REM2 - CORNEJO EBOOK.pdf

Transcribers:

Marc Roby de Chavez (MARX)Marc Roby de Chavez (MARX)Marc Roby de Chavez (MARX)Marc Roby de Chavez (MARX)

Jean Marionne Bermudez (JAM)

Kristine Tendencia (TIN)

Professor: Justice Maria Cristina J. Cornejo

EVIDENCE

SPECIAL CIVIL ACTIONS

REMEDIAL Law Review 2 Notes by MARX, JAM & TIN

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REM2_1

RULE 128

Define Evidence SECTION 1. Evidence defined. — Evidence is the means,

sanctioned by these rules, of ascertaining in a judicial proceeding

the truth respecting a matter of fact.

When you say evidence is the means, what do you mean?

It is the tool by which you are to ascertain the truth

respecting a matter of fact.

What is that matter of fact that is contemplated in the

definition of evidence?

The fact in issue

What is the fact in issue?

The fact in issue is the subject matter of the

controversy.

Now you are able to establish the truth with respect

to that subject matter of the controversy via

evidence. So evidence is the tool, the means by

which you are able to establish the truth respecting

the subject matter of the controversy.

So how do you explain the rule that evidence signifies the

relation between two facts? What are these two facts?

Factum Probans Factum Probandum

The material that you are

going to use to establish the

factum probandum, which is

the proposition or the theory

that is sought (to be

established.)

The proposition or theory

that is sought to be

established.

In relation to the rule that evidence signifies the relation

between two facts, how do you explain this?

It is by means of the material, the factum probans,

that you are able to establish the factum

probandum, which is the theory in every given case.

What are the different kinds of evidence?

1. Direct Evidence

2. Circumstantial Evidence

3. Primary Evidence

4. Secondary Evidence

5. Positive Evidence

6. Negative Evidence

7. Corroborative Evidence

8. Cumulative Evidence

9. Prima Facie Evidence

10. Conclusive Evidence

11. Object Evidence

12. Documentary Evidence

13. Testimonial Evidence

How do you distinguish Direct from Circumstantial Evidence?

Direct Evidence is that which proves the fact in

dispute without the aid of any inference or

presumption, while Circumstantial Evidence is the

proof of facts from which, taken collectively, the

existence of a particular fact in dispute may be

inferred as a necessary or probable consequence.

What is the basic difference?

Basically, the difference between Direct and

Circumstantial Evidence is in Circumstantial, you still

have to draw an inference in order to establish.

What could be a classic example of direct evidence?

Eye witness account, “I saw him shoot him.” You

don’t need to draw an inference of guilt kasi direct

nga e.

As distinguished from circumstantial, you have to draw an

inference but from where?

---

How do you distinguish Positive from Negative evidence?

Positive evidence – when the witness affirms that a

fact did or did not occur.

Negative Evidence – when the witness states that he

did not see or know the occurrence of the fact.

How do you distinguish Conclusive Evidence from Prima Facie

Evidence?

Prima Facie – evidence, standing alone and

uncontradicted, suffices for the proof of a particular

fact.

(Transcriber’s Note: From Lantin notes but according to J.C. this is the rule with

respect to the weight of Prima Facie Evidence and not the definition.)

Conclusive evidence – that which the law does not

allow to be contradicted.

What would comprise Prima Facie Evidence?

Because that is the rule, it’s disputable but if it is not

disputed, it will suffice.

It could sustain a proposition. But what would

comprise Prima Facie Evidence? Cos prima facie, that

could be in relation to the determination of probable

cause, diba? Disputable yan e.


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In other words, how do you define Prima Facie Evidence?

Prima facie is a Latin expression meaning on its first

appearance, or at first sight.

Sec. 2. Scope. — The rules of evidence shall be the same in all courts and in

all trials and hearings, except as otherwise provided by law or these rules.

Sec. 3. Admissibility of evidence. — Evidence is admissible when it is relevant

to the issue and is not excluded by the law of these rules.

What are the requisites for the admissibility of evidence?

It must be relevant and must be competent.

Sec. 4. Relevancy; collateral matters. — Evidence must have such a relation

to the fact in issue as to induce belief in its existence or non-existence.

Evidence on collateral matters shall not be allowed, except when it tends in

any reasonable degree to establish the probability or improbability of the

fact in issue.

What is relevancy? When is evidence relevant?

It is relevant when it has such a relation to the fact in

issue as to induce belief in its existence or non-

existence.

When is evidence competent?

It is competent when it is not excluded by law or by

the Rules on Evidence.

What are collateral matters?

Those which are outside the controversy or are not

directly connected with the principal matter or issue

in dispute, as indicated in the pleadings of the

parties.

Can you illustrate?

Person Reciting (PR): As when a person, who

happens to be a security guard, killed someone

through the use of a gun, the testimony of the

witness that the accused is a security guard is a

collateral matter.

Do you need to present evidence on collateral matters?

General rule: No.

Exception: when it tends in any reasonable degree

to establish the probability or improbability of the

fact in issue.

“In any reasonable degree”, can you illustrate?

(PR): In the given example, the victim was killed with

the use of a gun, the accused’s being a security

guard may or may not establish his guilt.

Hearsay evidence, what is hearsay evidence?

It is the kind of evidence offered without the

personal knowledge of the person testifying. The

person testifying has no personal knowledge of the

subject matter of his testimony.

Is hearsay admissible?

No, it is not because it is not competent evidence. It

is excluded by the Rules.

But can you say that hearsay evidence is relevant?

Yes.

When can we say that hearsay is relevant?

Hearsay evidence is relevant when it has a relation

to establish the existence or non existence of the

fact in issue.

For example, in a prosecution for defamation against X, the

witness said according to X, Y is a drug lord. Is that evidence

relevant for the fact in issue? Is the witness’ testimony

hearsay?

Yes.

So basically the testimony is inadmissible?

Yes.

But is the testimony relevant to the fact in issue?

Yes.

But why is it inadmissible?

Because it is incompetent.

That’s my point: Any piece of evidence for purposes

of admissibility, it must be both relevant and

competent. It is not enough that it is relevant. It

must be, at the same time, competent.

Now we say that hearsay evidence is incompetent.

Why do we say that it is incompetent?

Because it is expressly excluded by the

Rules.

Why is it excluded by the Rules?

Because the person testifying has no

personal knowledge of the subject matter

of his testimony.

Are the rules on evidence applicable in Administrative

proceedings?

General Rule: No.

Exception: If it is applied in a suppletory character.


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Are the rules on evidence the same in all courts?

General Rule: yes

Exception: Unless otherwise provided by law or the

rules.

RULE 129

SECTION 1. Judicial notice, when mandatory. — A court shall take judicial

notice, without the introduction of evidence, of the existence and territorial

extent of states, their political history, forms of government and symbols of

nationality, the law of nations, the admiralty and maritime courts of the

world and their seals, the political constitution and history of the Philippines,

the official acts of legislative, executive and judicial departments of the

Philippines, the laws of nature, the measure of time, and the geographical

divisions.

What is judicial notice?

It is the cognizance by the court of matters without

need of introducing proof.

Why do you mean by that?

It means that once the court takes judicial notice of a

particular fact, you do not need to prove it anymore.

If the court announces that “I am taking judicial

notice of this particular fact”, tapos na. You don’t

need to introduce evidence anymore because the

court has taken judicial notice of that particular fact.

What are the two kinds of Judicial notice?

1. Mandatory Judicial Notice; and

2. Discretionary Judicial Notice

What is mandatory judicial notice? Mandatory on whose

part?

It is mandatory on the part of the court. They are the

particular facts which the court must take judicial

notice. The court need not set it for hearing for the

court to determine whether it should be taken

judicial notice of. The court has no discretion but to

take judicial notice of it.

What are the matters subject of mandatory judicial notice?

Rule 129, Section 1. Memorize.

1. The existence and territorial extent of states;

2. Their political history;

3. Forms of government and

4. symbols of nationality;

5. Law of nations

6. Admiralty and maritime courts of the world and their

seals;

7. The political constitution and history of the

Philippines;

8. The official acts of the legislative, executive and

judicial departments of the Philippines;

9. The laws of nature;

10. The measure of time; and

11. The geographical divisions.

In relation to this, read the case of Amsterdam Holdings vs.

DOT (ZTE case), 2009

What is discretionary judicial notice?

Those are matters which the court may take judicial

notice of.

What are the subject matters of discretionary judicial notice?

1. Facts which are of public knowledge;

2. Facts capable of unquestionable demonstration; and

3. Facts which are ought to be known to judges by

reason of their judicial functions.

What do you mean by matters capable of unquestionable

demonstration?

These are matters with verifiable sources of

accuracy.

Pwede silang ma-prove by verifiable sources of

accuracy. Meron silang sources with which to verify

the truth of this, the accuracy of this, for the court to

take judicial notice.

How about the third one?

Matters which are ought to be known to judges by

reason of their judicial functions.

How do you illustrate that?

Factual yan e, for example, in a prosecution for

concubinage. Subsequent yan. The judge, while

malling, sees his kumpare with another woman who

is not his kumare. Subsequent prosecution for

concubinage, can the judge take cognizance or

judicial notice of the fact that in one occasion, to

prove the case for concubinage, that he saw his

kumpare with another woman who is not his

kumare?

No, because it is not known to him by

reason of his judicial function.

Sec. 2. Judicial notice, when discretionary. — A court may take judicial notice

of matters which are of public knowledge, or are capable to unquestionable

demonstration, or ought to be known to judges because of their judicial

functions.

