATEMENT MUST BE ASSERTIVE

“Assertion” is an intended communication of a fact or belief.
- There must be an intention to communicate a fact or a belief.

EXAMPLES OF ASSERTIVE NONVERBAL CONDUCT WHICH ARE HEARSAY

1. In a police line-up, the declarant points his finger at the accused.

Q: Can the police officer who witnessed the line up testify that he saw the declarant point his finger
to the accused?
A: No. The act of pointing by the declarant to the accused amounts to a statement. When he did so,
it’s as if he was saying that the accused shot the victim. This is a non-verbal assertion of the
declarant or a statement made by the declarant which is hearsay in so far as the police is concerned.

2. Declarant nods his head in response to a question.

Q: Is he the one who assaulted you? And the victim nodded her head.

A: Such assertion of the victim is hearsay as to the officer who asked her the question.

NON-ASSERTIVE NONVERBAL CONDUCT IS NOT HEARSAY

= Here, there is no intention to make a statement of a fact or belief
1. Ship captain inspects the ship and then takes wife and daughter aboard the ship.
- The ship captain is not asserting a statement. Therefore, a witness to testify on this matter
may be presented by the shipping company to prove that the ship is seaworthy as no ship
captain in his right mind will take his family abroad upon knowing that the ship is not
seaworthy.
-
2. Pedestrian moans after being hit by a car.
- The pedestrian was not communicating anything when he moaned. As the pedestrian is not
a declarant, a witness may testify to this fact and such testimony is not hearsay.

Non-assertive verbal statement

A witness occupying the adjoining room testified that he heard the victim saying “Good morning,
Igor,”. This can be introduced as evidence by the prosecution to prove that Igor was the murderer
because this is not hearsay. Although there was a verbal statement made, it was not assertive. The
declarant was not making an assertion of fact or belief. He is simply saying a greeting.

Implied assertion doctrine

An implied assertion (inference) which is derived from an out-of-court verbal utterance or
nonverbal conduct is hearsay.
- Used as an inference but not to prove the truth of the fact stated therein.
- As such, this is not hearsay, therefore admissible in evidence.
- Remember: Hearsay is offered to prove TOFA.

Implied assertion doctrine abandoned by S37 (1st par.) R130 of the 2020 Rules on Evidence.
It is now non-hearsay. Hearsay is defined as an out-of-court statement “offered to prove the truth of
the facts asserted therein.”

“Put one grand on Kentucky Summer!” admissible to prove implied assertion or inference that the
accused engaged in illegal gambling. (U.S. v. Zenni, 492 F.Supp. 464).
“You made me come twice, Boris.” Admissible to prove that woman had extramarital sex with Boris.
- The statement can be introduced in evidence as an inference that the woman is engaged in
extramarital sex; that they had sex. The testimony is not intended to prove that the woman
came twice.

Independently Relevant Statement (IRS) (Favorite Bar Q)

- An out-of-court statement which is relevant not for the truth of a matter asserted therein
but for something else, e.g., state of mind, intent, belief, the mere fact of utterance, or
legal effect. (SIBUL) (knowledge)

Take note
- IRS is not an exception to the hearsay rule because in the first place it is not hearsay.

Example of IRS
- Deceased testator’s statement that there were Martians in his backyard is admissible in a
probate proceeding to prove that the testator was not of sound and disposing mind.
- It is not relevant of its truth. The statement is merely to prove that the testator is bot of
sound mind.

Rule of Thumb to spot IRS

- Would the statement have probative value if it was false?

Illustrative problem
A sued D for recovery of possession of land. D alleged in his answer that his father, from whom he
had inherited the land, was the owner and assuming that his father was not the owner, his father
was a possessor in good faith and thus had a right of retention.

a) D offers the testimony of W to prove that his father owned the land. W will testify that he heard
D’s father say that he was the landowner. Is W’s testimony admissible over relevant objection?

ANS: No, W’s testimony is not admissible over an objection that it is hearsay. Under the Law on
Evidence, hearsay, which is an out-of-court statement offered for the truth of the matter asserted
therein, is inadmissible.

Here, the purpose of offering the statement was to prove the truth of the matter asserted therein,
that is, that D’s father was the owner of the land. Hence, the same is hearsay and thus inadmissible
upon a hearsay objection.

b) Will your answer be the same if the testimony of W is offered to prove that D’s father was a
possessor-in-good faith?
ANS: No, my answer would not be the same, that is, X’s testimony would be admissible
notwithstanding a hearsay objection.
Under the Law on Evidence, an IRS which includes one offered to prove the declarant’s belief is not
covered by the hearsay rule and is thus admissible.

Here, the purpose of offering the statement was not to prove the truth of the matter asserted therein
but to prove the belief of D’s father that he was the landowner and thus a possessor-in-good faith.

Hence, the statement is independently relevant and thus admissible despite a hearsay objection.

MULTIPLE ADMISSIBILITY - Here, D, the proponent has to offer the evidence (testimony of W) for
the purposes of proving (1) that his father is the owner of the land and (2) that because he believes
himself to be the owner of the land his possession thereof was made in good faith.

If the testimony is merely offered to prove ownership but not the fact of possession in good faith,
the evidence will not be admitted for the second purpose. REMEMBER: Evidence is only admitted
for the purpose it is being offered.

2010 BAR Q: Mabini was charged with the murder of Emilio, the lover of his wife Gregoria.

To prove the qualifying circumstance of evident premeditation, the prosecution introduced a text
message, which Gregoria had sent to Emilio on the eve of his death, reading:
"Honey, pa2tayin u ni Mabini. Mtgal n nyang plano i2. Mg ingat u bka ma tsugi k."

Can Mabini object to the offer in evidence of the text message on the ground of hearsay?

Suggested Answer: No. Mabini cannot object to the offer in evidence of the text message on the
ground of hearsay.

The Supreme Court has held that statements showing the declarant’s state of mind, such as her
knowledge or belief, are considered as independently relevant statements and thus not hearsay.

Here, the text message showed the declarant Gregoria’s knowledge or belief that Mabini had long
planned to kill Emilio.

Hence, the same is not hearsay but an independently relevant evidence which is admissible in
evidence. Thus, Mabini cannot object to the text message on the ground of hearsay.

Statement of intent
In prosecution for hazing, statement of neophyte that he was going to initiation rites of a fraternity
is an independently relevant statement. Circumstantial evidence of fact in issue.
- Although there is an out of court statement of the neophyte, this statement shows his intent
to go to the initiation rites. Jurisprudence held that such statement showing his intent is
circumstantial evidence that he indeed went to the initiation rites.
 - Since this is only circumstantial evidence it has to be corroborated by other type of evidence
e.g. shirt of the neophyte was found in the place of initiation, etc.

Survey evidence in infringement cases is admissible to show state of mind of the person being
surveyed, e.g., confusion in infringement cases.

S9 R18, 2020 IPR RULES

SEC. 9. Market Survey. - A market survey is a scientific market or consumer survey which a party
may offer in evidence to prove (a) the primary significance of a mark to the relevant public
including its distinctiveness, its descriptive or generic status, its strength or well-known status
and/or (b) likelihood of confusion.
- The person being surveyed need not be presented in court because the survey itself is an
independently relevant statement of the likelihood of confusion.
- Independently relevant statement: LECTURER: In order for it to have probative value, the
statement may be / is false.

Test if Psychologist’s testimony is hearsay or not in a marriage nullification case

The psychologist was not able to personally examine the respondent and thus the psychological
report was based only on the narration of the petitioner. Hence, the psychologist’s report and
testimony were hearsay. (Paz v. Paz, 18 February 2010)

However, the psychologist’s testimony and report are not hearsay if these were based not solely on
the psychologist’s interview of the petitioner but of other persons, such as the respondent’s own
son and his siblings. (Camacho-Reyes v. Reyes, 18 August 2010, Tani-De la Fuente v. De la Fuente, 8
March 2017).

FRE 703 allows an expert witness to “base an opinion on facts or data in the case that the expert
has been made aware of or personally observed.”

If the facts or data are the type that experts in the same field would reasonably rely on to form
similar opinions, the facts or data do not have to be admissible in order for the witness’s opinion to
be admissible. (Id.)

Hearsay admissible in writ of amparo cases - SPECIAL RULE

In writ of amparo cases, hearsay can be admitted if it satisfies the basic minimum test of relevance
and consistency with other evidence. (Razon v. Tagitis, 3 December 2009)
- By force of necessity, hearsay is admissible in writ of amparo cases because these acts are
not committed in the open.
- But the evidence has to be corroborated by other evidence.

Whistleblowers’ accounts even if hearsay is admissible in preliminary investigation to establish

probable cause. (Reyes v. Sandiganbayan, 19 August 2020, Reyes, J.)
 - In Preliminary investigation, those violating res inter alios acta and hearsay are admissible
because in this stage, the guilt of the accused is not being proven but merely to establish
probable cause.

