1

TESTIMONIAL EVIDENCE

A witness can testify only to those facts which he knows of his personal knowledge; that is,
which are derived from his own perception, except as otherwise provided in these rules. CHARACTER EVIDENCE
4blue95:matters learned from third person is considered as HEARSAY, ex: ―I learned from my
informant that..‖
Character (Sec. 51):The aggregate of the moral qualities which belong to and distinguish an
People v. Damaso, 212 SCRA 547 (1992) Hearsay evidence not objected to may be admissible individual person.
but, whether objected to or not, has no probative value and as opposed to direct and primary
evidence the latter always prevails.

REASON FOR EXCLUDING HEARSAY:It is not subject to the test of truth because there is
no opportunity for cross-examination.In other words, the witness cannot swear as to the truth
beyond what was told to him, heard or read. Also, this will be a violation of the constitutional
right to confrontation.

BAR: Defendant was declared in default so that the plaintiff presented evidence.The lone
witness presented testified on hearsay matters but since the hearing was ex parte, no objection
was raised against her testimony. Should the testimony be given probative value?NO,it has no
probative value even if not objected at the trial since it is hearsay evidence.

CLASSIFICATION OF OUT-OF-COURT STATEMENTS General Rule: Evidence of character or a trait of character is not admissible. (Rule 130,
Sec. 54)
1. HEARSAY - Those which are considered as hearsay and therefore inadmissible,
this occurs when the purpose for introducing the out-of-court statement is to Reason The rule is that the character or reputation of a party is regarded as legally irrelevant in
prove the truth of the facts asserted therein. determining a controversy, so that evidence relating thereto is not admissible. Ordinarily, if the
issues in the case were allowed to be influenced by evidence of the character or reputation of
2. NON-HEARSAY – Admissible. This occurs when the purpose for introducing the parties, the trial would be apt to have the aspects of a popularity contest rather than a factual
the statement is not to prove the truth of the facts asserted therein but only the inquiry into the merits of the case. After all, the business of the court is to try the case, and not
making of the statements and are admissible in evidence when the making of the the man; and a very bad man may have a righteous cause. (People v. Lee, G.R. No. 139070,
statement is relevant. These are so-called INDEPENDENTLY RELEVANT 2002)
STATEMENTS.
a. Criminal cases

3. EXCEPTIONS TO THE HEARSAY RULE – Those which are hearsay but are 1. As to the character of the accused
considered as exceptions to the hearsay rule and are therefore admissible. These
are from Sections 37 to 47 of Rule 130. A. The accused may prove his or her good moral character, which is pertinent to the
1.Dying Declaration moral trait involved in the offense charged. (Rule 130, Sec. 54[a][2]) For example, the
2.Declaration Against Interest accused in a murder case may present evidence that he has a reputation for being a
3.Act or declaration about pedigree; peaceful person.
4.Family reputation or tradition regarding pedigree;
5.common reputation; B. The prosecution may not prove his or her bad moral character pertinent to the moral
6.Res Gestae; trait involved in the offense charged, unless on rebuttal. (Rule 130, Sec. 54[a][2]) In
7.Entries in the ordinary course of business; rebuttal, the prosecution may present evidence that the accused has a reputation for being
8.Entries in official records; a quarrelsome person.
9.Commercial lists;
10.Learned treatises; 2. As to the Character of the Offended Party
11.testimony or deposition at a former proceeding
12.statement made by child describing a child abuse act(according to The character of the offended party may be proved if it tends to establish in any
4blue95 this is a 2022 update since in other books,the 12th ground is reasonable degree the probability or improbability of the offense charged. (Rule 130, Sec.
waiver) 54[a][1])
For example, in a murder case, the accused, invoking self-defense, can present evidence
Reason for the exceptions: They are admissible by reason of that the offended party (the victim) was of a quarrelsome disposition.
NECESSITY and TRUSTWORTHINESS.
Sexual abuse shield rule in child sexual abuse cases
4blue95:1,2,3&7 requires the witness must be dead The following evidence, however is not admissible in any criminal proceeding involving
alleged child sexual abuse under the ―sexual abuse shield‖ rule:
a) Evidence to prove that the alleged victim engaged in other sexual behavior; and b)
A STATEMENT IS: Evidence offered to prove the sexual predisposition of the alleged victim (Riano, p. 367
1. An oral or written assertion or citing Sec. 30 of the Rule on Examination of a Child Witness)
2. A non-verbal conduct of a person, if it is intended by him or her as an assertion

b. Civil cases
INDEPENDENTLY RELEVANT STATEMENTS
Evidence of the moral character of a party in a civil case is admissible only when
An out of court declaration while having certain characteristics of hearsay evidence are not pertinent to the issue of character involved in the case. (Rule 130, Sec. 54[b])
actually cases of hearsay but are original evidence.
General Rule: The moral character of a party to a civil case is not a proper subject of
These are statements which are relevant independently, whether they are true or not. It is also inquiry.
called as he apparent hearsay.
Exception: In cases where, because of the nature of the action, the character of a party
4blue95: it is merely presenting the tenor of the statement and not the truth or veracity of such
becomes a matter in issue.
statements like in LIBEL cases whereby X declares that ― Y is prostitute‖, such statement is not
excluded from record since such is an original evidence for libel, which to wit will be shown to
prove that such statement declared is libelous and not to prove that Y is prostitute.

4blue95: NEWSPAPER CLIPPINGS can be proved whereby accused admitted his guilt or c. Criminal and civil cases
participation, it is admissible in evidence regardless of truth or falsity of such.
Evidence of the good character of a witness is not admissible until such character has
been impeached. (Rule 130, Sec. 54[c])

Two classes of Independently Relevant Statement In all cases in which evidence of character or trait of character of a person is admissible,
proof may be made by testimony as to reputation or by testimony in the form of an
1. Those statements which are the very fact in issue; opinion. On crossexamination, inquiry is allowable into relevant specific instances of
2. Those statements which are circumstantial evidence of the fact in issue. It conduct. (Rule 130, Sec. 54, second par.)
includes the following:
a. Statement of a person showing his state of mind, that is, his mental condition,
knowledge, belief, intention, ill will and other emotions;
b. Statements of a person which show his physical condition as illness and the like;
c. Statements of a person from which an inference may be made as to the state of
mind of another, that is knowledge, belief, motive, good faith/bad faith of the
latter;
d. Statements which may identify the date, place and person in question;
e. Statements showing the lack of credibility of a witness.
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HEARSAY RULE
EXCEPTIONS TO THE HEARSAY RULE

Hearsay are evidences which is NOT FOUNDED upon Personal knowledge of the witness. 1.Dying Declaration (NOT COVERED CIVIL CASES)
The reason for the exclusion of hearsay evidence is that the party against whom the
hearsay testimony is presented is deprived of the right or opportunity to cross-examine The ante mortem statements made by a person after the mortal wound has been inflicted under
the person to whom the statements are attributed. Moreover, the court is without the belief that death is certain, stating the facts concerning the cause of and the circumstances
opportunity to test the credibility of hearsay statements by observing the demeanor of the surrounding the attack.
person who made them. (People of the Philippines v. Victor P. Padit, G.R. No. 202978,
2016) It applies to any case where DEATH of the DECLARANT is the subject of the inquiry.

Requisites:
The personal knowledge of a witness is a substantive prerequisite for accepting
testimonial evidence that establishes the truth of a disputed fact. The rule excluding 1. That death is imminent and the declarant is conscious of that fact;
hearsay as evidence is based upon serious concerns about the trustworthiness and 2. That the declaration refers to the cause and the surrounding circumstances of
reliability of hearsay evidence due to its not being given under oath or solemn affirmation such death;
and due to its not being subjected to cross-examination by the opposing counsel to test the 3. That the declaration relates to the facts which the victim is competent to testify
perception, memory, veracity and articulateness of the out-of-court declarant or actor to(IN WRITING OR NOT and it may be SIGNED OR NOT.;
upon whose reliability the worth of the outof-court statement depends. (Patula v. People, 4. That the declaration is offered in a case wherein the declarant‘s death is subject
G.R. No. 164457, 11 April 2012) of the inquiry(the victim necessarily must have died);
5. That the statement is COMPLETE IN ITSELF. (People vs. De Joya, 230 SCRA
343) To be complete in itself does not mean that the declaration must recite
everything that constituted the res gestae of the subject of his statement, but that
his statement of any given fact should be a full expression of all that he intended
Hearsay evidence is inadmissible except as otherwise provided in these Rules. to say as conveying his meaning in respect of such fact.
A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross- Reason for admission
examination concerning the statement, and the statement is:
1. necessity – because the declarant‘s death renders impossible his taking the
(a) Inconsistent with the declarant‘s testimony and was given under oath subject to the witness stand.
penalty of perjury at a trial, hearing or other proceeding, or in a deposition 2. Trustworthiness – Maxim: truth sits on the lips of the dying man. At the point of
death, every motive for falsehood is silenced. The mind is induced by the most
(b) Consistent with the declarant‘s testimony and is offered to rebut an express or implied powerful consideration to speak the truth.
charge against the declarant of recent fabrication or improper influence or motive; or