If it is discretionary judicial notice, do you need a hearing

before the court can take judicial notice of that matter?

Yes.


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What is the purpose of the hearing?

To determine whether it is proper for the court to

take judicial notice.

What happens during the hearing?

Who initiates the hearing?

It may be upon the initiative of the court or upon

motion of the party.

If it is upon the initiative, how is the initiative done by the

court to set the case for hearing on the matter to be taken

judicial notice?

The court will announce to the parties its intention

to take judicial notice of this particular fact and then

set it for hearing.

How will the court determine?

The court will allow the parties to argue for or

against the propriety of the court taking judicial

notice of that particular fact.

Can there be hearing on the matters to be taken judicial

notice of if the case is already on appeal?

Yes, but on the condition that the matter is decisive

of a material issue in the case or on appeal.

Can you illustrate?

For example in a criminal case on appeal, here’s an

accused convicted of a violation of a particular law,

on appeal the lawyer makes a research and

discovers that the law in which his client is convicted

has already been repealed even before his

conviction, can he ask that the court take judicial

notice of such fact – the repeal of the law?

Yes, because the repeal of the law is

decisive to the material issue in the case on

appeal.

Why is it decisive to the material issue?

Because if it is absolute repeal of the law, then the

crime is obliterated.

REM2_2

Sec. 4. Judicial admissions. — An admission, verbal or written, made by the

party in the course of the proceedings in the same case, does not require

proof. The admission may be contradicted only by showing that it was made

through palpable mistake or that no such admission was made.

State the rule on judicial admissions

Judicial admissions refer to statements made

whether verbal or written in the course of a

proceeding and does not require proof however

there are exceptions first when there is palpable

mistake and there is no such statement made

It does not require proof, when is a judicial admission made

orally, what course of the proceedings?

During arraignment, when he pleads guilty, it is

made in a proceeding in one case which is a criminal

case

what else? When can a judicial admission be orally made?

During the pre-trial

Which part of the pre-trial?

During the stipulation of facts

During the stipulation of facts there is a proposal for

a stipulation from the other party, the court says

admitted or denied? Admitted. That is a judicial

admission made orally in a court proceeding.

When is there a written judicial admission?

When it is contained in a pleading

If the pleading containing the admission is filed in court, what

is the nature of such admission?

Judicial admission

if that pleading containing the admission is not filed in court

but filed in the filing cabinet, what is the nature of such

admission?

Extrajudicial admission

Now if the judicial admission contained in a pleading is filed in

court, what would be the effect of that judicial admission on

the party making?

He cannot contradict such admission

it conclusively binds that person making the

admission

If an admission that is contained in a pleading that is not filed

in court but filed in the filing cabinet or drawer, what is the

nature of that admission?

Extrajudicial

But if the admission is made in the course of a proceeding and

it is contained in pleading which is filed in court, what is the

nature?

It is a judicial admission.


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if that judicial admission made in a pleading which is filed in

court is now offered as evidence in another judicial

proceeding, what would be the nature of such admission?

It becomes now an extrajudicial admission

Why does it become an extrajudicial admission?

Because it is not offered in the course of the

proceeding where the admission was made

the rule is it is judicial if it is made in the course of

the proceedings in one case but even if is judicial

initially, while if it is introduced in evidence even in

another judicial proceeding with respect to that

second judicial proceeding it now becomes an

extrajudicial admission.

Now if it is a judicial admission what is the effect again?

It is conclusive as to the one who made the

admission

It cannot be rebutted does it need to be proved?

No

But with respect to the admission that it offered in evidence in

another judicial proceeding that becomes an extrajudicial

admission, what is the requirement for the purpose of its

admissibility? For it to be admissible as evidence in that

particular case, what needs to be done?

it has to be proved

If the admission is contained in a pleading that is filed in court

that is judicial admission, what if the admission is contained

in a motion that is filed in court, what is the effect of that

admission? Pleading and motion are different. How do you

distinguish a pleading from a motion?

A motion is any written application for relief other

than a pleading; a pleading is a written statement of

a party’s claims or defenses

If it is an admission that is contained in a pleading and is filed

in court it is a judicial admission, but if it is an admission that

is contained not in a pleading but in a mere motion and filed

in court, what is the nature of such admission?

It is a judicial admission because the law says oral or

written, it is contained in the written admission in

other form of a written admission

with respect to an extrajudicial admission and extrajudicial

confession what do you understand by these? Extrajudicial

admission?

Extra-judicial admission - an admission made

outside the court proceedings, an admission outside

a judicial proceeding

An extrajudicial admission before is said to be admissible

would have to be proved, now state the rule with respect to

extrajudicial confession with respect to its binding effect

Extrajudicial admission should be proven before the

court before it can bind the person making the

admission

With respect to the binding effect on person making the

admission, can the extrajudicial admission of one person bind

another person or prejudice or affect another person state the

rule

Res inter alios acta rule

state the res inter alios acta rule Sec. 28. Admission by third party. — The rights of a party cannot

be prejudiced by an act, declaration, or omission of another,

except as hereinafter provided. (Rule 130)

What does it mean?

in other words, whatever I say, whatever i do, it

binds me alone, it will not bind anybody, it will not

prejudice anybody it’s that simple, it binds me alone,

it will not bind or prejudice anybody.

What do you understand by the rule?

when a person admits something, that admission

will be binding on him alone, it will not bind any

other person

That’s part one, what’s part two of the res inter alios acta

rule, what is the part 2? Section 34. Similar acts as evidence. — 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. (Rule 130)

part two of the rule states that a person’s act at one

time cannot be received in evidence that a person

did or did not do a certain thing at another time but

only to prove the intent, habit, custom or usage, and

the like

In short, evidence of what?

The person’s act cannot be used to prove that he

committed the same act at some other time, unless

it is only to prove that such person has the habit of

doing such things or that he _________

What are the exceptions to the first part? Sec. 29. Admission by co-partner or agent. — The act or

declaration of a partner or agent of the party 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 other than such act or

declaration. The same rule applies to the act or declaration of a


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joint owner, joint debtor, or other person jointly interested with

the party.

Sec. 30. Admission by conspirator. — The act or declaration of a

conspirator relating to the conspiracy and during its existence,

may be given in evidence against the co-conspirator after the

conspiracy is shown by evidence other than such act of

declaration.

Sec. 31. Admission by privies. — Where one derives title to

property from another, the act, declaration, or omission of the

latter, while holding the title, in relation to the property, is

evidence against the former.

What do you understand by these exceptions?

With respect to admission by privies, in this case,

when a person derives title from another person, the

indication is that the person from whom he derives

title will be binding upon him

Under these exceptions,the rule is “What I say what I do will

bind me alone” but under the exceptions “What I do what I

say may bind other persons

What is the common denominator for my statement, my act,

declaration or omission to bind you?

The person making the admission must have a

relation against the person whom it is offered

against

And it is not enough that there is a relation, what else is

needed for my statement to bind you? Common

denominator, tingnan nyo may common denominator yan.

For example, if I am accused of committing a crime and I said

“I didn’t but I admitted that I acted in conspiracy with Mr. X.”

will my statement that I co-conspirated during the

commission of the crime necessarily bind Mr. X?

No, the conspiracy (relation) must be established

How do we establish the conspiracy (relation)?

Established it by other than the declarant statement

For example:

I am acting as an agent of Mr. X who is my principal.

For my statement or for my action to bind Mr. X, I

first have to establish the relation between us, as

principal and agent. The rule requires that.

How do I establish for my statement as an alleged

agent of Mr. X to bind Mr. X?

I first have to establish the relation between

us by evidence other than my statement

that he is my principal.

That is the common denominator.

Establish first the relationship, how do you establish

by evidence other than by the mere statement, by

the mere declaration of the existence of the

relationship.

What about in partners?

The thing with partners, the existence of the

partnership must be established before the act of

one the adverse partner, the existence of the

partnership must first be established, the perception

is that a partner acts for the partnership

Section 29. Admission by co-partner or agent. — The act or

declaration of a partner or agent of the party 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 other than such act or

declaration. The same rule applies to the act or declaration of a

joint owner, joint debtor, or other person jointly interested with

the party.

Mr. X is my partner in this business transaction, what could be

evidence of the partnership?

The articles of Partnership, that AOP even standing

alone can prove the existence of the partnership

other than my declaration.

Supposing Mr. X is my principal, how can my statement bind

him as my principal?

Either General Power of Attorney or Special Power

of Attorney

Explain the rule on admission by privies Section 31. Admission by privies. — Where one derives title to

property from another, the act, declaration, or omission of the

latter, while holding the title, in relation to the property, is

evidence against the former.

If a person makes a declaration with regard to a

written admission, whoever derives title from him,

those admissions made by the privy will be binding

upon him, those who derive title from the person

who is a party to the transaction

To bind the transferee what would be necessary to admission

with respect to the property, I made an admission regarding

my property, transferee ka ng property how can my admission

bind the transferee? admission with respect to the property,

how can it bind the transferee, yung transferee yung nakabili

ha, so how can the admission by the owner bind the

transferee? Admission with respect to the property? Meron

jan qualifying phrase

The admission must be made by the owner or

transferor while he was holding title, because when

he already transferred the property, it cannot bind

him.


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What about extrajudicial confession? What is the rule? What

is an extrajudicial confession?

it has to be corroborated by evidence.

Extra-judicial confession - It is a confession not done

during the course of the judicial proceedings

Section 3. Extrajudicial confession, not sufficient ground for

conviction. — An extrajudicial confession made by an accused,

shall not be sufficient ground for conviction, unless corroborated

by evidence of corpus delicti. (Rule 133)

Who will be bound by the extrajudicial confessions?

it will bind the person making the confession

When can the confession done bind another person?