Identification in a police line-up

NBI agent’s testimony that Zaldy had pointed out the accused in a police lineup as one of the
perpetrators of the robbery and killing was held unreliable where Zaldy did not testify in court. (Pp
v Cachuela, 10 June 2013).
- This is a non-verbal, assertive statement hence the testimony is also hearsay.
- The act of pointing to a person in a lineup is a statement (act or declaration): it’s like saying,
“He’s the killer!” Miro v Vda de Erederos, 20 Nov 13

The affiants’ failure to appear and to identify their affidavits in the investigation before the OMB and
the grave nature of the charges (grave misconduct) led the SC to treat their affidavits as
inadmissible under the hearsay rule.

Medical certificate that plaintiff suffered whiplash is hearsay [if the physician who executed it
not presented in court]. (Dela Llana v Biong, 4 Dec 2013).

A medical report is hearsay [when the doctor who prepared the same did not testify in court], even
if the defense counsel agreed to the stipulation that the rape victim submitted herself to a medical
examination. (Pp v Rondina, 30 June 2014).
- The defense counsel only agreed that the victim submit herself to medical examination but
the counsel did not agree or stipulate as to the contents of the medical certificate.
- LECTURER: Relate this to prior consistent statement of the declarant which is considered
hearsay: If the doctor is presented in court, his testimony is not hearsay because the
declarant herself was already in court, therefore his statements will no longer be out of
court. Nonetheless, the medical certificate remains hearsay despite presentation in court of
the doctor. (FRE: bewildering and perplexing)

Hearsay
• Affidavit of doctor absolving another doctor from professional negligence is hearsay [where the
affiant was not presented in court]. (Rosit v. Davao Doctors Hospital, 7 December 2015).

Hearsay
• Complaint-affidavit is hearsay [where affiant did not testify and was not subject to
cross-examination on contents thereof]. (Ibañez v. People, 9 Oct 2019, Bersamin, C.J.).
- A complaint affidavit in preliminary investigation is hearsay. This alone cannot be presented
in court. The affiant himself has to be presented in accordance with the Constitutional
guarantee that the accused should be given the right to confront the witnesses..
- REMEMBER: The rule of evidence on hearsay has Constitutional implications because the
accused has the right to confront the witnesses face to face.
- There is no right of cross examination in preliminary investigation.
Affidavit of PNB’s New York Bank Officer is hearsay. (PNB v Gumabon, 25 July 2016, Brion, J.).
- The PNB should have presented the deposition if the deponent is outside the Ph.
- Under Sec. 23, 4c - instances when the deposition may be introduced as substantive
evidence to prove the fact asserted therein. This may constitute as the testimony of the
deponent in lieu with his direct testimony.
- Thus, Sec. 23 4c is an exception to the hearsay rule.

IMPORTANCE OF AFFIDAVIT
- This is important in declaring a witness hostile.
- Sinabe rin ito ni Judge Cacha: In order for the counsel not to be tricked by the witness, let
the witness execute an affidavit under pain of perjury.

In petition for issuance of new owner’s duplicate certificate of title, affidavit of loss by registered
owner is hearsay. Second paragraph of Sec. 109 of PD 1529 contemplates a full-blown hearing. The
affiant should have been presented in court. (Republic v. Ciruelas, 17 Feb 2021, Delos Santos, J.).
- This is not a reconstitution case but simply a replacement of the owner’s duplicate
certificate of title.
- This requires a full blown hearing and the affiant/ registered owner must still be presented
in court regarding the circumstances of the loss.

EXCEPTIONS TO THE HEARSAY RULE

- These evidence are still hearsay but because they are excepted, they become admissible.
- They become admissible because of their trustworthiness. Lecturer: because of their
reliability or necessity
- Exceptions to the hearsay rule are still hearsay but are admissible for reasons of necessity
and/or reliability.

Two main groups

- Exceptions may be grouped into two:
1. Those where there is a requirement that the declarant is dead or unavailable to testify (DU
requirement) and - The proponent has to prove that the declarant is dead or unavailable to testify.
2. Those where there is no such requirement.

DU REQUIRED - 3D PCF
1. Dying declaration
2. Declaration of the decedent, insane person
3. Declaration against interest
4. Pedigree
5. Former testimony or deposition
6. Child declaration of act or attempted act of child abuse

DU NOT REQUIRED - 2RFC BLOC

 1. Res gestae
2. Residual exception
3. Family reputation
4. Common reputation
5. Business records - used to be Business entries
6. Learned treatises
7. Official records
8. Commercial publications

DEATH/UNAVAILABILITY OF DECLARANT REQUIRED (3D PCF)

1. Dying Declaration - Applies to both criminal and civil cases. (Favorite Bar Q)

Requirements: DICC
1. Declarant should die.
2. Death is the subject of inquiry in the case.
3. Declarant conscious of impending death.
4. Declaration relates to cause and circumstances surrounding declarant’s death.
** A person who is about to face his maker would not face him after having lied.

The declarant must otherwise be competent - This is a requirement to all hearsay exceptions.

The test is: if the declarant lives, would he be a competent witness? E.g., if the declaration is hearsay,
not admissible even if it is a dying declaration.
Example: Pedro told me that it was Jose who killed me.
- This is double hearsay. Here, even if the guy survives, his testimony remains hearsay
because he is reporting the statement of Pedro.
- Therefore, the guy is not a competent witness.

Interface with res gestae

A statement which is not admissible as a dying declaration may usually be admitted as part of the
res gestae (excited utterance) if it satisfies the requirements thereof.

ANTE-MORTEM STATEMENTS CAN EITHER BE OFFERED AS:

1. Dying declaration or
2. Res gestae
**Apply multiple admissibility.
** If the Bar question only asks about dying declaration, do not discuss the res gestae and vice versa.

Explicit statement of consciousness of impending death not required

The degree and seriousness of declarant’s wounds is sufficient to show that he was conscious of his
dying condition. (Marturillas v. People, 18 Apr 06).
There is no need for the declarant to utter a single word. The degree and seriousness of his injuries
are deemed sufficient of his consciousness of his impending death.
Bloodied condition of a stab victim indicates that victim must have been fully aware that he was on
the brink of death. (People v. Serenas, 29 June 2010).

The fact that the victim had 9 stab wounds which caused his death within the next 48 hours
indicates that the victim was conscious of his impending death. (People v. Tabarnero, 24 February
2010).
- The declarant does not have to die immediately after his utterance.

People v. Rarugal, 16 January 2013

It is of no moment that the victim died seven days from the stabbing incident and after receiving
adequate care and treatment, because the apparent proximate cause of his death, the punctures in
his lungs, was a consequence of the appellant's stabbing him in the chest.

At the time the victim made his declaration, his breathing labored, he realized that he could die after
having been stabbed twice in the chest.

Declaration must be about the cause and circumstances surrounding his own death.

Dying declaration as circumstantial evidence

Although the dying declaration failed to directly implicate the accused, it could be used as
circumstantial evidence against him. (People v. Suarez, 19 Oct 2016, Mendoza, J.)
- Taken in consideration with other evidence, the dying declaration is admissible although it
did not directly implicate the accused.

2. Statement of decedent or statement of person of unsound mind (S39 R130) - California

Civil Code
Where a claimant testifies against the estate of a decedent or against an insane person on an
ante-mortem fact or a fact occurring before the person became insane, the ante-mortem statement
of the decedent or the statement of the person before his insanity may be received in evidence if:

P RTC
1. Personal knowledge of the decedent or declarant
2. Recent perception of the declaration
3. Recollection was clear - I think, maybe = not allowed
4. Trustworthy

The hearsay exception in S39 R130 will be triggered if a claim or demand is made against the estate
of the deceased. If the estate itself filed a claim, this rule will not apply.

In order to level the playing field, the estate of the deceased person can also testify as to an
ante-mortem fact.
RATIONALE
To balance the advantage given the claimant by the repeal of the dead man’s statute, the rule
permits the estate to introduce relevant hearsay statements of the deceased.

3. Former testimony or deposition

The testimony or deposition of a witness deceased or out of the Philippines or who cannot, with due
diligence, be found therein, or is unavailable or otherwise unable to testify (DOFU), given in a
former case or proceeding, judicial or administrative, involving the same parties and subject matter,
may be given in evidence against the adverse party who had the opportunity to cross-examine the
witness. (S49 R130).

Requirements:
1. Declarant is dead, outside the PH or cannot be found in Ph after due diligence or unable to
testify
2. Former case involved the same parties, same issues, same matter
3. There is a right to cross examine the declarant.

Example:
On the same occasion, the accused allegedly assaulted A and B which resulted to the death of A and
attempted murder of B.

The first case filed against the accused was his murder against A.

The secobd case filed against the accused was his attempted murder against B.

May the testimonies made in the first case be introduced as evidence in the second case?