(c) One of identification of a person made after perceiving him or her (Rule 130, Sec. 37) 4blue95:There must be a settled, hopeless expectation that DEATH is at hand. It is sufficient
that he believed himself in imminent danger of death at the time of such declaration.
Any evidence is hearsay if its probative value is not based on the personal knowledge of
the witness, but on the knowledge of some other person not on the witness stand. Determination of consciousness of impending death:
(Regalado 2008 ed.)
1. utterances;
2. circumstances – that at the time of making the declaration, the declarant did not
expect to survive the injury from which he actually died.
Elements of Hearsay 3. actual character and seriousness of his wounds;
4. by his conduct.
1. There must be an out-of-court statement, whether oral or written, or a conduct intended
as an assertion, and
2. The statement made out of court is repeated and offered by the witness to prove the 2023 Note: A dying declaration is NOT considered confidential communication between
truth of the matters asserted in the statement. spouses (U.S. v. Antipolo, G.R. No. L-13109, 1918). Examples: ‗Tabangi ko Pre, gipusil ko ni
kapitan,‘ meaning ‗Help me, Pre, I was shot by the captain.‘ –> dying declaration (Marturillas
v. People, G.R. No. 163217, 2006).
Form of Hearsay Evidence It may be verbal, in writing or even non-verbal conduct.
Intervening Time is Immaterial

There must be a settled, hopeless expectation that death is at hand. It is sufficient that the
declarant believed himself to be in imminent danger of death at the time of such
Failure to object to hearsay evidence declaration. But death need not follow soon; statements made during a 7-day interval
between stabbing and the victim‘s death were held to be a dying declaration (People v.
Consequently, if a party does not object to the hearsay evidence, the same is admissible, as a Rarugal, G.R. No. 188603, 2013).
party can waive his right to cross-examine. However, it has also been held that hearsay It is the belief in impending death and not the rapid succession of death in point of fact
evidence not objected to may be admissible but, whether objected to or not, has no probative that renders the dying declaration admissible (People v. Bautista, G.R. No. 11148, 1997)
value and, as opposed to direct primary evidence, the latter always prevails. (Regalado 2008 ed. 4blue 95:A dying declaration may be oral or written or made by signs which could be
citing People v. Ola, G.R. No. L-47147, 1987) interpreted and testified to by a witness thereto.

Dying declarations are Admissible in Both Civil and Criminal Cases

The former rule was that dying declarations were admissible only in criminal
Hearsay Statements may be the basis of Probable Cause
prosecutions for homicide, murder, or parricide wherein the declarant is the victim. As
amended, the rule now provides for such admissibility in any case as long as requisites
Probable cause can be established with hearsay evidence, as long as there is substantial basis
concur. (Regalado 2008 ed.)
for crediting the hearsay. Hearsay evidence is admissible in determining probable cause in a
preliminary investigation because such investigation is merely preliminary and does not finally
Purposes for Admitting Dying Declaration:
adjudicate rights and obligations of parties. (Estrada v. Ombudsman, G.R. No. 212140-41,
1. To identify the accused or
2015)
2. To show the cause of death or
3. To show the circumstances under which the assault was made upon him.

4blue95:Dying declarations favorable to the accused are admissible.

Hearsay Statements may be considered in an Amparo Proceeding
4blue95:Dying declaration may also be regarded as part of the RES GESTAE as they were
Though hearsay evidence is generally considered inadmissible under the rules of evidence, made soon after the starting occurrence without the opportunity for fabrication or concoction.
such may be considered in a writ of amparo proceeding if required by the unique circumstances
of the case. It is the totality of the obtaining situation that must be taken into consideration to 4blue95:Dying declaration is not considered a confidential communication between spouses.A
determine if a petitioner is entitled to a writ of amparo .Clearly, and based on the totality of dying declaration may be attacked on the ground that any of the requisites for its admissibility
obtaining circumstances, X and her children were the subject of surveillance because of their are not present and the same may be impeached at the same manner as the testimony of any
relationship with a suspected member of the NPA, creating a real threat to their life, liberty, or other unless of the stand.
security. (Sanchez v. Darroca, G.R. No. 242257, 2019)
2023 notes: If answer is that he did not know that he was going to die and shows that his
identification of person who stabbed him was not made under the consciousness of impending
death. Hence, the identification is not admissible as a dying declaration (Pp v. Dominguez)AS
SUCH, if X says that Dela Cruz stabbed me and he died. And it turned out there are 6 persons
with the family name of Dela Cruz then such statement is not admissible since it has no
particularity as to who among the dela cruzes stabbed X.
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2.STATEMENT of Decedent or Person (of Unsound Mind)

In an action:

a. Against an executor or administrator or other representative of a deceased person or

b.Against a person of unsound mind

Upon a claim or demand against the estate of such deceased person or against such
person of unsound mind, Where a: Party or Assignor of a party or A person in whose
behalf a case is prosecuted TESTIFIES on a matter of fact occurring before the death of
the deceased or before the person became of unsound mind, Any statement of the
deceased or the person of unsound mind, may be received in evidence if:
The statement was made upon the personal knowledge of the deceased or person of
unsound mind
At a time when the matter had been recently perceived by him or her and While his or her
recollection was clear.
Such statement, however may be inadmissible if made under circumstances indicating its
lack of TRUSTWORTHINESS (Rule 130, Sec. 39)

2023 Note: The previous version of this provision was the former Rule 130, Sec. 23 on
disqualifications by reason of death or insanity of adverse party (Dead man‘s rule)

The former Dead Man‘s rule has now been superseded.

The former Dead Man‘s rule prohibited the survivor from testifying against the deceased
or person of unsound mind; the Dead Man‘s Statute put the two parties on equal footing:
Where death has sealed the lips of the dead, the law seals the lips of the living.
BUT now, a party, a party‘s assignor or a person in whose behalf a case is being
prosecuted in an action demanding or claiming against the executor, administrator or
other representative of the deceased or the person of unsound mind, can now TESTIFY
on a matter of fact occurring before the death of the deceased or before the person
became of unsound mind.
To minimize however the danger of injustice to the decedent‘s estate or person of
unsound mind, the (otherwise hearsay) statement of the deceased or person of unsound
mind may be admitted, so long as the statement was made upon the personal knowledge
of the deceased or person of unsound mind, at the time when the matter had been recently
perceived by him or her and while his or her recollection was clear, and there are no
circumstances indicating its lack of trustworthiness.

3.Declaration against interest

The declaration made by a person deceased, or unable to testify, against the interest of the
declarant, if the fact asserted in the declaration was at the time it was made so far contrary to
declarant‘s own interest, that a reasonable person in his or her position would not have made
the declaration unless he or she believed it to be true, may be received in evidence against
himself or herself or his or her successors in interest and against third persons.

A statement tending to expose the declarant to criminal liability and offered to exculpate the
accused is not admissible unless corroborating circumstances clearly indicate trustworthiness of
the statement (Rule 130, Sec. 40)

4BLUE 95 Note: The second sentence of this rule is an addition to the old rule concerning
declarations against interest

Reasons for its admission

1. Necessity – such declarations are the only mode of proof available.

2. Trustworthiness – persons do not make statements that are disadvantageous to
themselves without substantial reason to believe that the statements are true.
Self-interest induces men to be cautions in saying anything against themselves.
In other words, we can safely trust a man when he speaks against his interest.

Requisites for declarations against interest:

1. Declarant must not be available to testify due to death, mental incapacity, or physical
incompetence, or his being outside the territorial jurisdiction of the country if exact
whereabouts are unknown.
2. The declaration must concern a fact cognizable by the declarant.
3. The circumstances must render it improbable that a motive to falsify existed. (Fuentes
vs. CA, G.R. No. 111692, 1996)

Scope The declaration against interest includes all kinds of interests such as pecuniary,
proprietary, or penal interests.

Kinds of Declarations against Interests:

1. Declaration against Pecuniary Interests - those which may bar in whole or in part the
declarant‘s interests or which may give rise to a monetary claim against him.
2. Declaration against Proprietary Interests - those which are at variance with the
declarant‘s property interests
3. Declaration against Penal Interests - those which put the declarant at the risk of
prosecution.

The declarant must realize at the very time of making the declaration that his declaration is
against his interest, that a reasonable man in his position would not have made the declaration
unless he believed it to be true.

It is essential that at the time of the statement, the declarant‘s interest affected thereby should
be actual/real/apparent not merely contingent, future or unconditional; otherwise, the
declaration would not in reality be against interest.