When the other person acquiesced or agreed to the

confession made by another

What is the Doctrine of Interlocking confessions? Exception

yan sa “the extrajudicial confession of one binds the declarant

alone” very important exception, this must be given emphasis

during your class in evidence. What do you understand by

interlocking?

That the statement of one corroborates the

statement of the others

For example X, Y, Z. X executes an extrajudicial confession

implicating Y and Z as co-conspirators in the commission of

the crime. Rule, the inter alios acta rule, can the confession of

X bind Y and Z? Answer by the general rule, wag ka mag

qualify

No.

When can the confession of X binds Y and Z?

the confession of X will bind Y and Z if such

confession was made during the existence of the

conspiracy and if the conspiracy can be proved by

evidence other than by the confession made by X

if X makes an extrajudicial confession only after the

commission of the crime and implicates Y and Z. Y executes

his own extrajudicial confession and implicates X and Z. Z

makes an extrajudicial confession and implicates X and Y.

The rule is the confession of X will not bind Y and Z. The

confession of Y will not bind X and Z. The confession of Z will

not bind X and Y. But all of them made extrajudicial

confession. Applying the doctrine of interlocking confessions,

how can and in what circumstances can the extrajudicial

confession of X bind Y and Z, the extrajudicial confession of Y

bind X and Z and the extrajudicial confession of Z bind X and

Y. Under what instances can their extrajudicial confession

bind their co-accused? What is required? Ayan na yung

interlocking eh, all of them were charged under 1 crime, each

of them executed their own extrajudicial confessions, so under

what circumstances can their confessions bind the other?

if the confessions interlocked

what do you mean when you say the confessions interlocked,

what aspects? Kasi you need to be specific, it is enough that

by their mere presence?

The confessions agree on material points.

Do not use the word “corroborate” kasi pwede mag

corroborate as to the fact of the presence of the two

the mere presence in the scene of the crime is not

conspiracy, so kelangan each must perform an overt

act to show that they are geared toward the same

purpose

When we say interlocking confession or doctrine of

interlocking confession that is an exception to the res inter

alios acta rule

So several accused made a confession, the rule is, the act of

one does not bind the other. The exception is, if their

confessions interlock or they jive or they agree on material

points

State the rule on evidence of similar acts, that is another

branch of the res inter alios acta rule Section 34. Similar acts as evidence. — 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. (Rule 130)

Evidence that one did or did not a particular act at

one time is not admissible to prove that he did or did

not do the similar thing at another time

Exception?

x x x x… but it may be received to prove a specific

intent or knowledge; identity, plan, system, scheme,

habit, custom or usage, and the like.

The rule prohibits the admission of the so-called propensity

evidence

Propensity evidence – evidence that tends to show that what

a person has done at one time is probative of the contention

that he has done a similar act at another time


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RULE 130

What is object evidence? Section 1. Object as evidence. — Objects as evidence are those

addressed to the senses of the court. When an object is relevant

to the fact in issue, it may be exhibited to, examined or viewed by

the court.

It is evidence that is addressed to the senses of the

court that has a relation to the fact in issue which

can be exhibited in court and can be viewed by the

parties

what do you mean addressed to the senses of the court?

it is a tangible object

Do you agree that object evidence is the most potent piece of

evidence?

Yes

Why?

because it addressed to the senses of the court, nasa

definition you can actually feel it, touch it, taste it,

that’s why it is the most potent it is the strongest

Can its use be limited?

yes,

For purposes of admissibility of object evidence what is

required?

• the evidence must be relevant

• the evidence must be authenticated

• the authentication must be made by a competent

witness

• the object must be formally offered in evidence

For purposes of admissibility of any piece of evidence I told

you it must be both relevant and competent, now with respect

to object evidence there is another requirement it must be

authenticated, what do you mean by authenticated? How do

you authenticate object evidence?

This particular object evidence, at the time it is

presented in court in evidence, must be shown to be

in the same condition as it was, when it was involved

in the incident, transaction or subject matter of the

case

What is documentary evidence? Section 2. Documentary evidence. — Documents as evidence

consist of writing or any material containing letters, words,

numbers, figures, symbols or other modes of written expression

offered as proof of their contents.

Documentary evidence consists of writings or any

material consisting of words, figures or symbols to

be offered as proof of their contents

any form of written expression, now how do you distinguish

written from object evidence? Can a piece of object be

considered as documentary evidence, for example that wall

made of concrete, if that wall has writings on it, can that wall

be considered as documentary evidence? For example it has

writing on it, can it be considered as documentary evidence?

Yes.

If the wall with writings on it, is offered to proved

what was written on it, that wall can be considered

as documentary evidence

If the wall with writings on it, is offered to prove that

such wall has writings on it what is it considered?

Object evidence, because it is addressed to

the sense of sight.

Because in documentary evidence any form

of written material offered to prove their

contents. So even though it is made on a

concrete and there are writings on it. It can

still be considered at documentary

evidence.

If the purpose of the offer is to proved what

is actually written, the contents.

But if the purpose is only to prove that

something is written or the wall has

writings on it, then that one is object

evidence

State the Best Evidence Rule

If the subject of inquiry is the contents of a

document, there is no other evidence admissible

except the original thereof

Section 3. Original document must be produced; exceptions. —

When the subject of inquiry is the contents of a document, no

evidence shall be admissible other than the original document

itself, except in the following cases:

(a) When the original has been lost or destroyed, or

cannot be produced in court, without bad faith on the

part of the offeror;

(b) When the original is in the custody or under the

control of the party against whom the evidence is

offered, and the latter fails to produce it after

reasonable notice;

(c) When the original consists of numerous accounts or

other documents which cannot be examined in court

without great loss of time and the fact sought to be

established from them is only the general result of the

whole; and

(d) When the original is a public record in the custody of a

public officer or is recorded in a public office. (rule

130)


9 | P a g e

What are the 2 rules with respect to documentary evidence?

• The best evidence rule

• Parol evidence rule

Under the Best evidence rule, when do you invoke the best

evidence rule?

When the subject of the inquiry or question pertains

to the contents of the document

Under the best evidence rule, what is the best evidence?

the original

What is the original of the document? Section 4. Original of document. —

(a) The original of the document is one the contents of which

are the subject of inquiry.

(b) When a document is in two or more copies executed at or

about the same time, with identical contents, all such copies

are equally regarded as originals.

(c) When an entry is repeated in the regular course of business,

one being copied from another at or near the time of the

transaction, all the entries are likewise equally regarded as

originals.

If the subject of inquiry is the contents of the document, you

present the original.

What are the exceptions to best evidence rule?

secondary evidence

What is secondary evidence? Example

Xerox copy, photocopy

If the content of the document is the subject of inquiry you

present the original, now when may you be allowed to

present the photocopy or Xerox copy even if the subject of

inquiry is the contents of the document? 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 part, may prove its contents by a copy, or by a recital of its

contents in some authentic document, or by the testimony of

witnesses in the order stated.

Section 6. When original document is in adverse party's custody or

control. — If the document is in the custody or under the control

of adverse party, he must have reasonable notice to produce it. If

after such notice and after satisfactory proof of its existence, he

fails to produce the document, secondary evidence may be

presented as in the case of its loss.

Section 7. Evidence admissible when original document is a public

record. — When the original of document is in the custody of

public officer or is recorded in a public office, its contents may be

proved by a certified copy issued by the public officer in custody

thereof.

REM2_3

Best Evidence Rule as distinguished to Parole Evidence Rule

Always remember that you apply the Best Evidence

Rule only if the subject of the inquiry, subject of the

question pertains to the contents of the document.

Now, pag nag-pertain to the contents of the

document, you apply the Best Evidence Rule, which

means that you get the original.

Now if you apply the Best Evidence Rule, as a rule,

you do not avail of secondary evidence.

Under section 4 of rule 130, that is the original of the

document.

What are these secondary evidence?

Yung mga Xerox copies, photocopies, machine

copies. These are secondary evidence because it is

not the original.

Now, as a rule, you do not present and it’s not admissible if

the subject of the inquiry pertains to the contents document,

you cannot present secondary evidence. That will be objected

to. However under certain circumstances, secondary

evidence may be admitted. (Section 3, Rule 130). Section 3. Original document must be produced; exceptions. — When

the subject of inquiry is the contents of a document, no evidence shall

be admissible other than the original document itself, except in the

following cases:

(a) When the original has been lost or destroyed, or cannot be

produced in court, without bad faith on the part of the

offeror;

(b) When the original is in the custody or under the control of

the party against whom the evidence is offered, and the

latter fails to produce it after reasonable notice;

(c) When the original consists of numerous accounts or other

documents which cannot be examined in court without

great loss of time and the fact sought to be established from

them is only the general result of the whole; and

(d) When the original is a public record in the custody of a

public officer or is recorded in a public office.

These are the exceptions to the Best Evidence Rule. When we

say exceptions, meaning that, secondary evidence can be

admitted.

Please take note of section 5, 6 and 7.

Section 5 is in relation to paragraph A of section 4, Rule 130. 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 part, may prove its contents by a

copy, or by a recital of its contents in some authentic document, or by

the testimony of witnesses in the order stated.


10 | P a g e

Section 4. Original of document. —

(a) The original of the document is one the contents of which

are the subject of inquiry.