Ans. No. It does not involve the same parties, subject matter and in fact involves two different
crimes. Besides, the prosecution must prove first that the witness is dead, outside the PH or cannot
be found in Ph after due diligence or unable to testify.

The amendment makes S49 R130 substantially similar to S1(f) R115 of the Rules of Criminal
Procedure, except that S1(f) R115 does not mention deposition. It is submitted that a former
deposition cannot be introduced against the accused as it would violate his right of confrontation.
- A former deposition may be introduced in a civil case if the requirements of S49 are met
- Even if the requirements of S49 are met, former testimony or deposition cannot be used in a
criminal case.
- Kaya pala, Depp v. Heard

Statements made during preliminary investigation are not covered by this exception since there is
no right to crossexamine. (S3(e) R112).
S47 R130 refers to a deposition taken in a former case or proceeding. If the deposition is taken in
the same civil case or proceeding, it is S4(c) R23 (DOSUE) which governs.

- SC R23 = with liberal reasons

- SC R23 = with catch all phrase - gives the court a wide leeway to admit the deposition.

Francisco v Pp, 12 July 2004

CASE 1 (Qualified Theft v Pacita): Jovita (employer) testified that Pacita (maid) admitted to her that
she had sold the jewelry to Francisco.

CASE 2 (Fencing v. Francisco): TSN of Jovita’s testimony in Case 1 is inadmissible against Francisco
in Case 2 to prove the truth of Pacita’s statement. It does not involve the same parties, same subject
matter.
Manliclic v. Calaunan, 25 January 2007
CASE 1. Criminal case for reckless imprudence filed by an offended party against the employee (bus
driver).

CASE 2. Civil case for tort filed by the offended party against the employer (bus company) to enforce
the latter’s vicarious liability under Article 2180 of the Civil Code.

Ans. TSN in Case 1 is inadmissible in Case 2 because the cases involve different parties and subject
matter and the employer does not have the opportunity to cross examine the declarant in Case 1.

4. ACT OR DECLARATION ABOUT PEDIGREE

- Requirements: RAPE - Relationship, Ante litem motam, Pedigree, independent Evidence
- The statement of a person deceased or unable to testify on the pedigree of another person
related to him by birth, adoption, or marriage, or with whose family he is intimately
associated with (BAMI), may be received in evidence if it occurred before the controversy
(ante litem motam), and the relationship between the two persons is shown by evidence
other than such act or declaration.
Ante litem motam
- It should be before the controversy, not before filing of the case. The reason being is that
when the statement is made after the controversy has already arisen then it is noy
trustworthy because it tends to favor one side of the controversy.
 - Ante litem motam applies in declarations regarding pedigree, common reputation and
family reputation.

Act/declaration re pedigree
- The person whose pedigree is the subject of the declaration (i.e. relative/subject) is related
to the declarant by by birth, adoption, or marriage or, in the absence thereof, with whose
family the declarant was so intimately associated as to be likely to have accurate information
concerning his pedigree.
- Presupposes two parties:
1. Declarant
2. Subject of the declaration who is related to the declarant by birth, adoption, or
marriage or, in the absence thereof, with whose family the declarant was so
intimately associated as to be likely to have accurate information concerning his
pedigree.
** The declaration is about the pedigree of the subject.

Example: The declarant must be related/associated to the subject by BAMI. This makes the
statement by the declarant trustworthy because of his relationship with the subject. E.g.
Declarant says that R (his brother) has a son named Boris.

Example: A housekeeper who's been with the family for several years. (The declarant was so
intimately associated as to be likely to have accurate information concerning his pedigree.)

Preliminary proof of relationship required The declarant’s relation/association by BAMI to the

person whose pedigree is subject of the statement (the relative/subject) must be preliminarily
proved by independent evidence other than the declaration.

H is the wife of R and claims against the estate of R.

H presents witness W.
W testified that declarant D says he has a brother named R and R’s wife is H.

- Take note: The witness is different from the declarant ( W v. D)

 - In order that the testimony of W be an exception to the hearsay rule, the proponent,H, must
prove that R and D are brothers by using other evidence, i.e other testimony of another
witness.
- W will testify as to the out of court statement made by D as to the pedigree of R - that R is
married to W.
- The declarant D, is related to the subject of the declaration R, his brother.

Exception
However, if the declarant’s statement is about his own relationship to the subject, then preliminary
proof of relationship is no longer required. (Tison v. Court of Appeals, 31 July 1997). The statement
itself is the proof of the relationship.

- R seeks to prove that she is the wife of D in order for her to inherit from the estate of D.
- R presents W as witness to testify that D told him (w) that R is his wife.
- No need for the proponent R that she and D are related to each other because the
declaration of the declarant is about his own pedigree/ relationship as to the subject.

In the case of a declarant by intimate association, there must be a showing that no declarant related
by BAM is available.
- Priority ang BAM bago ang I.
- Intimately related means the declarant is intimately related to the family of the subject and
not intimately related to the subject. E.g. The declarant is a mistress = NOT AN EXCEPTION
TO THE HEARSAY RULE because the mistress is not intimately related to the family of the
man but to the man himself.

5. DECLARATION AGAINST INTEREST (S40)

Requirements: ITC
The declaration of a person deceased or unable to testify, against his interest, if the declaration was
at the time it was made so far contrary to the declarant’s own interest that a reasonable man in his
position would not have made the declaration unless he believed it to be true.

★ Rationale: Trustworthiness: A person may not say something against his interest
unless it is really true.
★ Persons do not make statements which are damaging to themselves unless satisfied
for good reason that they are true.
 ★ Unlike an admission, where there is no requirement that the admission be against
the interest of the admitter. It is sufficient that the admission is given as an evidence
against a party - This rule does not apply in declaration against interest. The
declaration or admission must be against the interest of the declarant.
★ Distinguished from party admission, a declaration by a third-party must be against
his interest.

Example: A person made a declaration that he sold cryptocurrency without a license when during
that declaration, a license is required to sell cryptocurrency. Later on the law does away with the
license requirement. The declaration may still be offered as evidence against the declarant as an
exception to the hearsay rule because at the time the declaration is made, such is against the
interest of the declarant.

Meaning of “against interest”

Against interest means against the declarant’s pecuniary, moral, and penal (PMP) interest. A
declaration which would render invalid a claim by the declarant against another person is
considered as against the declarant’s interest. (FRE 804[b][3]).

Illustration
In torts case vs Defendant, the latter presents a witness who testifies that he heard X say that his
speeding car bumped into Defendant’s car, causing it to hit the Plaintiff.
- Declarant is X
- Proponent is the defendant
- The declaration of X is against his interest
- Because a declaration of a third party against interest is under the DU-requirement,
assuming here that the declarant is unable to testify in order for the testimony of the
witness to be admissible as an exception to the hearsay rule.

As distinguished from Admission- Example of Admission

The Plaintiff presents a witness who will testify that he heard the Defendant say, “The Plaintiff
invited me to his house.
- Declarant: Defendant
- Proponent: Plaintiff
- Witness: The one who heard the declarant
- The declaration by the defendant is not prejudicial to his interest because he merely said he
was invited to the Plaintiff’s house. This is an example of Admission which could be used by
the plaintiff to lay the foundation that defendant entered his house and subsequently
assaulted him, the plaintiff.

There is no requirement that a declaration against interest be made ante litem motam.
What is important is that the statement was against the declarant’s interest at the time it was made.
(Lichauoco v. Atlantic, Gulf & Pacific Co., 84 Phil. 330, 342-43 [1949]).
Declaration not against interest
The Plaintiff presents a witness who will testify that he heard Pedro (third person) say, “The
Defendant and I were invited to Plaintiff’s house.”

People v. Toledo, 51 Phil 285.

SHORT FACTS:
A quarreled over a piece of land as against B and C.
The three confronted each other which resulted in the death of A and B sustained injuries too. Later
on, B also died. Allegedly before B died he made an ante-mortem statement that he alone is
responsible for the death of A and C had nothing to do with it.

A case was brought against C for the death of A. C presents a witness that will testify as to the
declaration made by B.

The deceased declarant had stated that he alone was the one responsible for the death of the victim
and that the accused was free from blame. While the statement was not admissible as a dying
declaration, it was admissible as a declaration against interest. This is not admissible as a dying
declaration because the statement was not about the declarant’s impending death but of someone
else’s death, A. The declaration of C is against is penal interest which will exculpate C of criminal
laibaility.

Fuentes v. CA, 253 SCRA 430 involved a similar declaration, but the accused did not exert diligent
efforts to locate the declarant who was not shown to be dead. SC held that the declarant cannot be
considered as unavailable to testify and thus the exception did not apply.