If the declarant is still alive and available as a witness, his declaration would be admissible only
as an admission against himself or privies or if he testifies, his statement against him as a prior
inconsistent statement in some instances.
 4

4.Act or declaration about pedigree (sec 39) 6.Common reputation

According to 4blue95, this is needed in suits for recognition. The following may be established by common reputation:

The word PEDIGREE includes relationship family genealogy, birth, marriage, death, the dates 1. matters of public interest more than 30 yrs.old;
when and the places where these facts occurred, and the names of the relatives. It embraces also 2. matters of general interest more than 30 years old;
facts of family history intimately connected with pedigree. 3. matters respecting marriage or moral character and related facts;
4. individual moral character.
Reasons for Admissibility

Declarations in regard to pedigree, although hearsay, are admitted on the principle that they are Common Reputation – is the definite opinion of the community in which the fact to be proved
natural expressions of persons who must know the truth. Pedigree testimony is admitted is known or exists. It means the general or substantially undivided reputation, as distinguished
because it is the best that the nature of the case admits and because greater evil might arise from a partial or qualified one, although it need no be unanimous.
from the rejection of such proof than from its admission. (People v. Alegado, G.R. No. 93030-
31, 1991) As a general rule, the reputation of a person should be that existing in the place of his residence
it may also be that existing in the place where he is best known.
Requisites:
1. The actor/declarant is dead or unable to testify; EVIDENCE OF NEGATIVE GOOD REPUTE
2. The actor/declarant must be a relative by birth, adoption, marriage or, in the absence
thereof, the actor/declarant was so intimately associated with the family of another person Where the foundation proof shows that the witness was in such position that he would have
(whose pedigree is in question) as to be likely to have accurate information concerning heard reports derogatory to one‘s character, the reputation testimony may be predicated ion the
the latter‘s pedigree; absence of reports of bad reputation or on the fact that the witness had heard nothing against
3. The act or declaration must have been made before the controversy occurred; and the person.
4. The relationship between the actor/ declarant and the person whose pedigree is in
question must be shown by evidence other than such act or declaration. What may be Established by Common Reputation:
1. Boundaries of or customs affecting lands in the community
2. Reputation as to events of general history important to the community
3. Reputation respecting marriage
Rule on Proving Evidence of Relationship for Establishing Pedigree 4. Reputation respecting moral character

General Rule: Where the party claiming seeks recovery against a relative common to both Requisites for Admissibility of Common Reputation as to events of general history important to
claimant and declarant, but not from the declarant himself or the declarant's estate: The the community:
relationship of the declarant to the common relative may not be proved by the declaration 1. The facts must be of public or general interest;
itself. There must be some independent proof of this fact. 2. The reputation must have been formed among a class of persons who were in a
position to have some sources of information and to contribute intelligently to the
Exception: [Where the party seeks] to reach the estate of the declarant himself and not formation of the opinion; and
merely to establish a right through his declarations to the property of some other family 3. The reputation must have been existing previous to the controversy.
member:
Requisites for Admissibility of Common Reputation Respecting Marriage:
The declaration itself will suffice. (Tison v. CA, G.R. No 121027, 1997) 1. The common reputation must have been formed previous to the controversy; and
2. The reputation must have been formed among a class of persons who were in a
In a marriage nullity case, the lack of personal interview of the respondent does position to have some sources of information and to contribute intelligently to the
not render hearsay the psychological report (CamachoReyes v. Reyes, G.R. No. formation of the opinion.
185286, 2010).
Requisites for Admissibility of Common Reputation Respecting Moral Character:
1. That it is the reputation in the place where the person in question is best known; and
2. That it was formed previous to the controversy. (People v. Alegado, G.R. No. 93030-
5.Family reputation or tradition regarding pedigree (sec 41) 31, 1991)

The reputation or tradition existing in a family previous to the controversy, in respect to the
pedigree of any one of its members, may be received in evidence if the witness testifying
thereon be also a member of the family, either by consanguinity, affinity or adoption. Entries in
family bibles or other family books or charts, engraving on rings, family portraits and the like,
may be received as evidence of pedigree. (Rule, 130 Sec. 42)

7.Learned Treatises

In order that a published treatise, periodical or pamphlet on a subject of law, history, science or
art may be admissible, it is necessary either.

1. That the court can take judicial notice of it; or

2. a witness, expert in the subject, testifies the writer of the statement in the
treatise, periodicals, or pamphlet is recognize in his profession or calling as
expert in the subject.

Reasons for its admission

1. Necessity – even if such person is legally procurable, the expense is frequently

disproportionate.
2. Trustworthiness – learned writers have no motive to misrepresent. He is aware
that his work will be carefully scrutinized by the leaned members of his
profession and that he shall be subject to criticisms an ultimately rejected as an
authority on the subject matter if his conclusions are found to be invalid.
 5

8.Part of RES GESTAE People v. Peralta, 237 SCRA 218 (1994)

RES GESTAE – literally means thing done; it includes the circumstances, facts, and Facts: Atanacia Ramos had a daughter Rosita. Rosita married Domiciano Peralta. They had a
declarations incidental to the main fact or transaction necessary to illustrate its character and daughter Siony. On morning, Siony came to Atanacia at her house frantically told her that
also includes acts, words or declaration which are closely connected therewith as to constitute Domiciano was strangling Rosita. They went to the Peralta home and found Rosita dead.
part of the transaction. Domiciano was not there. They immediately reported the matter to the police, who eventually
arrested the Domiciano. At the preliminary investigation, Siony executed a sworn statement
implicating her father. Domiciano was charged with Parricide. At the trial Atanacia testified as
to Siony‘s declaration. However, Siony testified for her father and said that though she saw
someone strangling her mother, she did not see who it was. After the defense rested, the
prosecution presented the investigating judge who testified as to the regularity of the conduct of
TWO TYPES OF RES GESTAE the preliminary investigation. TC convicts.

Held: The statement Siony made to her grandmother when she rushed to inform her of her
father's attack on her mother was part of the res gestae. Res gestae means the "thing done." It
1. SPONTANEOUS STATEMENTS – Statements made by a person while a
refers to those exclamations and statements made by either the participants, victims or
startling occurrence is taking place or immediately prior or subsequent thereto
spectators to a crime immediately before, during or immediately after the commission of the
with respect to the circumstances thereto;
crime, when the circumstances are such that the statements were made as a spontaneous
reaction or utterance inspired by the excitement of the occasion and there was no opportunity
REQUISITES OF ADMISSIBILITY OF SPONTANEOUS STATEMENTS for the declarant to deliberate and to fabricate a false statement. Siony rushed to Atanacia
immediately upon seeing her father strangling her mother to death.
1. There must be a startling occurrence;
2. The statement must be made before the declarant had the time to contrive or Her spontaneous declaration to Atanacia was part of the res gestae and is assumed to preclude
devise a falsehood; and the probability of premeditation of fabrication. Since the utterance was made under the
3. The statement must concern the occurrence in question and its immediate immediate and uncontrolled domination of the senses rather than reason and reflection, and
attending circumstances during the brief period when consideration of self-interest could not have been fully brought to
bear, the utterance may be taken as expressing Siony's real belief as to the facts just observed
by her.
Grounds for admissibility of spontaneous statement
4BLUE 95. The interval of time between the startling occurrence and the statement depends
a.Necessity – natural and spontaneous utterances are more convincing than the upon the circumstances; but such statement must have been made while the declarant was
testimony of the same person on the stand; under the immediate influence of the startling occurrence, hence it is generally required to have
b.Trustworthiness – the statement is made instinctively. The facts speaking thru the been made immediately prior or subsequent to the event. (Regalado, 2008 ed.)
party not the party talking about the facts.
4BLUE 95. If the statement was made under the influence of a startling event and the declarant
did not have the opportunity to concoct or contrive a story, even if made 9 hours after the
It is essential that they should have been caused by something startling enough to killing, the statement is admissible as part of res gestae. (Regalado citing People v. Berame,
produce nervous excitement. The declarant must be a witness to the event to which G.R. L27606, 1976)
the utterance relates. He must have personally observed the fact. What the law
distrusts is not the ―after speech‖ but ―after thought‖.
Q: Distinguish clearly but briefly between hearsay evidence and opinion evidence. (2004 Bar)
A: Hearsay evidence consists of testimony that is not based on personal knowledge of the
2. VERBAL ACTS – Statements accompanying an equivocal act material to the person testifying, (Sec. 36, Rule 130, now Sec. 37, Rule 130), while opinion evidence is expert
issue, and giving it a legal significance. evidence based on the personal knowledge skill, experience, training or education of the person
testifying (Sec. 49, Rule 130, now Sec. 52, Rule 130) and evidence of an ordinary witness on
limited matters. (Sec. 50, Rule 130, now Sec. 53, Rule 130)
REQUISITES OF ADMISSIBILITY OF VERBAL ACTS

1. Act or occurrence characterized must be equivocal; Q: What are the exceptions to hearsay rule? (1999 Bar)
2. Verbal acts must characterize or explain the equivocal act; A: The exceptions to the hearsay rule are: dying declaration, statement of decedent or person of
3. Equivocal act must be relevant to the issue; and unsound mind, declaration against interest, act or declaration about pedigree, family reputation
4. Verbal acts must be contemporaneous with equivocal act (Talidano v. Falcom or tradition regarding pedigree, common reputation, part of the res gestae, records of regularly
Maritime & Allied Services, G.R. No. 172031, 2008) conducted business activity, entries in official records, commercial lists and the like, learned
treatises, and testimony or deposition at a former proceeding and residual exception. (Secs. 37
to 47, Rule 130, now Secs. 38 to 50, Rule 130)
2023 notes:Age of a young girl was proven by testimonies of the girl herself, her
aunt and the judge based on her appearance, SC held that such evidence is not
sufficient, since the age of victim being essential in statutory rape must be
indubitably proved by the prosecutions .Conviction based on oral testimony as to Q: AAA, a ten (10)-year old minor, was sleeping inside her room when she was awakened by
age of victim by victim herself, aunt or judge is erroneous. her uncle, Mr. G, who was reeking of alcohol and was already on top of her. After Mr. G
succeeded in having carnal knowledge of AAA, the former immediately left the latter's room.
Thereafter, AAA rushed into the room of her mother, MMM, and spontaneously and frantically
reported the incident. Eventually, Mr. G was arrested and was indicted for the crime of Rape.
RES GESTAE in DYING During trial, MMM was presented as a witness to testify on what AAA reported to her and
AAA's gestures and disposition at that time. Mr. G's counsel objected to MMM's testimony on
Connection with a homicidal act DECLARATIONS the ground that it is hearsay evidence. The prosecutor countered that the subject of MMM's
testimony may be admitted as an independently relevant statement and as part of the res gestae.
May be made by the killer himself after or Can be made only by the victim
during the killing OR that of a 3rdd person (a) May MMM's testimony be admitted on the ground that it constitutes an independently
relevant statement? Explain. (2019 Bar)
May precede, accompany or be made after Made only after the homicidal attack had
A: Yes. Under the doctrine of independently relevant statements, regardless of their truth or
the homicidal attack was committed been committed
falsity, the fact that such statements have been made is relevant. The hearsay rule does not
apply, and the statements are admissible as evidence. Evidence as to the making of such
Justification in the spontaneity of the Trustworthiness based upon its being given
statement is not secondary but primary, for the statement itself may constitute a fact in issue or
statement in awareness of impending death.
be circumstantially relevant as to the existence of such facts. Thus, MMM‘s testimony can be
admitted.
(b) May AAA's statement to MMM be admitted on the ground of res gestae? Explain. (2019
VERBAL ACTS SPONTANEOUS Bar) A: Yes. Res gestae refers to the circumstances, facts, and declarations that grow out of the
main fact and serve to illustrate its character and are so spontaneous and contemporaneous with
STATEMENTS the main fact as to exclude the idea of deliberation and fabrication.