For purposes of admissibility, you cannot say “I cannot

produce the original your honor”, in other words, even if the

subject of the inquiry pertains to the contents of the

document, you cannot simply say that “I cannot produce the

original your honor because it has been lost.” That is not the

reason or the basis for the admissibility of secondary

evidence. You have to prove first the existence of the original.

Before you go saying that the original has been lost,

destroyed, etc, first you have to establish that the original

actually existed.

After you have established that the original existed, you now

go to establishing the cause or the reason for the

unavailability of the original. Under these 2 instances, you

may now present secondary evidence:

• to prove first the existence of the original

• establish the cause or the reason for the

unavailability of the original

Under another circumstance (Section 6, Rule 130 in relation

to paragraph B of Section 3, Rule 130): Section 6. When original document is in adverse party's custody or

control. — If the document is in the custody or under the control

of adverse party, he must have reasonable notice to produce it. If

after such notice and after satisfactory proof of its existence, he

fails to produce the document, secondary evidence may be

presented as in the case of its loss.

Section 3. Original document must be produced; exceptions. —




(b) When the original is in the custody or under the

control of the party against whom the evidence is

offered, and the latter fails to produce it after

reasonable notice;

You want to offer this particular piece of evidence but you do

not have the original. You now ask the court for an order

directing the adverse party who is in possession of the

original to produce the original. The court now gives notice to

the adverse party to produce the original, if the adverse party

who is in possession of the original refuses or does not

produce the original, then you may be allowed to present

secondary evidence. The point is reasonable notice has

already been given.

There’s one case that the intended offeror was aware that

the original actually existed but it was in the possession of the

adverse party. He asked the court to direct the adverse party

who is in the possession of the original to please produce it in

court because I intend to offer that particular piece of

evidence. The adverse party acknowledged the fact that he is

actually in possession of the original but, sabi n’ya, he does

not like to produce it because it might be incriminatory of me

if I produce the original. Question: under those circumstances,

can the party now desiring to present the original be allowed

to present a photocopy of that original?

Yes! Irrespective of the reason! What is important is

that he is given, the adverse party, is given

reasonable notice to produce it.

paragraph C of section 3, Rule 130: Section 3. Original document must be produced; exceptions. —




(c) When the original consists of numerous accounts

or other documents which cannot be examined in

court without great loss of time and the fact

sought to be established from them is only the

general result of the whole; and

For example: let’s say the original consists of voluminous

documents and you only want to establish one point

contained in those documents. For example, business

transaction for the day. You want to establish the financial

condition of that particular business establishment for that

particular day and that could be evidenced by sales invoices,

delivery receipts, et cetera. You need only to establish by

those voluminous records what secondary evidence may you

need. (hah?) Kasi without great loss of time, you get a

certification that on this particular day, this is actually the

financial condition. But this has to be certified to or this has

to be issued by the person who is in actual custody of the

records.

Next, (paragraph D of section 3, Rule 130) Section 3. Original document must be produced; exceptions. —




(d) When the original is a public record in the custody of

a public officer or is recorded in a public office.

There is such a thing as “Irremovability of Public Records”.

Pwede syang certify-an, unless there is a court order that the

public record be brought to court, that particular piece of

evidence can be certified to but only by the public officer who

is in custody.

Now, Section 4 paragraph B: Section 4. Original of document. —

(b) When a document is in two or more copies

executed at or about the same time, with identical

contents, all such copies are equally regarded as

originals.

Pwede dito yung duplicate originals. Pwedeng pumasok dito

yung mimeograph. Each mimeograph copy is regarded as an

original pero copy yun but it is generated at the same time.


11 | P a g e

Now what if one mimeograph copy is photocopied?

That Xerox copy is secondary. NYK doctrine

Section 8. Party who calls for document not bound to offer it. — A party who

calls for the production of a document and inspects the same is not obliged

to offer it as evidence.

Parole Evidence Rule

Section 9. Evidence of written agreements. — When the terms of an

agreement have been reduced to writing, it is considered as containing all

the terms agreed upon and there can be, between the parties and their

successors in interest, no evidence of such terms other than the contents of

the written agreement.

However, a party may present evidence to modify, explain or add to the

terms of written agreement if he puts in issue in his pleading:

(a) An intrinsic ambiguity, mistake or imperfection in the written

agreement;

(b) The failure of the written agreement to express the true intent

and agreement of the parties thereto;

(c) The validity of the written agreement; or

(d) The existence of other terms agreed to by the parties or their

successors in interest after the execution of the written

agreement.

The term "agreement" includes wills.

When you go to the Parole Evidence, what is Parole evidence?

Parole evidence is external. Outside.

Under the Parole evidence rule, when the parties come to an

agreement, they reduce their agreement into writing, that

written agreement is the only evidence of the terms agreed

upon.

Parole Evidence: that written agreement is the only evidence

of the terms agreed upon, that will bar all other evidence

except that written agreement. That is Parole evidence.

You can only present Parole evidence under certain

circumstances: “However, a party may present evidence to

modify, explain or add to the terms of written agreement if

he puts in issue in his pleading:

(a) An intrinsic ambiguity, mistake or imperfection in

the written agreement;

(b) The failure of the written agreement to express the

true intent and agreement of the parties thereto;

(c) The validity of the written agreement; or

(d) The existence of other terms agreed to by the

parties or their successors in interest after the

execution of the written agreement.

Under any of these exceptions, you may be allowed to

introduce evidence other than the written agreement to

prove the terms agreed upon.

When there is intrinsic ambiguity – what is your idea of

intrinsic ambiguity?

If the document is clear on its face, and ambiguity

arises from other sources.

For example:

A deed of donation, nandun yung donor, he would

say out of pure liberality on my part, I am donating

my 2010 BMW two-seater color Red to Jose

Fernandez. Diba very clear yung Deed of Donation

on its face? In your Civil Law, you know that for the

validity of a Deed of Donation it needs acceptance by

the donee. Pero dalawang tao dadating, Jose

Fernandez Sr. and Jose Fernandez Jr. Where does

the ambiguity arise? Ambiguity arose because two

Jose Fernandezes arrived. Who between the senior

and the junior is the donee? Question: can you now

be allowed to present Parole evidence – evidence

other than particular written document?

Yes.

What is the purpose for allowing the introduction of evidence

outside the written instrument?

To modify, to explain.

The best evidence is the original, but we invoke the best

evidence only if the subject of the inquiry pertains to the

contents of the document.

Testimonial Evidence

Section 20. Witnesses; their qualifications. — Except as provided in the next

succeeding section, all persons who can perceive, and perceiving, can make

their known perception to others, may be witnesses.

Religious or political belief, interest in the outcome of the case, or conviction

of a crime unless otherwise provided by law, shall not be ground for

disqualification.

Qualification of witnesses – here you have to distinguish

Competence from Credibility.

What is competence?

It is the fitness of an individual to testify. So when

you speak of competence, you speak of

qualifications.

Credibility, on the other hand, is the quality of a

witness that renders his testimony worthy of belief.

Credibility is actually believability.

When, therefore, does the court determine competence?

When does the court determine credibility?

Competence is determined at the time the witness is

called to the witness stand. Kasi titingnan kung fit

sya to testify e. Credibility, on the other hand is


12 | P a g e

determined only after the witness has been

determined to be competent or qualified. So,

competent nga yung witness but do you give credit

to what he’s saying

What are the qualifications of a witness?

All those who can perceive and perceiving and make

known their perception to others can be a witness.

So number 1, you must be able to perceive. How are you

going to perceive?

Through your senses. Sight, smell, taste, hear, touch.

Number 2, you must be able to relate what you have

perceived to others.

REM2_4

Competence vs credibility

it is competence that is first determined before

credibility because once the witness is called to the

witness stand, jan ide-determine if he is competent.

Competence is said to be fitness of an individual to testify. So

if we talk about competence you relate that qualification.

Qualification of a witness must be able to perceive, how

through his senses and after he has officially perceived be

able to relate what he has perceived to others.

Section 21. Disqualification by reason of mental incapacity or immaturity. —

The following persons cannot be witnesses:

(a) Those whose mental condition, at the time of their production for

examination, is such that they are incapable of intelligently

making known their perception to others;

(b) Children whose mental maturity is such as to render them

incapable of perceiving the facts respecting which they are

examined and of relating them truthfully.

Sec. 21 Disqualifications, the following persons cannot be

witnesses. very important disqualification:

• those whose mental condition this is a

disqualification by reason of mental incapacity

• those whose mental condition at the time of their

production for examination is such that they are

incapable of making their perception known to

others

“at the time of their production for examination” which

means that first point when is a witness produced for

examination?

At the time the witness is called to the witness

stand. I am calling to the witness stand your Honor

Mr. X. Once the witness is called to the witness

stand his testimony is offered. The testimony of this

witness your Honor is being offered for the following

purposes at that point mag oobject.

Objection to the purpose or objection to the very

qualification of the witness. By the way, once the

witness is called on the witness stand, once the

witness is produced for examination you offer the

testimony, you offer the testimony not the witness.

Once the witness is called to the witness stand jan ide-

determine kung the witness is competent. Therefore, this

qualification “if at the time of the production for examination

at the time he is called to the witness stand to testify” o-

objectan, idi-disqualify by reason of mental incapacity for

example.

Example:

If during the occurrence of the incident everybody saw the

witness was seen right at the crime scene, after the incident

there is now a prosecution for murder, so syempre sya ang

eye witness because everybody saw him there right at the

crime scene, so he is now made a witness. at the time of the

occurrence of the incident he was there, at the time of the

prosecution of the case, this particular witness pagdating nya

sa court room, pag upo nya sa witness stand he was already

laughing, he was already crying he was already, dancing

obviously insane, question, is he competent to testify?