Declaration against interest

A statement tending to expose the declarant to criminal liability and offered to exculpate the
accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness
of the statement. (S40 R130, 2020 Rules on Evidence)
- Dubious nature of the statement. This is a known tactic of the accused to pin it to someone
else and be off the hook.
- Instances of hearsay exceptions which require corroborated evidence:
1. A statement tending to expose the declarant to criminal liability and offered to
exculpate the accused
2. Child declarant’s declaration of a act of or attempted act of abuse where the
declarant is DU.

Williamson v. U.S.
D was apprehended after illegal drugs were found in his car’s trunk. D told the police officer that
he was transporting the drugs given to him by X and owned by Y. In the prosecution of X and Y for
drug trafficking, may the police officer testify over hearsay objection about the statement made to
him by D?
No. Only those portions of the declaration against penal interest which are self-inculpatory
are admissible. Those portions which do not inculpate the declarant or which inculpate another
person are excluded from the coverage of the exemption. (Williamson v. United States, 512 U.S.
594 [1994]).

SHORT FACTS:
Rogelio filed a case to recover a land from Julio Maghinang, Jr. Julio presented an Affidavit of Ignacio,
the grandfather of Rogelio, staging that Emilio, Ignacio’s son and father of Rogelio, sold the land to
Julio Maghinang, Sr.

HELD: The affidavit is not admissible as evidence under the hearsay exception because a DAI
must be against the declarant's own interest.
There is no declaration against interest where the affidavit (declaration) was executed not by the
seller himself but by his father. (Dantis v. Maghinang, 10 April 2013, Mendoza, J.). The declaration
must be against the declarant’s own interest, not that of another person.
Death/Unavailability not required 2RFC BLOC
1. RES GESTAE, PART OF THE (S44)

Two kinds:
A. Excited utterance (STIC) - You can call it part of the res gestae
B. Verbal acts.

A. Excited utterance (STIC) - Statements made by a person while a startling occurrence is

taking place or immediately prior or subsequent thereto under the stress of the excitement
caused by the occurrence with respect to the circumstances thereof may be given in
evidence as part of the res gestae.

- Rationale: A high level of reliability on statements made under the effect of a startling or
exciting occurrence.
- Illustration: Statement of purser re commotion aboard plane involving Mr. Carrascoso’s
forcible transfer to tourist class was part of the res gestae. (Air France v. Carrascoso, 18
SCRA 155).
- If the statement was not given while the startling occurrence is taking place or immediately
prior or subsequent, it could still be an excited utterance provided the statement is under
the stress or influence of the excitement caused by the occurrence.
CASES:
1. A sudden attack on a group peacefully eating lunch on a school campus by masked men
wielding baseball bats is a startling occurrence. The statements of bystanders made
immediately after the assault are admissible as part of the res gestae. (People v. Feliciano,
5 May 2014, Leonen, J.).
 2. An automobile speeding down a street and suddenly smashing into a parked dump truck in
the dead of night is a startling occurrence. The police officer’s testimony re bystander’s
statements was therefore admissible as part of the res gestae. (Phoenix Construction, Inc.
v. Dionisio, 10 March 1987, Feliciano, J.).
- The police report prepared by the police based on the statements of the bystanders
remains admissible in evidence as official record and the bystanders’ statements as
part of the res gestae.However, if the bystander’s statements are inadmissible for
being hearsay, the police report is also inadmissible in evidence.

3. Statements of chief engineer and chief mate of the ship which collided and sank, made a few
hours after the incident, are part of the res gestae and admissible even if they were not
presented as witnesses. (Aleson Shipping Lines v. CGU International Insurance, 15 July
2020, Leonen, J.).

Two benchmarks of immediacy

1. TIME
2. EFFECT/STRESS - US Case; 1 month after the crime, the woman is still under the stress of
the startling occurrence (the accused beating her up.)

4. Immediacy not only a matter of time but of influence - Statement admissible even if
made eleven hours after the incident, provided the declarant was still under the influence of
the startling event. (Zarate v. People, 3 July 2009).

5. Statement made 12 hours after by AAA that she was ravished by her own father admissible
as part of res gestae but that made 3 days after was far too removed from the event. (People
v. XXX, 22 August 2018, Caguioa, J.).

6. Statement made by victim 3 days after the shooting admitted as part of the res gestae where
he was still under influence of the startling event and had no opportunity to fabricate.
Victim still under influence since he had to undergo extensive surgery after shooting. (Pp v.
Vargas, 18 Sep 2019, Caguioa, J.).

Rule of Thumb
If the statement was made at the time of or immediately before or after the startling occurrence, it
may be presumed that it was made under the stress of excitement caused by the startling
occurrence, but if it is removed in time from the occurrence, there must be a showing that the
declarant was still under the stress of excitement.

Ante-mortem statements
• In ante-mortem statement, analyze using dying declaration and res gestae exceptions.
• In res gestae, look first for time and then effect/stress.
 7. Statement of victim to his wife “Panggay you see if Gilbert is still there” admissible as part of
res gestae but not proof that it was Gilbert who shot victim. (People v. Floresta, 17 June
2019, Perlas-Bernabe, J.).

B. Verbal acts (MEL)

- Statements accompanying an equivocal act material to the issue and giving it a legal
significance.
- Rationale: The truth of the verbal act is not relevant, what is important is that the
statement gives legal significance to the equivocal act since an equivocal act is susceptible to
two different interpretations.. Strictly speaking, verbal acts are not an exception to the
hearsay rule but are IRS.
- Example: Witness for the estate stated that when the decedent handed the money to the
defendant, the decedent said, “This is a loan.” The act of handing money to someone may
mean that the giver is donating something; giving the money out of generosity, tending a
payment, etc. Since there was a statement that gives legal significance of the equivocal act -
clearly making it as a contract of loan, then this is admissible as evidence as part of the res
gestae.

2. Records of regularly conducted business activity (S45)

- A memorandum, report, record or data compilation of acts, events, conditions, opinions, or
diagnoses, made by writing, typing, electronic, optical or other similar means at or near the
time by - or from information transmitted by - a person with knowledge thereof and kept in
the regular course or conduct of a business activity, and such was the regular practice to
make the memorandum, report, record, or data compilation by [writing, typing] electronic,
optical or similar means, all of which are shown by the testimony of the custodian or other
qualified witnesses, is excepted from the rule on hearsay evidence. (S45 R130, as amended
by the 2020 Rules on Evidence).
- Rationale: Trustworthiness of business records: It is in the interest of one engaged in
business to keep an accurate record of transactions on which it deals with.
- Coverage: This covers electronic and non-electronic business records. May be a business for
profit or not but a business of profession; legal or illegal, e.g. the logbook of a security guard.
- The new provision provides for a uniform rule regarding business records. Before there was
a bifurcated approach regarding business records: Then S43 R130 for non-electronic
business records and R8 of the Rules on Electronic Evidence (REE) on electronic business
records.
- The new S45 R130 provides for a uniform approach since S45 R130 applies to both
electronic and non-electronic business records.
- There is no reason why R8 of the REE should not be applied to non-electronic documents. -
SC Explanatory Notes 29.
- Part of the testimony of the witness must be that it is a business practice that the company
makes these records. The witness need not be the record keeper himself. It should be the
testimony of the custodian.
Significant changes under new S45 R130
1. The availability or unavailability of the entrant is no longer material. - DU no longer
required.
2. The entrant/recorder need no longer have personal knowledge of the information he is
recording, it being sufficient that the record is made by or from information transmitted by a
person with knowledge thereof.
3. Business records are no longer considered as prima facie evidence. Under the former S43
R130, business entries were received as prima facie evidence.

Examples:
Books of account, invoices, statements of account, bills of lading, log-book of a security guard,
medical charts by nurses and doctors in a hospital.

Accident report not business entry exception

Accident report by train engineer after being interviewed by assistant superintendent not
admissible. Not made in the “regular course of business.” The report was made with a view to
“litigating not railroading.” (Palmer v. Hoffman, 318 U.S. 109 [1943]).

Accident report, made by the trainmaster of the defendant train company, which stated that the
train car’s brakes were tested immediately prior to and after the accident and that nothing wrong
was found was held admissible as a business record. (Lewis v. Baker, 526 F.2d 470 [2d Cir. 1975]).

The court distinguished this case from Palmer v. Hoffman, where the train engineer who made the
accident report had been personally involved in the accident and thus had a strong motive to
exculpate himself.

While routineness and repetitiveness were important in the business entries exception under the
former Section 43 of Rule 130, they have been de-emphasized in the present Section 45 of Rule 130.
This is shown by the fact that records of diagnoses or opinions are included in the business
records exception. What is important is that the records were kept in the regular course or conduct
of a business activity. (See FRE 803[6] Advisory Note).
- Routineness and repetitiveness are no longer determinative if the record is business
record or not.
-
Electronic business record, def.
Sec. 2(b) R2 of REE defines “business records” as including records of any business, profession,
occupation, and calling (B COP) of every kind, whether or not conducted for profit or for legitimate
purposes.