The res gestae is the equivocal act The res gestae is the startling occurrence

Verbal act must be contemporaneous with or Statements may be made prior, or Q: Maximo filed an action against Pedro, the administrator of the estate of deceased Juan, for
must accompany the equivocal act immediately after the staring occurrence. the recovery of a car which is a part of the latter‘s estate. During the trial, Maximo presented
witness Mariano who testified that he was present when Maximo and Juan agreed that the latter
would pay a rental of P20,000 for the use of Maximo‘s car for one month after which Juan
should immediately return the car to Maximo. Pedro objected to the admission of Mariano‘s
testimony. If you were the judge, would you sustain Pedro‘s objection? Why?
A: No, the testimony is admissible in evidence because witness Mariano who testified as to
what Maximo and Juan, the deceased person agreed upon, is not disqualified to testify on the
agreement. Those disqualified are parties or assignors of the parties to a case, or persons in
whose behalf a case is prosecuted, against the administrator or Juan‘s estate, upon a claim or
demand against his estate as to any matter of fact occurring before Juan‘s death. (Sec. 23, Rule
130, now Sec. 39, Rule 130)
 6

Q: While passing by a dark uninhabited part of their barangay, PO2 Asintado observed Dying Declaration
shadows and heard screams from a distance. PO2 Asintado hid himself behind the bushes and
saw a man beating a woman whom he recognized as his neighbour, Kulasa. When Kulasa was Q: Requisites of Dying Declaration (1998 Bar)
already in agony the man stabbed her and she fell on the ground. The man hurriedly left A: The requisites for the admissibility of a dying declaration are: (a) the declaration is made by
thereafter. PO2 Asintado immediately went to Kulasa‘s rescue. Kulasa who was then in a state the deceased under the consciousness of his impending death; (b) the deceased was at the time
of hysteria, kept mentioning to PO2 Asintado ―Si Rene, gusto akong patayin! Sinaksak niya competent as a witness; (c) the declaration concerns the cause and surrounding circumstances
ako!‖ When PO2 Asintado was about to carry her, Kulasa refused and said ―Kaya ko. of the declarant‘s death; and (d) the declaration is offered in a (criminal) case wherein the
Mababaw lang to. Habulin mo si Rene.‖ The following day, Rene learned of Kulasa‘s death declarant's death is the subject of inquiry. (People v. Santos, G.R. No. 94545, April 4, 1997)
and, bothered by his conscience, surrendered to the authorities with his counsel. As his
surrender was broadcasted all over media, Rene opted to release his statement to the press Q: Romeo is sued for damages for injuries suffered by the plaintiff in a vehicular accident.
which goes: ―I believe that I am entitled to the presumption of innocence until my guilt is Julieta, a witness in court, testifies that Romeo told her (Julieta) that he (Romeo) heard
proven beyond reasonable doubt. Although I admit that I performed acts that may take one‘s Antonio, a witness to the accident, give an excited account of the accident immediately after its
life away, I hope and pray that justice will be served in the right way. God bless us all. (Sgd.) occurrence. Is Julieta‘s testimony admissible against Romeo over proper and timely objection?
Rene‖ The trial court convicted Rene of homicide on the basis of PO2 Asintado‘s testimony, Why? (2002 Bar) A: No, Julieta‘s testimony is not admissible against Romeo, because while
Kulasa‘s statements, and Rene‘s statement to the press. On appeal, Rene raises the following the excited account of Antonio, a witness to the accident, was told to Romeo, it was only
errors: Romeo who told Julieta about it, which makes it hearsay.
(a) The trial court erred in giving weight to PO2 Asintado‘s testimony, as the latter did not have
personal knowledge of the facts in issue, and violated Rene‘s right to due process when it
considered Kulasa‘s statements despite lack of opportunity for her cross-examination. A: The
trial court did not err in giving weight to PO2 Asintado‘s testimony. While a witness can only Q: Immediately before he died of gunshot wounds to his chest, Venancio told the attending
testify as to those facts which he has personal knowledge, the Rules provide that a statement physician; in a very feeble voice, that it was Arnulfo, his co-worker, who had shot him
made under the influence of a startling event witnessed by the person who made the declaration Venancio added that it was also Arnulfo who had shot Vicente, the man whose cadaver was
before he had time to think and make up a story, or to concoct or contrive a falsehood, or to lying on the bed beside him. In the prosecution of Arnulfo for the criminal killing of Venancio
fabricate an account, and without any undue influence in obtaining it, aside from referring to and Vicente, are all the statements of Venancio admissible as dying declarations? Explain your
the event in question or its immediate attending circumstances, is an exception being part of res answer. (2017 Bar)
gestae. (Belbis, Jr., v. People, G.R. No. 181052, November 14, 2012) In the case, the A: No. Not all statements of Venancio are admissible as dying declarations. A dying
statements made by PO2 Asintado constitutes part of res gestae since the same were made declaration is a statement made under the consciousness of an impending death (Sec. 37, Rule
without any opportunity to fabricate and while a startling occurrence was actually taking place. 130, now Sec. 38, Rule 130). It may be received in any case wherein his death is the subject of
In addition, the statement of PO2 Asintado may fall within the purview of the doctrine of inquiry, as evidence of the cause and surrounding circumstances of such death. In this case,
independent relevant statement, where only the fact that such statements were made is relevant, presuming there is evidence that Venancio was conscious of his impending death when he
and the truth and falsity thereof is immaterial. (People v. Malibiran, G.R. No. 178301, April 24, made his statement that it was Arnulfo who shot him, said statement may be considered as a
2009) On the other hand, Kulasa‘s statements are also admissible as part of res gestae since the dying declaration which is admissible in evidence as an exception to the hearsay rule. The
same were made under the influence of a startling event and without any opportunity to concoct degree and seriousness of the gunshot wounds sustained by Venancio and the fact that death
or devise a falsehood. supervened thereafter may constitute substantial evidence of his consciousness of his
(b) The trial court erred in holding that Rene‘s statement to the press was a confession which, impending death. (People v. Tanaman, G.R. No. 71768, July 28, 1987)
standing alone, would be sufficient to warrant a conviction. Resolve. (2014 Bar) While Venancio‘s statement about the death of Vicente may not be considered as a dying
A: The trial court did not err in holding that Rene‘s statement to the press is a confession. declaration, it may still be admitted in evidence as part of res gestae, which is also an exception
Rene‘s confessions to the media were properly admitted because statements spontaneously to the hearsay rule (Sec. 42, Rule 130, now Sec. 44, Rule 130). Venancio‘s statement about the
made by a suspect to news reporters on a televised interview are deemed voluntary and are killing of Vicente may be considered to have been made after the occurrence of a startling
admissible in evidence. (People v. Hipona, G.R. No. 185709, February 18, 2010) occurrence. Thus, it may be admitted in evidence. Family reputation or tradition regarding
pedigree