No, because obviously he is insane at the time of his

production for examination, meaning at the time of

his production to the witness stand he may have

perceived but at the time he is produced for

examination he is not capable of relating what he

has perceived to others.

Disqualification refers to competence.

Able to perceive and able to relate what he has perceived to

others

at the time of the occurrence of the incident everybody saw

this person right at the crime scene but while the victim was

being stabbed to death, the witness was clapping or rejoicing

obviously insane, but he was there at the crime scene so -------

he must have perceived. There is a subsequent prosecution

based on that incident at the time the witness is called to the

witness stand, at the time the witness is produced for

examination, he is sane, question, is he competent to testify?

Yes, he is competent to testify because “at the time

of his production for examination” that is when we

should determine if he is competent.

He can testify, but, is he credible? it is not a question

of competence anymore because at the time he is

called to the witness stand he is sane. Now, he can


13 | P a g e

relate whatever he thinks he has seen, now there is

a question of credibility because he was obviously

insane at the time of the occurrence of the incident

Section 21. Disqualification by reason of mental incapacity or immaturity. —

The following persons cannot be witnesses:

(b) Children whose mental maturity is such as to render them

incapable of perceiving the facts respecting which they are

examined and of relating them truthfully.

Very important disqualification by reason of immaturity. you

know very well that the rules on evidence has not been

revised since 1989 so no amendment, but this provision has

already been amended because “those children whose

mental maturity in such as to render them incapable of

perceiving the facts respecting to which they are examined

and relating them truthfully” this is already amended by the

Child Witness Examination rule.

Under the child witness examination rule, in relation to this

particular provision, the competence of the child witness is

now presumed by express provision of the rule. The

competence of a child witness is now presumed however,

disputable. The competence is now presumed, whoever

assails the competence of the child has the burden of proving

that the child is incompetent.

It is set already, it did not affect the sanction, you know under

the previous provision, the judge has the obligation to

determine if the child is competent the judge has to

determine if the child is lying the judge has to determine if

the child is telling the truth kung naiintindihan nya yung oath,

but now, the child is presumed to be competent as a witness.

The judge need not determine anymore whether or not the

child is competent to testify kasi nakalagay na sa rule the

judge will enter into the picture if there is an objection as to

the competence of the child otherwise that is a set

presumption.

The burden of proving otherwise is on the person who assails

the competence of the child.

Section 22. Disqualification by reason of marriage. — During their marriage,

neither the husband nor the wife may testify for or against the other without

the consent of the affected spouse, except in a civil case by one against the

other, or in a criminal case for a crime committed by one against the other or

the latter's direct descendants or ascendants.

Section 24. Disqualification by reason of privileged communication. — The

following persons cannot testify as to matters learned in confidence in the

following cases:

(a) The husband or the wife, during or after the marriage, cannot be

examined without the consent of the other as to any

communication received in confidence by one from the other

during the marriage except in a civil case by one against the other,

or in a criminal case for a crime committed by one against the

other or the latter's direct descendants or ascendants;

Disqualification between the spouses, there are 2 rules on

the disqualification between the spouses, one spouse is

disqualified from testifying for and against the spouse

without the consent of the affected spouse:

• disqualification by reason of the marriage (marital

disqualification rule)

• disqualification between the spouses by reason of

privilege communication

the number one to remember with respect to this

disqualification, this disqualification will not apply to stop the

spouses from testifying if the affected spouse has given

consent, of course, it will not apply ok you may testify against

me for all I care pag pumayag no problem, the disqualification

will apply if no consent has been given, therefore, if no

consent was given, you cannot testify, you have to first

secure the consent of your spouse

Under the marital disqualification rule, the disqualification

between the spouses is by reason of the marriage, since it is

by reason of the marriage, you have to secure first the

consent of the spouse involved in the case. if the

disqualification is because they are married therefore the

disqualification subsists only during the marriage but it must

be a legitimate marriage. The rationale is the preservation of

the harmony in the family

On the other hand, if it is a disqualification between the

spouses by reason of the privileged communication, the

disqualification is not because they are married, it is an

incident matter that they are married. The spouse cannot

testify on a matter that has been relayed to him or her in

confidence by his or her spouse, “so I am giving this to you in

confidence ergo you cannot testify on this before any court.”

“you cannot speak about this without first securing my

consent” that is disqualification between the spouses not

because of the marriage but because of the privilege, the

confidential nature of the information relayed by one spouse

to the other spouse. Now, because the disqualification is

because of the privilege the confidential nature, there is a

need that this disqualification subsists even after the

marriage, because it is not by reason of the marriage, if it is

because of the marriage pag ex na sila, pag annulled marriage

na, they can testify even without securing the consent. But if

it is a disqualification based of the privileged nature or the

confidential nature of the information relayed by one spouse

to the other spouse then he cannot even if the marriage has

been terminated, there is a need to secure the consent.

If the spouse had given consent before hand, we don’t apply

the disqualification, except in two instances, in other words

under these 2 instances you don’t need to secure consent

either because of the marriage or because of the privileged

nature of the communication:


14 | P a g e

• if it is a civil case filed by one against the other or

• in a criminal case for a crime committed by one

spouse against the other spouse or the latter’s

ascendants or descendants, direct descendants

direct ascendants

Under these 2 exceptions there is no need to secure consent

Section 23. Disqualification by reason of death or insanity of adverse party.

— Parties or assignor of parties to a case, or persons in whose behalf a case

is prosecuted, against an executor or administrator or other representative

of a deceased person, or against a person of unsound mind, upon a claim or

demand against the estate of such deceased person or against such person

of unsound mind, cannot testify as to any matter of fact occurring before the

death of such deceased person or before such person became of unsound

mind.

The disqualification under Sec, 23 this disqualification by

reason of the insanity or death of the adverse party. This is

known as the Dead Man Statute or the Survivor Rule.

Parties or assignors of parties to a case or persons in whose

behalf a case is prosecuted, against an executor or executor

or other representative of a deceased person, or against a

person a person of unsound mind, upon a claim or demand

against the estate of such deceased person or against such

person of unsound mind, cannot testify as to any matter of

fact occurring before the death of such deceased person or

before such person became of unsound mind.

Under what circumstances can you invoke the Dead Man

Statute? Remember Dead Man Statute involves a

disqualification also:

• if the case involves a claim against the estate of a

person who died or has become insane the action

involves a claim against the estate of a person who

already died or became insane

• The action is against the executor, administrator or

representative of the person who died or who

became insane.

The action is filed against the estate of a person who died or

became insane, the action is filed against the executor,

administrator or representative of the person who died or

became insane. Under these 2 premises, who is disqualified

from testifying in the claim?

The claimant, the plaintiff or the person in whose

behalf the claim is prosecuted

But is he disqualified from testifying on all points?

No, he is only disqualified from testifying on a

matter of fact occurring before the decedent died or

before such person became of unsound mind.

For example:

I filed a claim against the estate of Mr. X. I filed it

against the executor or administrator of the estate

of Mr. X, who already died. I filed a claim against his

estate. I cannot, on the witness stand, testify that

before he died, Mr. X told me that once he dies, I will

inherit his 1,000 sq. M lot in Ayala, Alabang.

I am prevented to testify because he cannot dispute.

Remember, this general statute is for protection of

the estate of the person who died or became insane.

But with respect to other points, I am not

disqualified because precisely I am the claimant. In

other words, I can prove my claim through other

means but not through a matter of fact which

occurred before the person died or became insane

which can no longer be disputed,



following cases:

(b) An attorney cannot, without the consent of his client, 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 be examined, without the consent of the

client and his employer, concerning any fact the knowledge of

which has been acquired in such capacity;

An attorney without the consent of his client consent, be

examined as to any communication made by the client to him

or his advice given thereon on the course or in the view to a

lawyer-client relationship.

“with a view to professional employment” meaning there no

lawyer-client relationship yet, the disqualification can already

attach because when a prospective client goes to a lawyer

the lawyer will ask the prospective client, “you have to lay

your cards in the table for me to assess our chances.” Those

matters that are relayed by the prospective client to the

lawyer are privilege. It is privilege, you don’t violate the trust

reposed on you. “with a view to” means that he wants to hire

you , so he is bound. Whatever you obtain “with a view to”,

(there is no lawyer-client relationship yet or the employment

was not effected) you still are bound by the privilege of

whatever that has been relayed to you.



following cases:

(c) A person authorized to practice medicine, surgery or obstetrics

cannot in a civil case, without the consent of the patient, be

examined as to any advice or treatment given by him or any

information which he may have acquired in attending such

patient in a professional capacity, which information was

necessary to enable him to act in capacity, and which would

blacken the reputation of the patient;


15 | P a g e

A person authorized to practice medicine, surgery or

obstetrics cannot in a civil case, QUALIFIED, in a civil case, not

in a criminal case because, precisely, in a criminal case they

are required to appear to explain. so in a civil case to prevent

the appearance to blacken the memory, etc.. civil case lang

ang disqualification not in a criminal case,



following cases:

(d) A minister or priest cannot, without the consent of the person

making the confession, be examined as to any confession made to

or any advice given by him in his professional character in the

course of discipline enjoined by the church to which the minister

or priest belongs;

a minister or priest cannot, without the consent of the person

making the confession, be examined as to any confession

made to any or advice given by him in his professional

character in the course of the discipline..

You read the word “confession”. Confession for purposes of

securing absolution for one’s sins. Confession for the purpose

of obtaining absolution for one’s sins.