A business record is presumed trustworthy. This presumption may be overcome by evidence of

the untrustworthiness of the source of the information or the method or circumstances of the
preparation, transmission, or storage thereof. (S2 R8 REE).
It is submitted that S2 R8 REE is applicable to S45 R130.

3. COMMON REPUTATION (S43)

- Reputation is hearsay since it represents the collective declaration/statements of a
community.
- Common reputation existing previous to the controversy, as to boundaries of or customs
affecting lands in the community and reputation as to events of general history important to
the community, or respecting marriage or moral character, may be given in evidence.
- The broad phrase “facts of public or general interest more than 30 years old” under the
former S41 R130 on common reputation was deleted and replaced with the more particular
“boundaries of or customs affecting lands in the community and reputation as to events of
general history important to the community.”
- Reputation refers to the moral character of a person - That a person is intelligent is not the
reputation contemplated herewith.
- Ante litem motam requirement: existing previous to the controversy
- S43 speaks of common reputation which is generally understood as the reputation existing
in the community in which the fact to be proved is known or exists. (2 Regalado 494, 6th rev.
ed.)
- Monuments and inscriptions in public places may be received as evidence of common
reputation. (S43 R130). - E.g. boundary dispute between two cities.
- Reputation is one way of proving character. Hence, this rule matters in instances where the
character of the accused is important. In mercy rule, the good character of the accused is
important. In civil cases, character is usually irrelevant. If the character itself is the issue,
then this rule will apply.
- Community - not necessarily confined to territorial boundaries - Modern meaning:
workplace, school, etc.

Requirements: LaHiMMA
1. LAND.
2. GENERAL HISTORY. - Hindi yung si Maria kalaguyo ni Pedro.
3. MARRIAGE. - They are common law spouses = pwede
4. MORAL CHARACTER. - Hindi yung character na matalino ka.
5. The reputation must exist ante litem motam. (S43 R130)

4. FAMILY REPUTATION OR TRADITION ABOUT PEDIGREE

Requirements: (AFP)
- A family member’s testimony on the family reputation or tradition regarding the pedigree of
any of its members. The reputation or tradition must exist prior to the controversy. (Ante
litem motam). Thus, the witness must be a member of the family of whose reputation of
pedigree he is speaking of.
- 2020 amendments include in “family member” one who is a family member by adoption.
- W can testify that the reputation in their family was that Maria was an adopted child of his
parents.
- Note that the witness must be a member of the family on whose reputation or tradition he is
testifying about.

- Entries or engravings in family books and objects are admissible as proof of pedigree.
- No need to call to the witness stand the ones who made the entries or engravings or to show
who the author of the entries or engravings are. (Moran)
- Family reputation exception may be used to prove age in statutory rape case. (People v. XXX,
17 July 2019, LazaroJavier, J.).

5. COMMERCIAL PUBLICATION (S47)

- Requirements: (PIO PR) - Statements of matters of interest to persons engaged in an
occupation contained in a list or other published compilation, published for use by such
persons and generally relied upon by them. (S47)
- S47 R130 contemplates the situation where data is gathered to prepare a published list or
compilation. Classified advertisements are not included here as these are not compiled.
- Examples: Stock market reports, foreign exchange tables, mortality tables, actuarial and
annuity tables, which are published for use and relied upon by the persons engaged in a
profession or enterprise.
- Rationale: Trustworthiness: The people who compile the list have a vested interest in their
accuracy and reliability.
- Foreign case reports contained in private publications: Admissible to prove foreign
jurisprudence. Published for use and relied upon by lawyers. If a commercial publisher, a
commercial list/publication. If published by an official court reporter, then an official record.
 - Advertisements in the buy-and-sell section of newspapers not included since they are just
separate and distinct offers and not data gathered for use by persons engaged in an
occupation.

CASES:
1. PNOC Shipping v CA, 297 S 402 (1998)- Price quotation letters for the replacement cost of
a barge sent by shipbuilders to plaintiffs are not covered by the exception.
2. Meralco v Quisumbing, 326 S 172 - Secretary of Labor may not take into account a
newspaper report citing an All Asia Capital financial analyst’s estimate of Meralco’s 1996 net
operating income at ₱5.8 billion. Hearsay and not a commercial list.

- Stock market reports: Stock market quotations or reports published in newspapers and
specialty journals are excepted under the commercial publications exception. (See Notes of
the Advisory Committee to FRE 803[17]).
- A newspaper’s stock-price listings are published for use by persons engaged in stock market
trading or investing and are generally relied upon by them.
- The contrary pronouncement in Manila Electric Co. v. Quisumbing was merely obiter and is
not in accord with the majority position of American courts and legal authorities.
Quisumbing involved a newspaper report of a financial analyst’s estimate of Meralco’s 1996
net operating income which was clearly hearsay.
6. OFFICIAL RECORDS S46
- Requirements: (K POP) - Entries in official records made in the performance of his duty by
a public officer of the Philippines, or by a person in the performance of a duty specially
enjoined by law. Yung K wala sa Rules pero asa Jurisprudence. This refers to a personal
knowledge of the entrant. Even the person who made the public document may be a private
person not necessarily a public official.

- Prima facie evidence - Not only are official records excepted from the hearsay rule, they
are also prima facie evidence of the facts stated therein. It is in effect an exception to the
hearsay rule.

- A public record made by a public officer of a foreign country remains admissible as an

exception to the hearsay rule. Correlate this to Secs. 19 and 23 (a) of Rule 132. Thus,

Sec. 19 provides that: Public documents are: (a) The written official acts, or records of the
sovereign authority, official bodies and tribunals, and public officers, whether of the
Philippines, or of a foreign country;
Sec. 23 provides that: Public documents as evidence. - Documents consisting of entries in
public records made in the performance of a duty by a public officer are prima facie
evidence of the facts therein stated.

- The entrant must have personal knowledge of the facts stated by him or knowledge
acquired through official information. (Africa v. Caltex, 16 SCRA 448). The portion of
the police report that there are several bystanders in the area is a personal knowledge to the
police officer as this is something he observed and therefore perceived. But that portion
which says that somebody threw a lighted cigarette in a gasoline station that caused the fire
is not his personal knowledge as this information was supplied to him by one of the
bystanders he interviewed. The statement of the bystander could be excepted under the
stress of an startling occurrence or part of res gestae.

- Or the declaration contained in the report must be justified by another hearsay exception or
exclusion. (See double hearsay discussion).

- Official information
1. Entry by LCR as to details of marriage certificate an official record since supplied to
him by a solemnizing officer who has specific legal duty to do so under Family Code.
2. Entry made by public officers from info supplied by his subordinates.

**Here the information is supplied or acquired through official information and

therefore admissible as evidence under the hearsay exception even though the one who
entered such information like the Local Civil Registrar (LCR) has no personal
knowledge of the information.
 - Persons specially enjoined by law - Private person specifically enjoined by law to
make the entry and such entries are considered as official records
1. Log book entries required under the Code of Commerce to be kept by a ship captain.
2. Stamp of dishonor and its reason required from the drawee of a check under B.P. Blg.
22.
**Official records are syron evidence because of these are prima facie evidence of the contents
stated therein.

CASES:
1. Medico-Legal Report admissible against accused in rape case; exempted from the hearsay
rule as an official record. (People v. Tuyor, 12 Oct 2020, Peralta, C.J.) Even if the person
who made the report is not presented in court. Take note of the rule for an accused under
preventive detention.

2. Barcelon Roxas Securities v CIR, 7 Aug 2006 - A BIR record book containing the
taxpayer’s name, the tax assessed, the registry receipt number, and the date of mailing,
which was offered to prove that the taxpayer had received an assessment notice was held to
be hearsay.
- The BIR records custodian who made the entries did not have personal knowledge
thereof since she did not attest that she was the one who personally prepared and
mailed the assessment notice nor did she attest that the information in the entries
were supplied by persons having a specific legal duty to do so (OI).
- It is up for the proponent to prove that the custodian made an entry as Official
Information - supplied to him by subordinates with legal duty to do so. Laying the
foundation.

3. Africa v Caltex, 16 SCRA 448 - Police investigation report of a fire at a gasoline station.
Police officer did not have personal knowledge of the cause of the fire (throwing of a
cigarette) which was supplied to him by a bystander he had interviewed.

4. The Traffic Accident Investigation Report was hearsay since the police officer who prepared
it did not have personal knowledge of the cause of the accident. (DST Movers Inc. v.
People’s Gen. Ins. Corp., 13 January 2016, Leonen, J.). Not everything in a Traffic Accident
Investigation Report is admissible. Same rationale in the Africa v. Caltex case.