Q: A foreign dog trained to sniff dangerous drugs from packages, was hired by FDP Q: Linda and spouses Arnulfo and Regina Ceres were co-owners of a parcel of land. Linda died
Corporation, a door to door forwarder company, to sniff packages in their depot at the intestate and without any issue. Ten (10) persons headed by Jocelyn, claiming to be the
international airport. In one of the routinary inspections of packages waiting to be send to the collateral relatives of the deceased Linda, filed an action for partition with the RTC praying for
United States of America (USA), the dog sat beside one of the packages, a signal that the the segregation of Linda‘s ½ share, submitting in support for their petition the baptismal
package contained dangerous drugs. Thereafter,the guards opened the package and found two certificates of seven of the petitioners, a family bible belonging to Linda in which the names of
(2) kilograms of cocaine. The owner objected of the package was arrested and charges were the petitioners have been entered, a photocopy of the birth certificate of Jocelyn, and a
filed against him. During the trial, the prosecution, through the trainer who was present during certification of the local civil registrar that its office had been completely razed by fire. The
the incident and an expert in this kind of field, testified that the dog was highly trained to sniff spouses Ceres refused partition on the following grounds: 1) the baptismal certificates of the
packages to determine if the contents were dangerous drugs and the sniffing technique of their parish priest are evidence only of the administration of the sacrament of baptism and they do
highly trained dogs was accepted worldwide and had been successful in dangerous drugs not prove filiation of the alleged collateral relatives of the deceased; 2) entry in the family bible
operations. The prosecution moved to admit this evidence to justify the opening of the package. is hearsay; 3) the certification of the registrar on non-availability of the records of birth does
The accused objected on the grounds that : (i) the guards had no personal knowledge of the not prove filiation; 4) in partition case where filiation to the deceased is in dispute, prior and
contents of the package before it was opened; (ii) the testimony of the trainer of the dog is separate judicial declaration of heirship in a settlement of estate proceedings is necessary; and
hearsay; and (iii) the accused could not cross-examine the dog. Decide. (2014 Bar) 5) there is need for publication as real property is involved. As counsel for Jocelyn and her co-
A: The objections of the accused should be overruled. An evidence is admissible when it is petitioners, argue against the objections of the spouses Ceres so as to convince the court to
relevant to the issue and is not excluded by the Constition, law or the rules (Sec 3, Rule 128). allow the partition. Discuss each of the five (5) arguments briefly but completely (2000 Bar)
Under Section 36, Rules 130 (now Sec. 22, Rule 130), a witness can testify only to those which A: 1. The baptismal certificate can show the filiation or prove pedigree. It is one of the other
he knows of his or her personal knowledge and derived from his or her own perception. The means allowed under the Rules of Court and special laws to show pedigree. (Trinidad v. Court
contention that the guards had no personal knowledge of the contents of the package before it of Appeals, G.R. No. 118904, April 20, 1998; Heirs of Ignacio Conti v. Court of Appeals, G.R.
was opened is without merit. The guards can testify as to the facts surround the opening of the No. 118464, December 21, 1998) 2. Entries in the family bible may be received as evidence of
package since they have personal knowledge of the circumstances thereof, being physically pedigree. (Sec. 40, Rule 130, now Sec. 42, Rule 130) 3. The certification by the civil registrar
present at the time of its discovery. of the non-availability of records is needed to justify the presentation of secondary evidence,
On the other hand, the testimony of the trainer of the dog is not hearsay based on the following which is the photocopy of the birth certificate of Jocelyn. (Heirs of Conti v. Court of Appeals,
grounds: G.R. No. 118464, December 21, 1998) REMEDIAL Law 112 a. Declaration of heirship in a
a. He has personal knowledge of the facts in issue, having witnessed the same; settlement proceeding is not necessary. It can be made in the ordinary action for partition
b. Hearsay merely contemplates an out-ofcourt declaration of a person which is being offered wherein the heirs are exercising the right pertaining to the decedent, their predecessor-
to prove the truthfulness and veracity of the facts asserted therein; ininterest, to ask for partition as co-owners. (Id.) 4. Even if real property is involved, no
c. He is an expert witness, hence, his testimony may constitute an exception to the hearsay rule; publication is necessary, because what is sought is the mere segregation of Linda‘s share in the
d. The accused has the opportunity to crossexamine him; and e. Testimony of a witness as to property. (Sec. 1, Rule 69) Part of the res gestae
statements made by nonhuman declarants does not violate the rule against hearsay. The law
permits the so-called ―non-human evidence‖ on the ground that machines and animals, unlike Q: Dencio barged into the house of Marcela, tied her to a chair and robbed her of assorted
humans, lack a conscious motivation to tell falsehoods, and because the workings of machines pieces of jewelry and money. Dencio then brought Candida, Marcela‘s maid, to a bedroom
can be explained by human witnesses who are then subject to cross-examination by opposing where he raped her. Marcela could hear Candida crying and pleading; ―Huwag! Maawa ka sa
counsel. (City of Webster Groves v. Quick. 323 S.W. 2d 386 [Mo. 1959]; Buck v. State, 138 P. akin!‖ After raping Candida, Dencio fled from the house with loot. Candida then untied
2d 115 [Okla. 1943]; Herrera, 1999) Conversely, the accused may not argue that he cannot Marcela and rushed to the police station about a kilometer away and told Police Officer
cross-examine the dog as the Constitutional right to confrontation refers only to witnesses. As Roberto Maawa that Dencio had barged into the house of Marcela, tied the latter to a chair and
alluded, the human witnesses who have explained the workings of the non-human evidence is robbed her of her jewelry and money. Candida also related to the police officer that despite her
the one that should be cross-examined. Hence, the contention of the accused that the he could pleas, Dencio had raped her. The policemen noticed that Candida was hysterical and on the
not cross-examine the dog is misplaced. verge of collapse. Dencio was charged with robbery with rape. During the trial, Candida can no
longer be located. a. If the prosecutor presents Police Officer Roberto Maawa to testify on what
Candida had told him, would such testimony of the policemen be hearsay? Explain. (1999,
Q: The accused was charged with robbery and homicide. The victim suffered several stab 2009 Bar)
wounds. It appears that eleven (11) hours after the crime, while the victim was being brought to A: No. The testimony of the policemen is not hearsay. It is part of the res gestae. It is also an
the hospital in a jeep, with his brother and a policeman as companions, the victim was asked independently relevant statement. The police officer testified his own personal knowledge, not
certain questions which he answered, pointing to the accused as his assailant. His answers were to the truth of Candida‘s statement, i.e., that she told him, despite her pleas, Dencio has raped
put down in writing, but since he was in a critical condition, his brother and the policemen her.(People v. Gaddi, G.R. No. 74065, February 27, 1989)
signed the statement. Is the statement admissible as a dying declaration? (1999 Bar)
A: Yes. The statement is admissible as a dying declaration of the victim subsequently dies and b. If the police officer will testify that he noticed Candida to be hysterical and on the verge of
his answers were made under the consciousness of impending death (Sec. 37, Rule 130, now collapse, would such testimony be considered as opinion, hence, inadmissible? Explain. (2005
Sec. 38, Rule 130). The fact that he did not sign the statement point to the accused as his Bar) A:No. It cannot be considered as an opinion because he was testifying on what he actually
assailant, because he was in critical condition, does not affect its admissibility as a dying observed. The last paragraph of Sec. 50, Rule 130 (now Sec. 52, Rule 130) expressly provides
declaration. A dying declaration need not be in writing. (People v. Viovicente, G.R. No. that a witness may testify on his impressions of the emotion, behavior, condition or appearance
118707, February 2, 1998 of a person.
 7

9.Entries in the course of business (RECORDS OF REGULARLY CONDUCTED 10.Commercial lists and the like
Business Activity)
Evidence of statements of matters of interest to persons engaged in an occupation contained in
A memorandum, report, record or data compilation of acts, events, conditions, opinions or a list, register, periodical, or other published compilation is admissible as tending to prove the
diagnoses, made by writing, typing, electronic, optical or other similar means at or near the truth of any relevant matter so stated if that compilation is published for use by persons
time of or from transmission or supply of information – engaged in that occupation and is generally used and relied upon by them therein. (Rule 130,
a) By a person with knowledge thereof and Sec. 47)
b) Kept in the regular course or conduct of a business activity and
c) Such was the regular practice to make the memorandum, report, record or data Requisites for Admissibility:
compilation by electronic, optical or similar means 1. It is a statement of a matter of interest to persons engaged in an occupation;
d) All of which are shown by the testimony of the custodian or other qualified witnesses, 2. Such statement is contained in a list, register, periodical or other published
- is excepted from the rule of hearsay evidence (Rule 130, Sec. 45) compilation;
3. That compilation is published for the use of persons engaged in that occupation, and
Note: There are two persons covered by this exception, 4. That compilation is generally used and relied upon by persons in the same occupation
the entrant and the witness. (Rule 130, Sec. 47)
The entrant himself or herself is not required to be dead or unable to testify (which was
the requirement under the old version of the rule). T Examples:
he testimony of the custodian or the other qualified witnesses should be able to prove the 1. Trade journals
other requisites under this exception. 2. Table of mortality compiled by life insurance companies
3. Abstracts of title compiled by reputable title examining institutions or individuals
2023 notes: The counterpart provision in the Rules on Electronic Evidence is Rule 8. 4. Business directories

Requisites: 4BLUE 95 NOTE: A preliminary foundation must first be laid for such evidence showing that
1. that the entrant made the entry in his professional capacity or in the performance of a duty; such publications have been regularly prepared by a person in touch with the market and that
2. That the entry was made in the ordinary course of business or duty; they are generally regarded as trustworthy and relied upon.
3. The entries must have been made at or near he time of the transaction to which the relate;
4. The entrant must have been in a position to know the facts stated in the entries; Mere price quotations are not commercial lists. They are issued personally to the claimant, who
5. The entrant must be decease or unable to testify. requested for them from dealers of equipment similar to the ones lost at the collision of the two
vessels. These are not published in any list, register, periodical or other compilation on the
relevant subject matter. Neither are these market reports or quotations within the purview of
The law does not fix any precise moment when the entries should be made. It is sufficient if the commercial lists as these are not standard handbooks or periodicals, containing data of
entry was made within a reasonable period of time so that it may appear to have taken place everyday professional need and relied upon in the work of the occupation. (PNOC Shipping v.
while the memory of the facts was unimpaired. CA, G.R. No. 107518, 1998)