The detained prisoner is in the courtroom. Sometimes, there

are priest and nun present to give moral support. the priest is

sitting beside the detained prisoner, in the course of the

conversation, “alam mo father ako naman talaga ang

nagnakaw, kaya ako nakakulong kasi ako naman talaga ang

nagnakaw”. That is an admission relayed to a priest. Will the

priest be disqualified from testifying on that admission?

No, because it was not given in the course of a

confession. To disqualify him from testifying on that

point, it must have been given to him in the course

of the confession.

What is the purpose of confession?

To obtain absolution for one’s sins.



following cases:

(e) A public officer cannot be examined during his term of office

or afterwards, as to communications made to him in official

confidence, when the court finds that the public interest would

suffer by the disclosure.

Public officer cannot be examined during the term of office.

Section 25. Parental and filial privilege. — No person may be compelled to

testify against his parents, other direct ascendants, children or other direct

descendants.

Now testimonial privilege, no person may be compelled to

testify against his parents, other direct ascendants, children

or other direct descendants. The person cannot be compelled

question, can he volunteer to testify?

Yes, he cannot be compelled to testify against his

parents etc.. but he may volunteer to testify.

4 statements:

• Admission

• Confession

• Declaration against one’s interest (as an exception

to the hearsay rule)

• Self-serving statements

The first 3 may be admissible but self-serving statements it

will never be admissible. It is a worthless piece of statement.

it serves the interest of the declarant.

Example: pag sinabi ni Mr. X, “ako ay guapo, eh sa totoong

buhay, he has the face only a mother can love it’s a totally

worthless statement.

But admission, confession, declaration against interest they

may be admissible.

Section 26. Admission of a party. — The act, declaration or omission of a

party as to a relevant fact may be given in evidence against him

What is an admission?

It is an acknowledgement of a fact. It is an

acknowledgement of a certain incriminating fact

from which you draw an inference of guilt. There is

no total acceptance of any guilt. You acknowledge

incriminating facts from which the hearer or the one

listening to you may draw an inference of guilt

Confession, it is an unqualified, unconditional

acknowledgement of guilt.

“I did it, I killed him” that’s confession.

“I was at that place, I took it because” (you simply draw)

that’s an admission.

Declaration against one’s interest, why is it admissible?

By the name itself, you say something that is against

your interest.

why is it admissible? In fact even if the one who made the

declaration died, it is still admissible as an exception to the

hearsay rule even if there is no opportunity for cross-

examination, why is it admissible?

Because the premise is that every person always

want to say something good about himself.


16 | P a g e

you do not normally say anything against yourself,

or anything that will be incriminatory of you.

Therefore, if you say something which is against your

interest, the law may consider true because you

would not have said it, if you would not have

believed it to be true.

REM2_5

Section 27. Offer of compromise not admissible. — In civil cases, an offer of

compromise is not an admission of any liability, and is not admissible in

evidence against the offeror.

In criminal cases, except those involving quasi-offenses (criminal negligence)

or those allowed by law to be compromised, an offer of compromised by the

accused may be received in evidence as an implied admission of guilt.

A plea of guilty later withdrawn, or an unaccepted offer of a plea of guilty to

lesser offense, is not admissible in evidence against the accused who made

the plea or offer.

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

occasioned by an injury is not admissible in evidence as proof of civil or

criminal liability for the injury.

“in civil cases, an offer of compromise is not an admission of

any liability, and is not admissible in evidence against the

offeror”

Luciano Tan vs. Rodil Enterprises (2006)

Now, it is qualified in that case of Luciano Tan. There it was

said that if the debtor does not acknowledge the existence of

the debt but he simply makes an offer of compromise to put

an end to litigation, that offer is not admissible because that

is not an admission of liability. He does not acknowledge any

debt.

Now on the other hand, if the debtor acknowledges the

existence of the debt then his offer of compromise is

definitely admissible in evidence.

Now if you notice in Section 27, second paragraph: “In

criminal cases, except those involving quasi-offenses (criminal

negligence) or those allowed by law to be compromised, an

offer of compromised by the accused may be received in

evidence as an implied admission of guilt.”

Itong Criminal Negligence, ito yung Article 365 of the Revised

Penal Code. Criminal cases – this means that as a penal

offense, it can actually be settled. It can be compromised.

“Those allowed by law to be compromised” – for example,

tax cases. Tax cases are penal in nature because they provide

for imprisonment but they can be compromised as

specifically provided for in the NIRC.

Read: People vs. Ricardo Santos - the doctrine here is

different.

This third paragraph is likewise important. “A plea of guilty

later withdrawn, or an unaccepted offer of a plea of guilty to

lesser offense, is not admissible in evidence against the

accused who made the plea or offer“.

Two situations are covered here: 1. Plea of guilty later

withdrawn; 2. Unaccepted offer of a plea of guilty to a lesser

offense – very popular ito ngayon, Plea Bargaining

Agreement.

Plea of guilty later withdrawn

Once you plead guilty, that is recorded but if later

you withdraw your plea of guilty and you are

allowed to withdraw your plea of guilty. That is

considered as having removed from the records. Kasi

dito “a plea of guilty later withdrawn is not

admissible in evidence”, it only means that it cannot

be used against you.

Unaccepted offer of a plea of guilty to a lesser offense

This is Plea Bargaining. You will likewise know that

under the Rules on Criminal Procedure that if an

accused offers to plead guilty to a lesser offense that

is already entering into a plea bargaining agreement.

If you offer to plead guilty to a lesser offense, that is already

in the nature of a compromise and you know that if you

compromise, it is already an implied admission of guilt. But

under the Rules on Criminal Procedure, for your plea of guilty

to the lesser offense to be valid, it has to be consented to or

concurred in by the private offended party and the public

prosecutor.

If neither the private offended party nor the public

prosecutor did not give consent to the offer, it will not be

admissible against the accused because under the Rules on

Criminal Procedure, in order for it to be valid, you need the

consent of the private offended party and the public

prosecutor, such that if the accused offered to plead guilty,

and as I said, that is in effect an offer of compromise, still if

it’s not consented to, wala yan, walang effect, and therefore

it should not be considered as admissible against the accused.

Rule on Hearsay Evidence

Section 36. Testimony generally confined to personal knowledge; hearsay

excluded. — 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.

Matters of personal knowledge [means that they are] matters

obtained by him through the use of his senses. The rule is a


17 | P a g e

witness cannot testify on any matter of fact which has been

simply relayed to him by a third person.

If a witness testifies on matters which is not of his personal

knowledge, that is hearsay. Objectionable ‘yan on the ground

that it is hearsay.

Relate this to Independently Relevant Statements because

an Independently Relevant Statement would appear to be in

the nature of hearsay.

Where lies the difference?

Hearsay is certainly not admissible but an

Independently Relevant Statement is admissible.

For example, I am on the witness stand. If I testify, “X told me

that Y is a drug lord.” My statement basically is hearsay

because I am stating a matter of fact which has been simply

relayed to me by X. If my statement that “X told me that Y is a

drug lord” is offered to prove that the truth of the fact that Y

is a drug lord, it is hearsay because I have no personal

knowledge of the fact that Y is a drug lord.

On the other hand, if my statement is offered to prove the

fact that that statement was given to me by X, X told me,

then that is an Independently Relevant Statement and that is

admissible. Why?

Because yung statement is offered to prove simply

that such statement was made.

What are the two reasons for the inadmissibility of hearsay

evidence?

1. Because of the Rule: A witness can testify

only to those facts which he knows of his

personal knowledge.

2. Hearsay is inadmissible because of the

absence of cross-examination or

opportunity for cross-examination.

Comes now the exceptions, because as a rule, if a particular

statement is not subjected to cross-examination or not tested

on cross-examination, you test the truth, the accuracy of the

statement, then that is hearsay.

Whose cross-examination?

The declarant, the one who made the declaration.

For example: even if an affidavit is placed under oath and it is

utilized in evidence in open court, for as long as the affiant is

not subjected to cross examination, that particular affidavit,

even if on its face it appears that it has been sworn to before

a notary public or a person authorized to administer oath,

that is inadmissible. On what ground?

Hearsay.

Under the exceptions to the Hearsay Rule, even without the

cross-examination, that statement is basically hearsay but it is

admissible.

Exceptions to the Hearsay Rule:

1. Sec. 37. Dying declaration;

2. Sec. 38. Declaration against interest;

3. Sec. 39. Act or declaration about pedigree;

4. Sec. 40. Family reputation or tradition regarding

pedigree;

5. Sec. 41. Common reputation;

6. Sec. 42. Part of res gestae;

7. Sec. 43. Entries in the course of business;

8. Sec. 44. Entries in official records;

9. Sec. 45. Commercial lists and the like;

10. Sec. 46. Learned treatises;

11. Sec. 47. Testimony or deposition at a former

proceeding.

Dying Declaration Section 37. Dying declaration. — The declaration of a dying person, made

under the consciousness of an impending death, may be received in any case

wherein his death is the subject of inquiry, as evidence of the cause and

surrounding circumstances of such death.

1. The declarant must have made a declaration under

consciousness of an impending death.

2. The death must have been caused through

violence. It is not by natural causes.

3. The declarant would have been a competent

witness had he been alive.

Please remember, if you’re going to invoke as an exception to

the Hearsay Rule, the Dying Declaration, the declarant must

have died. You cannot invoke that if he survived.

Let’s say in a subsequent prosecution for Frustrated Murder

or Frustrated Homicide, his testimony was offered for

purposes of identifying the malefactor, the culprit. Question –

can his declaration made by him under consciousness of an

impending death be admissible in evidence as a dying

declaration?