5. The NBI/Progress report, having been submitted by the officials not on the basis of their
own personal knowledge of the facts reported but merely on the basis of the complainants'
affidavits is hearsay. The Deputy Ombudsman cannot rely on it. (Miro v Vda de Erederos,
20 Nov 2013). This is a case of double hearsay. The affidavits are the first hearsay because the
affiants were not presented in court and the report is the second hearsay as the officer who
made the report was not presented in court either.
 6. Sheriff’s return is an official record as to fact stated therein. Sheriffs need not be presented in
court. (Manalo v. Robles Trans. Co., 99 Phil. 729).

7. POEA certification
- POEA certification that the accused was not a licensed recruiter is an official record.
Hence, it is an exception to the hearsay rule and admissible even if the one who made
the certification was not presented in court. (People v. Ochoa, 31 August 2011).
- The SC noted that a witness had identified the signature of the certifying officer.
Even if the certifying officer’s signature was not identified, the certification would
still be admissible as it is a public document under S19(a) R132 which does not need
to be authenticated.

Interface between S46 R130 & S19(a) R132

- Not only are official records an exception to the hearsay rule, but they are also are public
documents under S19(a) R132 and thus are not required to be authenticated.

Sec. 13, A.M. No. 12-11-2-SC re accused under preventive detention

- A certified copy of the report of a government medical, chemical, or laboratory expert
relating to a criminal case shall be admissible as prima facie evidence of the truth of its
contents. (echoed Sec. 23 of Rule 132)
- Only applies to an accused who cannot post bail pending preliminary investigation.
- The personal appearance in court of a witness who prepared the report shall be
unnecessary unless demanded by the accused for cross-examination. If the witness who
prepared the report cannot appear, the report becomes inadmissible in evidence.

7. LEARNED TREATISES (S48)

- Requirements: (PLR): A published treatise, periodical or pamphlet (TPP) on a subject of
law, art, science, or history (LASH) is admissible as tending to prove the truth of a matter
stated therein if the court takes judicial notice, or an expert witness testifies that the writer
is a recognized expert in his profession or calling.

It must be published and the subject is LASH and the writer is an expert.
How can it be proved that the writer is an expert?
(1) Judicial notice or
(2) a witness must testify that the writer is an expert in LASH.

- The fact that the material is published online, or in the form of videotape, or in some other
electronic form that has become a feature of modern life should not detract from its
admission under this exception. (Mueller & Kirkpatrick, 974).

- Double or multiple hearsay:

 ➢ Where a hearsay declaration is embedded in another with the result that there are
two or more levels of hearsay. You can spot a possible case of double hearsay if there
are 2 declarants.
➢ There are two declarants: E.g. earlier example: affiants and police officer

- GUIDANCE: Hearsay included within hearsay is not excluded under the hearsay rule if each
level of hearsay conforms with an exception to (or exclusion from) the hearsay rule. (See
FRE 805).

- Problem:
D1 was found mortally injured by a police officer D2 in a lobby of a hotel. Conscious of his
impending death, D1 was interviewed by D2. Before expiring, D1 told D2 that X stabbed him
several times.
D2 wrote what D1 said in his police report. In the prosecution of X for murder, may the court
admit the police report to prove that X stabbed D1, even without the presentation of D2
in court?

Ans. Yes. Both levels of hearsay are excepted by a hearsay exception. Declaration of
Declarant 1 or D1is excepted by dying declaration and Declaration of Declarant 2 or D2 is
excepted by official records. Kahit wala na yung first box - No need for a Witness to identify
the police report because it is an Official Information. I-submit lang ppwede na.

- Problem:
D1 was found mortally injured by the hotel security officer D2 in a lobby of a hotel.
Conscious of his impending death, D1 was interviewed by D2. Before expiring, D1 told D2
that X stabbed him several times.

D2 wrote what D1 said in his log book. D2 later died in an accident. In the prosecution of X
for murder, may the court admit in evidence the log book to prove that X stabbed D1 over
objection that it is hearsay?
 Ans. Yes. Same as the illustration above. A business record could be something pursuing a
calling, occupation or profession and not necessarily a business per se. A business record is
now under Group 2 where DU is not required. Hence, even if D2 did not die and was not
presented in court his report remains admissible as evidence.

- Problem:
Victim was found dead by the hotel security officer D2 in his hotel room. A hotel guest (D1)
told D2 that he saw X leave the victim’s hotel room an hour earlier. D2 wrote down D1’s
statement in his log book.

In the prosecution of X for murder, may the court admit in evidence the log book to prove
that the X left the victim’s hotel room an hour before the victim was found dead?

1978 Remedial Law Bar Q:

Pedro was run down and injured by a Ferrari sports car that did not stop after the accident.
The Fiscal believes that Jose was the one driving the hit-and-run car and is preparing to
prosecute him.

Pedro tells the Fiscal that his (Pedro’s) cousin, Atty. Cruz, was consulted by Jose at the law
office and that Jose who was clearly agitated had said, “I ran over someone with my Ferrari
 and the guy looked like he was seriously hurt.” May the Fiscal use in court the testimony of
Pedro?

The animals cannot be cross-examined.

Bar Q: The dog was sniffing over a bag containing drugs.

Hearsay not objected to:

Hearsay not timely objected to is admissible since the ground for the objection is deemed
waived. If so admitted, it has probative value and should be given the weight it deserves on a
case-by-case basis. (Tison v CA, 276 SCRA 582; Manliclic v Calaunan, 25 Jan 2007; 5 Moran
285 [1980 ed.]).

8. Residual Exception - This is also known as the Catch All Exception; NEW HEARSAY
EXCEPTION Not more BAr Qs about this except maybe the Dallas Case.
- Aside from specific exceptions to the hearsay rule, the residual exception allows for
a broad exemption for statements “having equivalent circumstantial guarantees of
trustworthiness.”

- It gives a leeway to the judge to accept it if trustworthy and give probable weight.
 - Sec. 50. Residual exception. - A statement not specifically covered by any of the
foregoing exceptions, having equivalent circumstantial guarantees of trustworthiness,
is admissible if the court determines that (a) the statement is offered as evidence of
a material fact; (b) the statement is more probative on the point for which it is
offered than any other evidence which the proponent can procure through
reasonable efforts and (c) the general purposes of these rules and the interests of
justice will be best served by admission of the statement into evidence.

- Advance notice required: However, a statement may not be admitted under this
exception unless the proponent makes known to the adverse party, sufficiently in
advance of the hearing, or by the pre-trial stage in the case of a trial of the main case,
to provide the adverse party with a fair opportunity to prepare to meet it, the
proponent's intention to offer the statement and the particulars of it, including the
name and address of the declarant.

- Example:
Unsigned newspaper article dated 9 June 1901 to prove that a fire of that date and
not lightning in 1957 thunderstorm had caused the collapse of the Dallas County
courthouse.

The article was needed because the memory of any witness to the fire would not
have been as reliable as the newspaper account. The article was the only evidence
available to prove the insurer’s claim and it came from an inherently reliable source.

The article was trustworthy since it was inconceivable that a small-town reporter
would fabricate the story. (Dallas County v. Commercial Union Assurance Co.,
286 F.2d 388 [5th Cir. 1961])

- Traditional definition of hearsay:

An out-of-court statement made by a person who is not presented as a witness and which
statement is offered to prove the truth of the fact asserted therein. (DST Movers Corp. v.
People’s Gen. Ins. Corp., 13 January 2016, Leonen, J.) Thus, if the declarant is presented in
court the statement is no longer hearsay because the statement is already made in court and
the declarant can be subject to a cross examination - MINORITY RULE.

- New Definition of hearsay:

Hearsay is a statement other than one made by the declarant while testifying at a trial
or hearing, offered to prove the truth of the facts asserted therein. (S37 R130). Even if the
declarant is presented in court and subjected to cross examination, his out of court statement
remains hearsay - MAJORITY RULE. The rationale for the majority rule is that in order for the
cross examination to be effective it should have been done when the out of court statement was
made.
- 2020 Rules adopts US majority rule Under the 2020 Rules, the general rule is that even if
the declarant is presented as a witness in court and subject to cross-examination concerning
his out of-court statement, such statement would still be hearsay.

- Declarant-witness’s prior out-of-court statements - S37(a) R130

A statement is not hearsay if:
(1) the declarant testifies at the trial or hearing and is subject to cross-examination
concerning the statement, and
(2) the statement is:
(a) inconsistent with the declarant’s testimony and was given under oath subject to the
penalty of perjury at a trial, hearing, or other proceeding, or in a deposition;
(b) consistent with the declarant’s testimony and is offered to rebut an express or
implied charge against the declarant of recent fabrication or improper influence or
motive; or
(c) identifies a person as someone the declarant perceived earlier.

(a) - PRIOR INCONSISTENT STATEMENT

(b) - PRIOR CONSISTENT STATEMENT
(c) - PRIOR IDENTIFICATION STATEMENT
**If it falls under any of these categories, it is non-hearsay (not an exception to hearsay) and
therefore admissible. It is offered as substantive evidence offered to prove TOFA.