How regularly of the entries proved it may be proved by the form in which they appear in the A mere newspaper account with nobody testifying as to its accuracy, and which was not even a
corresponding book. commercial list, does not qualify under the Section 45 [now Section 47] of Rule 130. No
evidence was presented that the publication was regularly prepared by a person in touch with
the market and that it is generally regarded as trustworthy and reliable. At most, it is but an
analysis or opinion which carries no persuasive weight, as no sufficient figures to support it
were presented. It cannot be said that businessmen generally rely on news items such as this in
their occupation. Absent extrinsic proof of accuracy, these reports are not admissible. (Manila
Q: X was charged with robbery. On the strength of a warrant of arrest issued by the court, X
Electric Company v. Quisumbing, G.R. No. 127598, 2000)
was arrested by police operatives. They seized from his person a handgun. A charge for illegal
possession of firearm was also filed against him. In a press conference called by the police, X
Newspapers containing stock quotations are not admissible in evidence when the source of the
admitted that he had robbed the victim of jewelry valued at P500,000. The robbery and illegal
reports is available. With more reason, mere analyses or projections of such reports cannot be
possession of firearm cases were tried jointly. The prosecution presented in evidence a
admitted. Statement of matters contained in a periodical may be admitted only "if that
newspaper clipping of the report to the reporter who was present during the press conference
compilation is published for use by persons engaged in that occupation and is generally used
stating that X admitted the robbery. It likewise presented a certification of the PNP Firearms
and relied upon by them therein." (Manila Electric Company vs. Quisumbing, G.R. No.
and Explosive Office attesting that the accused had no license to carry any firearm. The
127598, 2000)
certifying officer, however, was not presented as a witness. Both pieces of evidence were
Reasons for its admission
objected to by the defense. (a) Is the newspaper clipping admissible in evidence against X?
1. Necessity – because of the usual unaccessibility of the persons responsible for
A: Yes, the newspaper clipping is admissible in evidence against X regardless of the truth or
the compilation of matters contained in a list, register, periodical or other
falsity of a statement, the hearsay rule does not apply and the statement may be shown where
published compilation and tremendous it would cause to the court if it would
the fact that it is made relevant. Evidence as to making of such statement is not secondary but
issue summons to these numerous individuals.
primary, for the statement itself may constitute a fact in issue or be circumstantially relevant as
2. Trustworthiness – they have no motive to deceive and they further realize that
to the existence of such fact. (Gotesco Investment Corporation v. Chatto, G.R. No. L-87584
unless the list, register, periodical or other published compilation are prepared
June 16, 1992)
with care and accuracy, their work will have no commercial or probative value.
(b) Is the certification of the PNP Firearm and Explosive Office without the certifying officer
testifying on it admissible in evidence against X? (2003 Bar)

A: Yes, the certification is admissible in evidence against X because a written statement signed 11..Testimony or deposition at a former proceeding
by an officer having the custody of an official record or by his deputy that after diligent search
The testimony or deposition of a witness deceased or out of the Philippines or who cannot, with
no record or entry of a specified tenor is found to exist in the records of his office, accompanied
due diligence, be found therein, or is unavailable or otherwise unable to testify, given in a
by a certificate as above provided, is admissible as evidence that the records of his office
former case or proceeding, judicial or administrative, involving the same parties and subject
contain no such record of entry. (Sec. 28, Rule 132)
matter, may be given in evidence against the adverse party who had the opportunity to cross-
examine him or her (Rule 130, Sec. 49)

Requisites:
1. The witness whose testimony is offered in evidence is: a. Deceased b. Unable to testify
c. Out of the Philippines d. Cannot with due diligence be found in the Philippines, or e.
Unavailable;
2. His testimony or deposition was given in a former case or proceeding, judicial or
administrative, between the same parties or those representing the same interests (identity
of parties);
3. The former case involved the same subject as that in the present case, although on
different causes of action (identity of issues); and
4. The adverse party had an opportunity to cross-examine the witness in the former case.
(Riano, 2019 ed.)

While a former testimony or deposition appears under the Exceptions to the Hearsay Rule, the
classification of former testimony or deposition as an admissible hearsay is not universally
conceded. A fundamental characteristic of hearsay evidence is the adverse party‘s lack of
opportunity to cross-examine the out-of-court declarant. However, Section 49, Rule 130
explicitly requires, inter alia, for the admissibility of a former testimony or deposition that the
adverse party must have had an opportunity to cross-examine the witness or the deponent in the
prior proceeding. This rule contemplates a different kind of cross-examination, whether actual
or a mere opportunity, whose adequacy depends on the requisite identity of issues in the former
case or proceeding and in the present case where the former testimony or deposition is sought
to be introduced. (Republic v. Sandiganbayan, G.R. No. 152375, 2011).

Laying the Proper Predicate is Necessary Before the former testimony or deposition can be
introduced in evidence, the proponent must first lay the proper predicate therefor, i.e., the party
must establish the basis for the admission of the deposition in the realm of admissible evidence.
(Riano, 2019 ed.)
 8

12.Entries in official records. Q: At Nolan‘s trial for possession and use of the prohibited drugs, known as ―shabu‖ his
girlfriend Kin, testified that on a particular day, she would see Nolan very prim and proper,
alert and sharp, but that three days after, he would appear haggard, tired and overly nervous at
the slightest sound he would hear. Nolan objects to the admissibility of Kim‘s testimony on the
REQUISITES FOR ADMISSIBILITY OF OFFICIAL ENTRIES ground that Kim merely stated her opinion without having been first qualified as expert
witness. Should you as a judge exclude the testimony of Kim? (1994 Bar)
1. that it was made by a public officer by another person specially enjoined by law
to o so; and A: No, the testimony of Kim should not be excluded. Even though Kim is not an expert
2. that it was made by a public officer in the performance of his duty, or by another witness, Kim may testify on her impressions of the emotion, behavior, condition or appearance
person in the performance of a duty specially enjoined by law; and of a person. (Sec. 50, Rule 130 now Sec. 52, Rule 130) Character evidence
3. the public officer of the other person had sufficient knowledge of the facts by
him stated, which must have been acquired by him personally or through official
information.
Q: D was prosecuted for homicide for allegedly beating up V to death with an iron pipe. (a)
May the prosecution introduce evidence that V had a good reputation for peacefulness and non-
Reasons for its admission violence? Why? A: The prosecution may introduce evidence of the good or even bad moral
character of the victim if it if it tends to establish in any reasonable degree the probability or
1. Necessity – practical impossibility of requiring the official‘s attendance as a improbability of the offense charged. (Sec. 54[a][1], Rule 130) (b) May D introduce evidence
witness to testify to the innumerable transactions occurring in the course of his of specific violent acts by V? Why? (2002 Bar)
duty.
2. Trustworthiness – there is a presumption of regularity in the performance of A: Yes, D may introduce evidence of specific violent acts by V. Evidence that one did or did
official duty. not do a certain thing at one time is not admissible to prove that he did or did not do the same
or a 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. (Sec. 34, Rule
Probative value: only facie evidence of the fact state therein. 130, now Sec. 35, Rule 130)
It is not essential for the officer making the official statement to have a personal knowledge of
the facts stated by him, it being sufficient that the official information was acquired by officers
who prepared the reports from person who not only have personal knowledge of the facts stated Q: In a prosecution for murder, the prosecutor asks accused Darwin if he had been previously
but must have the duty to give such statements for the record. arrested for violation of the Anti-Graft and Corrupt Practices Act. As defense counsel, you
object. The trial court asks you on what ground/s. Respond. (2010 Bar)
It is well settled that entries in the police blotter should not be given the due significance or
probative value as they are not conclusive evidence of the r\truth of their contents but merely of A: The objection is on the ground that the fact sought to be elicited by the prosecution is
the fact that they were recorded. Hence, they do not constitute conclusive proof. (People vs. irrelevant and immaterial to the offense under prosecution and trial. Moreover, the Rules do not
Cabrera Jr. GR No. 138266, April 30, 2003) allow the prosecution to adduce evidence of bad moral character of the accused pertinent to the
offense charged, except on rebuttal and only if it involves a prior conviction by final judgment.
(Sec. 51, Rule 130, now Sec. 54[a][2], Rule 130)
4BLUE 95. In a homicide case, one of the issues was determining which of the two medical
certificates issued by two different doctors, one of whom was a government physician, should
be given credence. The Court ruled that the medical certificate issued by the government doctor Q: In an attempt to discredit and impeach a Prosecution witness in a homicide case, the defense
should be given more weight. By actual practice, only government physicians, by virtue of their counsel called to the stand a person who had been the boyhood friend and next-door neighbor
oaths as civil service officials, are competent to examine persons and issue medical certificates of the Prosecution witness for 30 years. One question that the defense counsel asked of the
which will be used by the government. As such, the medical certificate carries the presumption impeaching witness was: "Can you tell this Honorable Court about the general reputation of the
of regularity in the performance of his functions and duties. Moreover, under Section 44 [now prosecution witness in your community for aggressiveness and violent tendencies?" Would
Section 46], Rule 130, entries in official records made in the performance of official duty are you, as the trial prosecutor, interpose your objection to the question of the defense counsel?
prima facie evidence of the facts therein stated. An unverified medical certificate not issued by Explain your answer. (2017 Bar)
a government physician is unreliable. (Tarapen v. People, G.R. No. 173824, 2008)
A: Yes, I as the trial prosecutor, would interpose my objection to defense counsel‘s question on
the ground of improper impeachment. Under the the Rules, an adverse party‘s witness may be
properly impeached by reputation evidence provided that it is to the effect that the witness‘s
general reputation for honesty, truth, or integrity was bad (Sec. 11, Rule 132). The reputation
must only be on character for truthfulness or untruthfulness. (Cordial v. People, G.R. No. L-
75880 September 27, 1988) Here the evidence is not on the prosecution witness‘s general
reputation for honesty, truth, or integrity but on his aggressive and violent tendencies. The
evidence had nothing to do with the witness‘s character for truthfulness or untruthfulness.
13.waiver (or child made a statement describing a child abuse act) Hence the impeachment was improper.