No. He must have died! “wherein his death is the

subject of inquiry”.

It can be used as Part of Res Gestae.

“Under consciousness of an impending death”, what do we

mean by that? Remember kailangang ma-establish yung

elements. Why?

Because there is no one to be cross-examined

anymore. He is dead. It means that at the time he

made that declaration, he actually believed that he

was dying.


18 | P a g e

What is the rationale?

Because somebody who believes himself to be dying

will not tell a lie because he believes that if he tells a

lie and he dies, he will go straight to hell.

Example, this case, here the victim sustained several stab

wounds and he was brought to the emergency room. Sabing

ganyan, “who did this to you?” then he identified his

assailant. He was asked by the doctor, “how do you feel? Do

you believe that you’re dying?” Ang sagot nya, “I think so.”

Hindi inaccept ng Supreme Court as a dying declaration

because ibig sabihin daw he was still hoping he’d survive.

Now if that statement cannot be admitted as a dying

declaration because the declarant survived, it can be

admitted as part of res gestae.

Part of Res Gestae

Section 42. Part of res gestae. — Statements made by a person while a

starting occurrence is taking place or immediately prior or subsequent

thereto with respect to the circumstances thereof, may be given in evidence

as part of res gestae. So, also, statements accompanying an equivocal act

material to the issue, and giving it a legal significance, may be received as

part of the res gestae.

Two important parts of Res Gestae:

1. Spontaneous exclamations

2. Verbal Acts

Either of the two will constitute Res Gestae.

Spontaneous Exclamations – you simply verbalize what you

see. You made a statement at the time of the occurrence of

the incident or immediately before or immediately after.

There is no exercise of judgment; you simply verbalize what

you see. There is no opportunity for cross-examination.

Verbal Acts – statements accompanying an equivocal act

material to the issue, and giving it a legal significance, may be

received as part of the res gestae.

First, you have to find out if there is an equivocal act. When is

an act equivocal?

If that particular act is subject to different

interpretations, it is ambiguous, you don’t really

know what the purpose of the perpetrator is, why he

did it.

If it is determined that the act is equivocal, then check if the

statement is made together with the performance of that

equivocal act and that statement give meaning to that

equivocal act.

For example: If all of you see me hand over to her a

bundle of money but you only see me and you don’t

hear me say anything. Diba you’re in doubt? Is my

act of handing over to her a bundle of money

equivocal?

Yes, because you wouldn’t know what my

purpose is for handing over that money.

Now if all of you see me hand over to her a bundle of money

and at the same time sabi ko, “o, eto na yung inuutang mo

sa’kin.” Diba my statement gave meaning to my otherwise

equivocal act? That is verbal acts.

REM2_6

In hearsay, there is no opportunity for cross-examination but

under these exceptions even if there is no opportunity for

cross examination, it is admissible.

But as a rule, as long as it does not fall among any of these

exceptions, absence of cross examination, hearsay, therefore,

inadmissible.

In dying declaration, he must have died. If did not die and if it

was given under circumstances where it is spontaneous then

the declaration would form part of the res gestae.

The other part of res gestae which is verbal acts.

Next important exception to the hearsay rule is declaration

against interest. There are 4 statements that we must

remember:

• declaration

• admission

• declaration against one’s interest

• self-serving statements

In the first 3, they are admissible. It is only the self-serving

statement that is inadmissible because it is worthless; it

serves the interest only of the declarant. One admissible

statement is the declaration against interest. The declaration

is made by the person deceased, tingnan nyo yung mga

gumawa nito wala na opportunity for cross-examination , the

declaration of a person deceased or is unable to testify

against the interest of the declarant, if the fact asserted in

the declaration at the time it was made was so contrary to

the declarant’s own interest that a reasonable man in his

position would not have made the declaration unless he

really mean’s it. The rationale for this, even if there is already

absence of cross-examination because the declarant already

died or became unable to testify is the first premise it is

always normal for somebody to say something good about

himself. it is normal for somebody to avoid saying anything

incriminatory about himself. If possible you’d like to put

yourself in a pedestal. That is why the rationale is that if you

say something which is against your interest, it may be true


19 | P a g e

because you would not have said it, if you had not believed it

to be true because it is against your interest. You would be

incriminated by these statements, why are you saying it?

Because the presumption is you are saying it even if it is

incriminatory of you because you believed it to be true. That

is the rationale of the admissibility of one’s declaration

against interest even if the declarant already died or became

unable to testify.

Entries in the course of business, this will be illustrated in the

case.

Section 43. Entries in the course of business. — Entries made at, or near the

time of transactions to which they refer, by a person deceased, or unable to

testify, who was in a position to know the facts therein stated, may be

received as prima facie evidence, if such person made the entries in his

professional capacity or in the performance of duty and in the ordinary or

regular course of business or duty.

Exception to the hearsay rule please take note of Sec. 47.

Testimony or deposition at a former proceeding.

Section 47. Testimony or deposition at a former proceeding. — The

testimony or deposition of a witness deceased or unable to testify, 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 him.

The testimony or deposition of a witness deceased or unable

to testify given in a former proceeding whether judicial or

administrative, so it doesn’t have to be strictly judicial.

if the testimony of a witness who has already died or became

unable to testify given in a former case or proceeding judicial

or administrative, involving the same parties and same

subject matter may be given in evidence against the adverse

party who had the opportunity to cross examine him. Again,

the declarant died or became unable to testify, this

contemplates a situation where there are actually 2 cases

involved, involving however, the same parties and the same

subject matter.

For example: in one case, a witness testified. After he

testified, he died. In a subsequent judicial proceeding based

on the same subject matter as that in the administrative

proceeding, there is a judicial action that has been instituted,

involving the same parties and subject matter as in the admin

case, but the witness who testified in the admin case (in the

first case), died after having given his testimony. Question,

can the testimony of this witness, who died, be introduced in

evidence in the subsequent judicial proceeding involving the

same parties, involving the same subject matter as that

involved in the first case can it be admitted? Can the

testimony of this witness be admitted?

There is a qualifying phrase, “for as long as there was

opportunity for to cross-examine him in the first

case”. Even though he was not cross examine but

there is opportunity to cross-examine. Because if

there is no opportunity, definitely, it’s hearsay. It will

not be introduced.

This example is an actual case, when I was a MTC Judge in

Pasig, there was an incident that happened, in the port of

zamboanga City, they filed an administrative complaint, they

were maltreated by a Philippine Ports Authority Official in

Zamboanga. So when they came back to Manila, they filed an

administrative complaint against the Philippine Ports

Authority official. During the administrative proceeding the

wife was questioned under oath and counter questioned, in

effect, she was cross examined by the counsel of the

respondent public official. After she testified, she became

insane. The husband now pursued the case and he now filed a

judicial action. So, in the judicial action, if it is a personal

action you go file it in the place where the plaintiff or

defendant resides at the election of the plaintiff. So he filed it

in Pasig, because that is where he resides. It was action for

damages based on the incident which was the subject of the

admin case. During the judicial proceedings before my sala,

they sought to introduce now the testimony of the wife as

corroborative evidence of the testimony of the husband for

the purpose of sustaining their case for damages. “objection!”

sabi nung lawyer, “that cannot be allowed, that cannot be

admitted in evidence because i was not able to cross examine

this particular witness. So there is absence of opportunity for

my client to cross-examine” correct? Is it objectionable?

Because at the time it was produced wala na eh, unable to

testify na, the wife who was able to testify at the admin

Qualify, because under the rules, the question was,

you did not cross-examine, what does the rule say?

there must be an opportunity for cross examination

on the part of the adverse party, the defendant. He

may be represented by another counsel ikaw ba ang

defendant? No, i am the counsel for the defendant.

So overruled.

It is not the counsel, it is the adverse party who is

given the opportunity to cross-examine. The lawyer

is only representing the adverse party. It was shown

that the wife was cross-examined during the admin

proceeding. It may be given in evidence against the

adverse party not against the adverse counsel. It was

the adverse party who had the opportunity to cross-

examine him.


20 | P a g e

Opinion Rule

Section 48. General rule. — The opinion of witness is not admissible, except

as indicated in the following sections.

Section 49. Opinion of expert witness. — The opinion of a witness on a

matter requiring special knowledge, skill, experience or training which he

shown to posses, may be received in evidence.

Section 50. Opinion of ordinary witnesses. — The opinion of a witness for

which proper basis is given, may be received in evidence regarding —

(a) the identity of a person about whom he has adequate knowledge;

(b) A handwriting with which he has sufficient familiarity; and

(c) The mental sanity of a person with whom he is sufficiently

acquainted.

The witness may also testify on his impressions of the emotion,

behavior, condition or appearance of a person.

Fact – that which perceive through one’s senses

Opinion – conclusion drawn from facts

General Rule: Opinion not admissible

Exceptions:

1. expert opinion

2. Opinions of ordinary witness in 3 circumstances:

(a) the identity of a person about whom he has

adequate knowledge;

(b) A handwriting with which he has sufficient

familiarity; and

(c) The mental sanity of a person with whom

he is sufficiently acquainted.

Before opinion can be accepted, he has to lay basis for his

testimony or opinion

Expert witness need not be a degree holder or professional

Witness should be qualified before he can give testimony if

competence is not accepted by the adverse party

Opinion of expert witness is not conclusive on the court, but

may be persuasive. Such opinion can be rebutted by another

opinion of an expert witness by the adverse party

Opinion of ordinary witness, there must be basis or lay basis

for such opinion; establish adequate knowledge; sufficient

familiarity and sufficient acquaintance

On the last par of Sec 50. It speaks of impression

Impression – stating on observation. It is not an opinion

therefore admissible no need for qualification

Character evidence

Section 51. Character evidence not generally admissible; exceptions: —

(a) In Criminal Cases:

(1) The accused may prove his good moral character which is

pertinent to the moral trait involved in the offense charged.