- S37(a) R130 Illustration: PRIOR INCONSISTENT STATEMENT:

Defense presents DW as witness in which she testified that the accused was not the one who
shot the victim. On cross, she denies making a contrary statement to police. Prosecution
presents a police investigator who will testify that DW told him that the accused had shot
the victim. Is DW’s statement to the police hearsay?

Statement of the Witness:

Prior statement with the police - accused shot the victim
Statement during trial - accused did not shot the victim

ISSUE: Is the statement of the witness to the police hearsay?

Ans. It depends upon the purpose for which the statement is offered. If offered for the
purpose of impeaching DW, the statement would not be hearsay. It is not being offered
to prove the truth as to whether the accused shot the victim but rather to simply impeach the
witness.

If offered to prove TOFA or that the accused indeed shot the victim, it is hearsay. DW’s
prior inconsistent statement to the police investigator was not given under oath subject to
perjury.
 Therefore, DW’s statement to the police may not be used by the prosecution to prove that
the accused shot the victim but only to impeach DW pursuant to S11 R132.

- S37(a) R130 Illustration: PRIOR INCONSISTENT STATEMENT

Defense presents DW as witness in which she testified that the accused was not the one who
shot the victim. The prosecution then offers in evidence the transcript of DW’s testimony in
a related civil case wherein DW stated that the accused was the one who shot the victim. Is
DW’s testimony in the civil case hearsay?

No, DW’s testimony in the civil case is non-hearsay. It is DW’s statement given under oath
subject to perjury at a trial. Hence, it can be used by the prosecution in the criminal case to
prove that the accused shot the victim.

- S37(b) R130 Illustration: PRIOR CONSISTENT STATEMENT

A declarant-witness’s prior consistent statement is still hearsay even if the declarant
testifies at the trial or hearing and is subject to cross-examination concerning the statement
unless it falls within the exclusion under S37(b) R130. E.g. An Affidavit is a prior consistent
statement.

- New rule re affidavit:Under S37(b) R130, an affidavit would still be hearsay even if
the affiant would testify in court and be subject to cross examination concerning the
affidavit. (See Committee Notes).
➢ The affiant can still be presented in court and his statement in court will be
admissible as evidence but his affidavit despite his appearance in court
remains hearsay.

- Reason for a Prior Consistent Statement Rule:To Prevent a Impermissible Bolstering:

The reason is that introducing such a prior consistent statement would constitute
“impermissible bolstering.” Repeating a statement does not make it any more true or
believable. Mr. Gobles: Repeat a lie often enough and it becomes the truth. Otherwise, “To
favor a loquacious witness over a reticent witness.”

- S37(b) R130 Illustration: PRIOR CONSISTENT STATEMENT

Prosecution of accused for rape of X. X testifies that accused raped her and was
cross-examined.

The prosecution then offers the testimony of Y (X’s friend) who will testify that X told her
that she had been raped by the accused. Is Y’s testimony hearsay?

Ans. Yes. The declarant-witness’s prior consistent statement is hearsay even if she was
subject to cross-examination concerning the statement since it was not offered to rebut an
 express or implied charge against the declarant of recent fabrication or improper influence
or motive. The testimony of Y is corroborative of X’s testimony. It is an impermissible
bolstering of something already testified to.

- S37(b) R130 Example: PRIOR CONSISTENT STATEMENT

Prosecution of accused for the rape of X. X testified that accused, her former co-employee,
raped her. On cross examination, X was asked whether it was true that the accused had
recommended to their boss that she be fired.

After X’s cross-examination, Prosecution will present Y (X’s friend) who will testify that X
had confided to her that she had been raped by accused. May the defense object on the
ground that Y’s testimony is about hearsay?

Ans. No. X’s statement is being presented as a prior consistent statement in order to rebut
the implied charge of recent fabrication or improper influence or motive.
- There was an implied charge of fabrication against the declarant - meaning that the
charge of rape was only fabricated by X in order to get back to the accused who
recommended her dismissal. In order to rebut that alleged fabricated charge by the
victim X, she is allowed to present a prior consistent statement she made to her
friend, Y.
- Not only is the testimony of Y admissible to rebut the fabricated charge but also
admissible as to the culpability of the accused in raping the victim.

- S37(c) R130 Illustration: PRIOR IDENTIFICATION STATEMENT

Similar with b but no impermissible bolstering.

W witnessed a shooting. In the police station two days later, W identifies X as the gunman
from a rogues’ gallery. During trial, W identifies X as the gunman. Prosecution will then
present a police officer who will testify about W’s identification in the police station.
Hearsay?

Ans. No. W’s statement is one in which the declarant W identified a person as someone the
declarant perceived earlier. The rationale is that the prior out-of court identification
statement is a permissible bolstering of the in-court identification. There is no impossible
bolstering because the prior identification is more reliable than the latter identification in
court.
 9. CHILD-DECLARANT RE CHILD ABUSE (S28 RECW) - Rule on examination of a a Child
Witness

- S28 RECW:
A child’s statement re act or attempted act of child abuse is excepted from the hearsay rule.
The proponent shall make known to the adverse party the intention to offer such statement
and its particulars to provide him a fair opportunity to object.

TWO SCENARIOS:
1. If child is available
If the child is available, the court, upon motion of the adverse party, shall require the
child to be present at the hearsay statement for cross-examination by the adverse
party. Need not be corroborated.

2. If child is unavailable
The proponent must prove that the child is unavailable. The statement shall be
admitted only if corroborated by other admissible evidence. WITH DU
REQUIREMENT/ GROUP 1

- “Unavailable”
“Unavailable” includes cases where the child is suffering from physical
infirmity, lack of memory, mental illness, or will be exposed to severe
psychological injury.

- Lack of firsthand knowledge distinguished from hearsay

Testimony confined to personal knowledge. - A witness can testify only to those facts
which he or she knows of his or her personal knowledge; that is, which are derived
from his or her own perception = Lack of firsthand knowledge, (S22 R130).

ILLUSTRATION 1: Lack of firsthand knowledge distinguished from hearsay

Prosecution presents W who testifies that the accused shot the victim. Defense
knows that W was in the U.S. at the time of the shooting, which happened in the PH.
Defense can object on the ground of lack of firsthand knowledge.
- Here, the witness is not testifying on an out of court statement but is simply
saying that the accused shot the victim. As such, this is a case of Lack of
firsthand knowledge and not hearsay.

ILLUSTRATION 2: Lack of personal knowledge distinguished from hearsay

Prosecution presents W who testifies that he heard David say that the accused shot
the victim. The proper objection is not lack of firsthand knowledge but hearsay since
W is reporting an out-of-court statement.
**YOU DO NOT DEFINE HEARSAY ON THE BASIS OF LACK OF PERSONAL KNOWLEDGE
BUT ON THE BASIS OF OUT OF COURT STATEMENT TO PROVE TOFA.
10. OPINION RULE
- G.R. The opinion of a witness is not admissible in evidence.
- A witness's job is not to interpret the facts . This is the duty of the court. The witness is
simply to narrate the facts.

- Exceptions: (SLEC) - These exceptions will help or guide the court in interpreting the
facts.
1. Expert opinion.
2. Lay opinion on HIS (Handwriting, Identity and Sanity and )and short-hand impressions on
CABE (Condition, Appearance, Behavior and Emotion).
3. Witness’s opinion of a person’s character in cases where character evidence is admissible.
(S54 R130). = Addition under the 2020 Rules
- Old rule: The character of a person can only be proven through reputation. Now even
a witness’s opinion of a person’s character is allowed .E.g. I know her as a
law-abiding citizen and peaceable. (Correlate this to the MERCY RULE)
- Under S54 R130 of the 2020 Rules, a person’s character may be proved by the
opinion of a witness.

- EXPERT OPINION
Sec. 52. Opinion of expert witness. - The opinion of a witness on a matter requiring special
knowledge, skill, experience, training or education (TEKES), which he is shown to possess,
may be received in evidence.

- Not necessary that expert witnesses have formal training or instruction.

- Expert witness must be qualified:

The witness should be qualified, that is, he should be shown to possess the special
TEKES before he is allowed to testify. Objection as to failure to qualify should be
timely raised; otherwise, it is deemed waived.Paties may stipulate on the
qualifications of the witness.

- Unlike the ordinary witness, the expert witness may testify based on hypothetical or
assumed facts. If ordinary witness = ground for objection: The witness is speculating.

- Even assuming Dra. Dela Llana was a neurologist, her testimony that the car collision
caused the whiplash injury cannot be given probative value as she was presented
not as an expert witness but as an ordinary witness. (Dela Llana v. Biong, 4
December 2013). Dra. Dela Llana was presented as an ordinary witness - to narrate
the facts of the incident and not as an expert witness. The proponent should specify the
purpose of offering an evidence.
 - Lay or short-hand opinion of witness allowed in: (HIS)
–Handwriting of which he is familiar. - The witness could be a private person
who is familiar with the handwriting of the person. The basis should be laid
that the person testifying is familiar with the handwriting.