14.Residual Exception Q: Dave is on trial for sexual assault of Delly, a law student who sidelines as a call center
agent. Dave offers the testimony of Danny, who says that Dave is known in the community as a
A statement not specifically covered by any of the foregoing exceptions, having equivalent decent and discerning person. The prosecution presents a rebuttal witness, Dovie, who testifies
circumstantial guarantees of trustworthiness, is admissible if the court determines that: that, if Dave was reputed to be a good person, that reputation was a misperception because
a) The statement is offered as evidence of a material fact; Dave had been previously convicted of homicide. Is Dovie‘s testimony admissible as to the
b) The statement is more probative on the point for which it is offered than any other character of Dave? (2018 Bar)
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 A: No, Dovie‘s testimony on Dave‘s previous conviction for homicide as evidence of his bad
admission of the statement into evidence. character does not refer to a moral trait involved in the offense charged which is sexual assault.
(Sec 51[a][2], Rule 130)
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 a main case, to provide the adverse party with 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. (Rule 130, Sec. 50)
 9

JUDICIAL AFFIDAVIT d. Offer and objection

Offer of and objections to testimony in judicial affidavit—

The party presenting the judicial affidavit of his witness in place of direct testimony shall
The rule modifies the existing practice in the conduct of a trial and reception of evidence state the purpose of such testimony at the start of the presentation of the witness. The
by doing away with the usual oral examination of a witness in a direct examination. adverse party may move to disqualify the witness or to strike out his affidavit or any of
(Riano, Evidence, 418, 2019 ed.) the answers found in it on ground of inadmissibility. The court shall promptly rule on the
motion and, if granted, shall cause the marking of any excluded answer by placing it in
a. Scope brackets under the initials of an authorized court personnel, without prejudice to a tender
of excluded evidence under Section 40 of Rule 132 of the Rules of Court. (JAR, Sec. 6)
The Judicial Affidavit Rule shall apply to all actions, proceedings, and incidents requiring the
reception of evidence before: Oral offer of and objections to exhibits—
1. The Metropolitan Trial Courts, the Municipal Trial Courts in Cities, the Municipal
Trial Courts, the Municipal Circuit Trial Courts, and the Shari' a Circuit Courts but shall (a) Upon the termination of the testimony of his last witness, a party shall immediately
not apply to small claims cases under A.M. 08-8-7-SC; make an oral offer of evidence of his documentary or object exhibits, piece by piece, in
2. The Regional Trial Courts and the Shari'a District Courts; their chronological order, stating the purpose or purposes for which he offers the
3. The Sandiganbayan, the Court of Tax Appeals, the Court of Appeals, and the Shari'a particular exhibit.
Appellate Courts;
4. The investigating officers and bodies authorized by the Supreme Court to receive (b) After each piece of exhibit is offered, the adverse party shall state the legal ground for
evidence, including the Integrated Bar of the Philippine (IBP); and his objection, if any, to its admission, and the court shall immediately make its ruling
5. The special courts and quasi-judicial bodies, whose rules of procedure are subject to respecting that exhibit.
disapproval of the Supreme Court, insofar as their existing rules of procedure contravene
the provisions of this Rule. (JAR, Sec. 1(a)) (c) Since the documentary or object exhibits form part of the judicial affidavits that
describe and authenticate them, it is sufficient that such exhibits are simply cited by their
markings during the offers, the objections, and the rulings, dispensing with the
description of each exhibit. (JAR, Sec. 8)
b. Submission in lieu of direct testimony
e. Application in criminal cases
(a) The parties shall file with the court and serve on the adverse party, personally or by licensed
courier service, not later than five days before pre-trial or preliminary conference or the This rule shall apply to all criminal actions:
scheduled hearing with respect to motions and incidents, the following:
1. Where the maximum of the imposable penalty does not exceed six years;
(1) The judicial affidavits of their witnesses, which shall take the place of such witnesses'
direct testimonies; and 2. Where the accused agrees to the use of judicial affidavits, irrespective of the penalty
(2) The parties' documentary or object evidence, if any, which shall be attached to the involved; or
judicial affidavits and marked as Exhibits A, B, C, and so on in the case of the
complainant or the plaintiff, and as Exhibits 1, 2, 3, and so on in the case of the 3. With respect to the civil aspect of the actions, whatever the penalties involved are.
respondent or the defendant. (JAR, Sec. 9(a))

(b) Should a party or a witness desire to keep the original document or object evidence in his Example of crimes where applicable:
possession-- he may, after the same has been identified, marked as exhibit, and authenticated,
warrant in his judicial affidavit that the copy or reproduction attached to such affidavit is a 1. Falsification and use of falsified documents.
faithful copy or reproduction of that original. In addition, the party or witness shall bring the 2. False testimony and perjury.
original document or object evidence for comparison during the preliminary conference with 3. Indirect bribery.
the attached copy, reproduction, or pictures, failing which the latter shall not be admitted. 4. Death caused in a tumultuous affray (if it cannot be ascertained who actually killed the
deceased)
This is without prejudice to the introduction of secondary evidence in place of the original 5. Inducing a minor to abandon his home.
when allowed by existing rules. (JAR, Sec. 2) 6. Adultery and Concubinage.
7. Acts of lasciviousness.
The judicial affidavit shall take the place of the direct testimonies of witnesses. The rule, 8. Consented abduction.
therefore, modifies the existing practice in the conduct of a trial and reception of evidence by
doing away with the usual oral examination of a witness in a direct examination. (Riano, p.
296) f. Effect of non-compliance

1. A false attestation shall subject the lawyer mentioned to disciplinary action, including
disbarment. (JAR, Sec. 4(b))

c. Contents 2. If the government employee or official, or the requested witness, who is neither the witness
of the adverse party nor a hostile witness, unjustifiably declines to execute a judicial affidavit
A judicial affidavit shall be prepared in the language known to the witness and, if not in or refuses without just cause to make the relevant books, documents, or other things under his
English or Filipino, accompanied by a translation in English or Filipino, and shall contain the control available for copying, authentication, and eventual production in court, the requesting
following: party may avail himself of the issuance of a subpoena ad testificandum or duces tecum under
Rule 21 of the Rules of Court. The rules governing the issuance of a subpoena to the witness in
(a) The name, age, residence or business address, and occupation of the witness; this case shall be the same as when taking his deposition except that the taking of a judicial
(b) The name and address of the lawyer who conducts or supervises the examination of the affidavit shall be understood to be ex parte. (JAR, Sec. 5)
witness and the place where the examination is being held; Section 5 of the JAR contemplates a situation where there is a (a) government employee or
(c) A statement that the witness is answering the questions asked of him, fully conscious that he official or (b) requested witness who is not the (1) adverse party‘s witness nor (2) a hostile
does so under oath, and that he may face criminal liability for false testimony or perjury; witness. If this person either (a) unjustifiably declines to execute a judicial affidavit or (b)
(d) Questions asked of the witness and his corresponding answers, consecutively numbered, refuses without just cause to make the relevant documents available to the other party and its
that: presentation to court, Section 5 allows the requesting party to avail of issuance of subpoena ad
(1) Show the circumstances under which the witness acquired the facts upon which he testificandum or duces tecum under Rule 21 of the Rules of Court. Thus, adverse party
testifies; witnesses and hostile witnesses being excluded, they are not covered by Section 5.
(2) Elicit from him those facts which are relevant to the issues that the case presents; and Here, Yap is a requested witness who is the adverse party‘s witness. Regardless of whether he
(3) Identify the attached documentary and object evidence and establish their authenticity unjustifiably declines to execute a judicial affidavit or refuses without just cause to present the
in accordance with the Rules of Court; documents, Section 5 cannot be made to apply to him for the reason that he is included in a
group of individuals expressly exempt from the provision‘s application. (Ng Meng Tam vs.
(e) The signature of the witness over his printed name; and Chinabank, G.R. No. 214054, 2015)

(f) A jurat with the signature of the notary public who administers the oath or an officer who is 3. A party who fails to submit the required judicial affidavits and exhibits on time shall be
authorized by law to administer the same. (JAR, Sec. 3) deemed to have waived their submission.
The court may, however, allow only once the late submission of the same provided, the delay is
(g) A sworn attestation at the end, executed by the lawyer who conducted or supervised the for a valid reason, would not unduly prejudice the opposing party, and the defaulting party pays
examination of the witness, to the effect that: a fine of not less than P1,000.00 nor more than P5,000.00 at the discretion of the court.

(1) He faithfully recorded or caused to be recorded the questions he asked and the 4. The court shall not consider the affidavit of any witness who fails to appear at the scheduled
corresponding answers that the witness gave; and hearing of the case as required. Counsel who fails to appear without valid cause despite notice
(2) Neither he nor any other person then present or assisting him coached the witness shall be deemed to have waived his client's right to confront by cross-examination the witnesses
regarding the latter's answers. (JAR, Sec. 4(a)) there present.

The questions to be asked of the witness in the preparation of the judicial affidavit will 5. The court shall not admit as evidence judicial affidavits that do not conform to the content
determine whether he/she has personal knowledge of the facts upon which he/she requirements of Section 3 and the attestation requirement of Section 4.
testifies. The matters testified to should also be on matters relevant to the issues of the The court may, however, allow only once the subsequent submission of the compliant
case. (Riano, Evidence, 272) replacement affidavits before the hearing or trial provided the delay is for a valid reason and
would not unduly prejudice the opposing party and provided further, that public or private
counsel responsible for their preparation and submission pays a fine of not less than P1,000.00
nor more than P5,000.00, at the discretion of the court. (JAR, Sec. 10)
 10

OPINION RULE 2. OPINION OF ORDINARY WITNESS

The Opinion of a Witness for Which Proper Basis is Given, May be received in Evidence
Regarding:
Opinion: An inference or conclusion drawn from facts and not their inferences, 1. The identity of a person about whom he or she has adequate knowledge
conclusions or opinions. 2. A handwriting with which he or she has sufficient familiarity; and
3. The mental sanity of a person with whom he or she is sufficiently acquainted.

The witness may also testify on his or her impressions of the emotion, behavior,
GENERAL RULE: Witnesses must give the facts and not their inferences, conclusions or condition or appearance of a person. (Rule 130, Sec. 53)
opinions(OPINION OF WITNESS NOT ADMISSIBLE).
Proper Basis or Predicate Must First be Established
1. Adequate knowledge of the person identified
2. Sufficient familiarity with the handwriting regarding which the opinion is given
EXCEPTIONS: 3. Sufficient acquaintance with the person whose mental sanity is the subject of the
opinion given An ordinary witness cannot give an opinion as to the mental sanity of
a person based in whole or in part upon an abstract hypothetical question, but must
1. OPINION OF EXPERT WITNESS : On a matter requiring SPECIAL knowledge, base his opinion solely upon his own personal knowledge, observation, or
skill, experience or training which he is shown to possesses acquaintance.

Generally, a lay witness may testify only to facts and not to opinions or conclusions, but
The court is not bound by the opinion of an expert such as a handwriting expert. Expert may be permitted to use so-called short hand descriptions (in reality, opinions), in
opinion evidence is to be considered or weighed by the court, like any other testimony, in presenting to court their impressions of general physical condition of a person. In murder
light of its own general knowledge and experience upon the subject of inquiry. (Dizon v prosecution, where the defendant‘s mother testified on the issue of the defendant‘s
Tuazon, G.R. No. 172167, 2008) insanity and related history of the defendant from infancy to the day of the alleged crime,
A finding of forgery does not depend entirely on the findings of handwriting experts, including his illness, both mental and physical, his hospitalizations, his moral
because the judge must conduct an independent examination of the questioned signature delinquencies and his crimes, and whatever might throw light on his mental condition,
in order to arrive at a reasonable conclusion. (Lorzano v. Tabayag, G.R. No. 189647, words used by defendant‘s mother ―such a terrible shape‖ and ―physically ill‖ in
2012) describing defendant‘s condition should have been permitted to stand. (State v. Garver,
Where the sanity of a person is at issue, expert opinion is not necessary. The observations 225 P.2d 771, 1950)
of the trial judge coupled with evidence establishing the person's state of mental sanity
will suffice. (Hernandez v. San Juan-Santos, G.R. No. 166470, 2009) Q: Bembol was charged with rape. Bembol's father, Ramil, approached Artemon, the victim's
father, during the preliminary investigation and offered P1 Million to Artemon to settle the
“Hot Tub” Method – Concurrent Expert Evidence (ISAAA v. Greenpeace, G.R. No. case. Artemon refused the offer.
209271, 2015) a. During trial, the prosecution presented Artemon to testify on Ramil's offer and thereby
"Hot tubbing," the colloquial term for concurrent expert evidence, is a method used for establish an implied admission of guilt. Is Ramil's offer to settle admissible in evidence? A: No.
giving evidence in civil cases in Australia. The offer to settle not being made by the accused or with his participation is not admissible
In a "hot tub" hearing, the judge can hear all the experts discussing the same issue at the against him under the rule of res inter alios acta. No implied admission of guilt can be drawn
same time to explain each of their points in a discussion with a professional colleague. from efforts to settle a criminal case out of court, where the accused had no participation in
such negotiation. (People v. Godoy, G.R. Nos. 115908-09, December 6, 1995)
Objective To achieve greater efficiency and expedition by reduced emphasis on cross- b. During the pre-trial, Bembol personally offered to settle the case for P1 Million to the private
examination and increased emphasis on professional dialogue, and swifter identification prosecutor, who immediately put the offer on record in the presence of the trial judge. Is
of critical areas of disagreement between experts. Bembol's offer a judicial admission of his guilt? (2008 Bar) A: No. The offer is not a judicial
admission of guilt because it has not been reduced in writing or signed by the accused. The Sec.
How to Determine Weight to be Given to Opinion of Expert Witness 2, Rule 118 requires that all agreements or admissions made or entered during the pre-trial
conference shall be reduced in writing and signed by the accused and counsel, otherwise, they
In any case where the opinion of an expert witness is received in evidence, the court has a cannot be used against the accused.
wide latitude of discretion in determining the weight to be given to such opinion, and for
that purpose may consider the following: Q: If the accused on the witness stand repeats his earlier uncounseled extrajudicial confession
a. Whether the opinion is based upon sufficient facts or data; implicating his co-accused in the crime charged, is that testimony admissible in evidence
b. Whether it is the product of reliable principles and methods; against the latter? (1998 Bar)
c. Whether the witness has applied the principles and methods reliably to facts of A: Yes. The accused can testify by repeating his earlier uncounseled extrajudicial confession,
the case; and Such other factors as the court may deem helpful to make such because he can be subjected to cross-examination.
determination. (Rule 133, Sec. 5)
Q: What is the probative value of a witness‘ Affidavit of Recantation? (1998 Bar)
A: On the probative value of an affidavit of recantation, courts look with disfavor upon
recantations because they can easily be secured from witnesses, usually through intimidation or
Expert evidence:
for a monetary consideration. Recanted testimony is exceedingly unreliable. There is always
The testimony of one possessing in regard to a particular subject or department of human the probability that it will be repudiated. (Molina v. People, G.R. Nos. 70168-69, July 24,
activity, knowledge which is not usually acquired by other persons. 1996)

TEST: whether the opinion called for will aid the fact finder in resolving an issue. Q: X and Y were charged with murder. Upon application of the prosecution, Y was discharged
from the Information to be utilized as a state witness. The prosecutor presented Y as witness
but forgot to state the purpose of his testimony much less offer it in evidence. Y testified that he
Expert evidence is admissible only if: and X conspired to kill the victim but it was X who actually shot the victim. The testimony of
Y was the only material evidence establishing the guilt of X. Y was thoroughly cross-examined
1. the matter to be testified requires expertise; and by the defense counsel. After the prosecution rested its case, the defense filed a motion for
2. the witness has been qualified as an expert. demurrer to evidence based on the following grounds: 1. The testimony of Y should be
excluded because its purpose was not initially stated and it was not formally offered in
evidence as required by Sec. 34, Rule 132; and 2. Y‘s testimony is not admissible against X
How to present an expert witness pursuant to the rule on ―res inter alios acta.‖ Rule on the motion for demurrer to evidence on
the above grounds. (2003 Bar)
1. Introduce and qualify the witness; A: The demurrer to the evidence should be denied:
2. Let him give his factual testimony, if he has knowledge of the facts; 1. The testimony of Y should not be excluded because the defense counsel did not object to his
3. Begin the hypothetical question by asking him, to assume certain facts as true; testimony despite the fact that the prosecutor forgot to state its purpose or offer it in evidence.
4. Conclude the question, by, first asking the expert if he has an opinion on a Moreover, the defense counsel thoroughly cross- examined Y and thus waived the objection.
certain point assuming that these facts are true and secondly, asking him, after 2. The res inter alios acta rule does not apply because Y testified in open court and was
he has answered affirmatively, to give his opinion on the point; subjected to cross examination.
5. After he has stated his opinion, ask him to give his reasons.
Q: Arrested in a buy-bust operation, Edmond was brought to the police station where he
wasinformed of his constitutional rights. During the investigation, Edmond refused to give any
statement. However, the arresting officer asked Edmond to acknowledge in writing that six (6)
sachets of ―shabu‖ were confiscated from him. Edmond consented and also signed a receipt for
the amount of P3,000.00, allegedly representing the ―purchase price of the shabu.‖ At the trial,
the arresting officer testified and identified the documents executed and signed by Edmond.
Edmond‘s lawyer did not object to the testimony. After the presentation of the testimonial
evidence, the prosecutor made a formal offer of evidence which included the documents signed
by Edmond. Edmond‘s lawyer objected to the admissibility of the documents for being the
―fruit of the poisonous tree.‖ Resolve the objection with reasons. (2009 Bar)
A: The objection to the admissibility of the documents which the arresting officer asked
Edmond to sign without the benefit of counsel, is well-taken. Said documents having been
signed by the accused while under custodial investigation, imply an ―admission‖ without the
benefit of counsel that the shabu came from him and that the P3,000.00 was received by him
pursuant to the illegal selling of the drugs. Thus, it was obtained by the arresting officer in
violation of Section 12(3), Article III of the 1987 Constitution, particularly the right to be
assisted by the counsel during custodial investigation. Moreover, the objection to the
admissibility of the evidence was timely made, i.e., when the same is formally offered.