–Identity of a person whom the witness adequately knows.

–Sanity of a person of whom the witness is acquainted

- Ordinary witness’ impression on similarity of signature is an opinion if familiarity with

handwriting of signer is not shown. (Co v. People, 16 Oct 2019, Bersamin, C.J.).

- Expert opinion is not necessarily stronger than lay opinion. In fact, lay opinion may be
stronger because of the witness’s familiarity.

- Short-hand impressions - You do not need expertise to render an opinion on these matters.
1. Impressions on CABE (condition, appearance, behavior, and emotion) of a person
may be testified to by lay witness.
2. Lay witness can also give opinions on physical dimensions, lighting conditions, and
speed. (PLS).

- Opinion on past sexual conduct/behavior of rape victim inadmissible under the Rape
Shield Rule.
Exc: 1. With accused to show consent;
2. With another person to show that another was a source of semen, injury, or other physical
evidence.

CHARACTER EVIDENCE
The general rule is that character evidence is not admissible. The reason is that it is irrelevant.
A case should be decided based on the facts and the law, not on the character of the parties. The
court should try the case, not the man. (Pp v Lee, 29 May 2002).

Uses of character evidence. (DIRC)

1. AS CIRCUMSTANTIAL EVIDENCE, that is, that a person acted in conformity with his character.
(S54 R130) If the prosecution said that the accused is an honest person then it means that the accused
did not defraud the other and not guilty of estafa because he acted in conformity with his character.
2. AS DIRECT EVIDENCE of character, where character itself is directly in issue. - E.g. libel cases
where the character of the party is in issue.
3. TO IMPEACH the adverse party’s witness (S11 R132). - E.g. That the witness has a reputation of
lying. Therefore when he testified he acted in conformity with his character.
4. TO REHABILITATE a witness whose character has been impeached. (S54[c] R130). E.g. As
connected in the previous example: That the person is honest and has no reputation of being a liar.

Character as a rule cannot be used as circumstantial or propensity evidence. “Evidence of a

person’s character or a trait of character is not admissible for the purpose of proving action in
conformity therewith on a particular occasion.” (S54 R130, 2020 Rules).
- It doesn’t mean that because has the reputation of lying, he indeed lie on the specific
circumstances.
- Parag non-sequitur

OUTLINE OF THE RULES ON CHARACTER EVIDENCE

1. PARTY IN CIVIL CASES

➢ Evidence of moral character of a party is admissible only when pertinent to the issue
of character involved in a case. (picic) Used only as direct evidence because the
character of the party is itself in issue.
➢ Hence, character cannot be used as circumstantial evidence in a civil case except to
impeach or rehabilitate a witness.

ILLUSTRATION:
Q: Owner sued contractor for damages for using substandard materials despite
agreement to use high-quality materials. May the contractor present a witness to
testify on his honest reputation?

A. No. The issue of character is not pertinent to the suit for damages. Here character
evidence is being used merely as circumstantial evidence that contractor would not
have deceived owner as he has a propensity to be honest.

2. IN CRIMINAL CASES
Character can be used as circumstantial evidence:
 1. Mercy Rule - where the accused is allowed to prove his good moral trait involving
the offense charged.
2. Character of offended party - Usually in relation to a self defense where the
Prosecution will try to prove that the accused is non-violent in character.

ACCUSED’S CHARACTER (Mercy Rule) - CRIMINAL CASES:

Evidence of the accused’s good moral character is admissible if pertinent to the moral trait involved
in the offense charged (PMTIOC). This is also known as the “Mercy Rule.” (Bautista 139-40) . -
Usually in cases where there is violence, defraudation, etc. But if it is a malum prohibitum offense, the
character of the accused is immaterial.

Examples:
1. An accused is charged with estafa - he can present evidence that he is an honest person.
2. An accused is charegd with murder - he can present evidence that he is a peaceful person.

➢ Called Mercy Rule: To balance the prosecutory arms of the government.

➢ Take note: The prosecution cannot adduce evidence of the accused’s bad moral character
unless in rebuttal. So mauuna ang defense magpresent bago marebut ni prosecution.
Favorite Bar Q

OFFENDED PARTY’S CHARACTER

Evidence of the good or bad moral character of the offended party is admissible if it tends to
establish the probability or improbability of the offense charged (TEPIOC).
- It is not clear under the rules if the Prosecution at the outset of the case can be allowed to
introduce evidence of the offended party’s character. LECTURER: Pwede kasi hindi bawal ee. In
the US, only if the accused attacked the character of the offended party.

In homicide, defense evidence of the victim’s moral character admissible in two situations,
(1) to show victim’s aggression, and
(2) to show the accused's state of mind, i.e., that he had reasonable ground to believe that his life
was in danger, necessitating defensive action. (Pp v. Lee, 29 May 2002, e.b.)

Pp v Lee, 29 May 2002

The accused in a murder case raised the defense that the victim was a drug addict and thief to try to
show that he could have been killed by any one of those from whom he had stolen.

The SC said that proof of the bad moral character of the victim is irrelevant to establish the
probability or improbability of his killing since the accused did not assert that the killing was made
in self defense.
IMPEACHMENT & REHABILITATION OF WITNESS
The adverse party may introduce evidence that a witness’s general reputation for honesty, integrity,
or truth (HIT) is bad for purposes of impeaching the witness. (S11 R132).
- A witness cannot be impeached on the ground that he has a reputation of being quarelsome or
violent but only that his general reputation for honesty, integrity, or truth (HIT) is bad or he
has a reputation of lying.

If the witness’s character was impeached, the party who had presented the witness may rehabilitate
his witness by presenting evidence of his good moral character. (S54 R130).

When character is directly in issue in Civil Cases:

1. In actions for libel or slander - The plaintiff is libeled as a prostitute. She can present evidence that
she is not promiscuous or that she has a chaste character.
2. In action for seduction - The reputation of the woman is directly in issue.
3. In cases involving negligent hiring. - Evidence that the driver has the reputation of reckless driving
is relevant.
4. In child custody cases - The father has abusive character and should not be given custody of the
child.

Methods of proving character -

Q How is character proved?
A Character is proved by: (ROS) The witness testifying on these is called a “character witness.”
(1) reputation evidence,
(2) the witness’s opinion, or
(3) specific instances of conduct - Applies only if the character itself is directly in issue, the
character itself can be proved specific conduct. The father has an abusive character and should
not be given custody of the child. The wife can present evidence of specific instances where he
struck the child.

Rationale why character evidence can only be introduced if character itself is in issue - To
avoid collateral or extraneous matters. POPULARITY CONTEST NA ANG PARTIES. Paramihan
ng Instances.

The 2020 Rules expressly provide that character may be proved also by the witness’s opinion or, If
character is directly in issue, by evidence of specific instances of conduct.

Specific instances of conduct

G.R.: Specific instances of conduct may not be used to prove character. This would cause unfair
surprise upon the other party and result in the case getting bogged down on or diverted to
collateral issues.
Exception: If character itself is directly in issue. In cases in which character itself is in issue, that is,
a person’s character is an essential element of a charge, claim or defense. (S54[c] R130 adopting
FRE 405[b]).

Illustration
In an action for libel (that complainant was a serial adulteress), the defendant may present a
witness who will testify that he went with the complainant to a motel. Note that evidence of SIC is
admissible since character is directly in issue.

Case
In a proceeding involving a custody dispute over a child between his natural father and the
stepfather, the natural father may introduce evidence that the stepfather boxed the child’s mother
after an argument.

In a child custody proceeding, character of the parties is directly in issue. The question would be
relevant as an attempt to show a specific act of bad character bearing on the fitness of the
stepfather. (See Berryhill v. Berryhill, 410 So. 2d 416 [Ala. 1982])

Inquiry into SIC on cross-examination of character witness

The Rules also provide that on cross examination of a character witness, inquiry into relevant
specific instances of conduct is permitted. (Section 54, last paragraph, Rule 130). The proper
function of such cross-examination is not to prove character but only to test the witness’s credibility.

Illustration
A character witness testified that the accused in a bribery case has a law abiding reputation. On
cross examination, the witness may be asked whether he had heard that the accused was arrested
for receiving stolen goods. (Michelson v. United States, 335 U.S. 469 [1948]).

Common reputation, uses of (IM)

1. Common reputation is admissible to prove moral character. (S43 R130). 2. Adverse party’s
witness may be impeached by evidence that his general reputation for honesty, integrity, or truth is
bad. (S11 R132).
Thus in a torts case, the defendant may not introduce character evidence that he is careful but he
may introduce habit evidence to show that he honked his car horn while approaching a blind
intersection.