(2) Unless in rebuttal, the prosecution may not prove his bad

moral character which is pertinent to the moral trait

involved in the offense charged.

(3) The good or bad moral character of the offended party may

be proved if it tends to establish in any reasonable degree

the probability or improbability of the offense charged.

(b) In Civil Cases:

Evidence of the moral character of a party in civil case is

admissible only when pertinent to the issue of character

involved in the case.

(c) In the case provided for in Rule 132, Section 14

Very particular in par. 2 “Unless in rebuttal, the prosecution

may not prove the bad moral character of the accused which

is pertinent to the moral trait involved in the offense

charged.”

If you see the prefatory statement unless in rebuttal. When is

there rebuttal?

You are referring to the order of trial, the sequence

in the presentation of evidence.

In criminal cases, it is the prosecution which will present first

evidence because they have the burden of proof, unless the

accused interposes a negative defense or a denial or alibi.

Negative wala syang burden but if he asserts an affirmative,

there can be a reverse order of the trial. For as long as the

accused interposes a negative defense wala syang burden, in

which case, the prosecution presents evidence first. After the

prosecution has already rested their case, the defense then

presents their evidence. So after the defense has formally

rested their case, rebuttal na, ayan irerebut ng prosecution

whatever the accused has presented which means that, in the

rule “unless in rebuttal” the prosecution may not prove the

bad moral character of the accused even if it is pertinent to

the moral trait involved in the offense charged, why?

Generally, the burden of proof is on the prosecution

unless and until the accused interposes a negative

defense which means that even if the prosecution,

kasi dito in rebuttal the prosecution has a truck load

of evidence that the accused is a bad person, that

the accused is a bad fellow, that the accused is a

person of moral character, even if the prosecution

has a truck load of evidence at the time of the

presentation of the evidence in chief, hindi pwedeng

iprisenta ng prosecution, kasi ang burden of proof on


21 | P a g e

the prosecution is to prove the essential elements of

the crime charged and to prove the guilt of the

accused beyond reasonable doubt. the prosecution

does not prove this essential elements of the crime

and the guilt beyond reasonable doubt by simply

presenting evidence that the accused is a person of

bad moral character therefore he did it. that it is

why after the presentation of evidence for the

accused if the accused presents evidence of his good

moral character that is the time that the prosecution

is given an opportunity to rebut. kasi sasabihin ng

accused “I did not do it. Well, I could not have done

it because I am a person of good moral character.” In

which case he laid himself opens for impeachment,

Pag sinabi nya “I couldn’t have done it because I am

a person of good moral character” so he lays himself

open for impeachment via rebuttal.

But if the accused does not present evidence of his

good moral character then, the prosecution cannot

present evidence of his bad moral character because

it is only in rebuttal that the prosecution can present

evidence of his bad moral character.

unless in rebuttal, the prosecution may not prove his

bad moral character which is pertinent to the moral

trait involved in the offense charged even if it is

pertinent to the moral trait involved in the offense

charged for as long as the accused has not presented

evidence of his good moral character, hindi pwedeng

mag present ng evidence ang prosecution.

1. The good or bad moral character of the offended party may be proved

if it tends to establish in any reasonable degree the probability or

improbability of the offense charged.

“either or” at any stage of the proceedings, it could be the

bad moral character of the private offended party or good

moral character of the offended party whoever presents that.

Example: in a prosecution for homicide. ang defense ng

accused is self-defense. He said “I did it I killed him but I acted

in self defense” why? Ipresent nya ngayon na during his

lifetime “he was a bully, every person he meets he hits, he

slaps, he kicks on the day it happened, he was running

towards me I had to defend myself,” That is admissible on

evidence on the bad moral character of the private offended

party because if he can prove it, it may tend in any

reasonable degree to establish the improbability of his having

committed the crime of homicide because he acted in self

defense. It is a justifying circumstance and if it is a justifying

circumstance it makes the act non-criminal. If it is justifying

no crime no criminal. So if was able to establish that he acted

in self defense and he was able to establish the bad moral

character of the private offended party, it would tend into a

reasonable degree to establish the improbability that in fact

he did not commit Homicide and killed him but under acts of

self defense.

RULE 131

Burden of Proof and Presumptions

Burden of proof vis a vis Burden of evidence

Section 1. Burden of proof. — Burden of proof is the duty of a party to

present evidence on the facts in issue necessary to establish his claim or

defense by the amount of evidence required by law.

claim or defense which means that either party can have the

burden of proof. Under what circumstances does it come to

play?

The rule is whoever asserts the affirmative has the

burden of proving that affirmative assertion

whoever alleges the affirmative, it could be the

defendant or the plaintiff, it could be the defense or

the prosecution, whoever asserts the affirmative he

has the burden of proving that affirmative assertion.

The one who asserts the negative does not have the

burden of proof.

Example: in a criminal prosecution, according to the

prosecution “he did it accused did it”, that is an affirmative

assertion. The accused will say “no, I did not do it”, that is a

negative assertion, who has the burden of proof?

The Prosecution, based on this rule. In all cases,

whoever asserts the affirmative has the burden of

proving that affirmative assertion.

so if the prosecution says “he did it, he committed

the crime.” the accused says “no, I did not do it,”

hindi pwedeng sabihin ng prosecution “prove it” that

I did not do it, wala syang burden because he is the

one asserting the negative

As distinguished from burden of evidence, burden of

evidence is the burden of moving forward with the evidence.

So when is that?

After the person asserting the affirmative has

satisfied his burden of proof.

When do we say that a person who asserts the affirmative

has satisfied his burden of proof?

If he has created a prima facie evidence in his favor

A prima facie is disputable but unless disputed it stands

reasonable facts and circumstances.


22 | P a g e

In criminal cases prima facie case what would it consists of?

Reasonable facts and circumstances that would

engender a reasonable ground to believe that a

crime has been committed and that the accused is

probably guilty thereof,

Prima facie, it would stand in a criminal case so long as the

prosecution or anyone for that matter can establish a prima

facie case, that will suffice for conviction, so long as it is not

controverted by competent contrary evidence.

If a party has satisfied his burden of proof that created a

prima facie case in his favor, tapos na in the meantime, he

has no more duty. The burden of evidence is now shifted to

the other party, only for the purpose of destroying whatever

prima facie case has been created by the other party. Pag

hindi yan na destroy pag hindi yan na dispute, that would

suffice for conviction.

The rule is burden of proof, if you assert the affirmative, you

prove it. For as long as you assert the affirmative, the burden

of proof is on you. It does not shift. Once you have satisfied

the burden of proof, it shall have created a prima facie case in

your favour, then, the burden of evidence is now shifted to

the other party only to destroy whatever prima facie case he

have created, pag hindi na destroy, you win the case.

What is a presumption?

It is an assumption drawn from a given set of facts

which the law requires you to draw.

What is an assumption?

It is conclusion, an inference.

So a presumption is an assumption which the law requires

you to draw from a given set of facts. you are referring to

legal presumptions

legal presumptions:

• Conclusive - it cannot be rebutted

• disputable

Most of these disputable presumptions, you have already

encountered,

There is presumption of innocence which is constitutionally

enshrined,

Presumption the one in possession of a recently stolen article

is a presumed to be the author of the theft,

There is a presumption of the legitimacy of a child,

there is a presumption in favor of matrimony, that is,

whenever a man and a woman deporting themselves as

husband and wife has entered into a lawful contract of

marriage these are of course disputable,

If however, you are able to make use of these disputable

presumptions in your case. it creates a prima facie case in

your favour. if you are able to make these legal presumptions

(because you are required by law to draw these

presumptions) if you shall have created a prima facie case in

your favour, if it is not disputed, you win the case.

Doctrine of Conflicting presumptions - the stronger

presumption overcomes or prevails over the weaker

presumption.

Example: in a prosecution for adultery, a married woman had

sexual intercourse with a man not her husband, pwede bang

gumamit ng legal presumption dito? If you are the

prosecutor, the presumption here that is applied that is when

a man and a woman deporting (behaving) themselves as

husband and wife, the presumption is that they have entered

into a lawful contract of marriage.

so if that particular presumption would render them guilty of

adultery kasi they present themselves, they do think, they do

things that are being normally done by husband and wives,

the presumption is mag asawa talaga sila. Now, they are

being prosecuted for adultery, if this disputable presumption

is availed of and will render them guilty of adultery then this

disputable presumption would have to yield to a stronger

presumption of innocence. Why is it stronger?

Because firstly, It is disputable.

This presumption of innocence is constitutionally

enshrined. This disputable presumption is the

weaker presumption which should yield to a

stronger presumption which is the presumption of

innocence.

You need to have a working knowledge of these

presumptions. But for purposes of the bar you need to

memorize,

In the presentation of evidence:

• direct examination

• cross examination,

• re-direct,

• re-cross examination,

What is the order of examination?

It is the sequence of propounding questions to the

witnesses,


23 | P a g e

What is the order?

1. Direct examination

2. cross examination

3. re-direct examination

4. re-cross examination

Direct and re-direct examination are conducted by the

proponent, the counsel presenting the witness

cross and re-cross examination are conducted by the adverse

counsel.

Under the rules, if direct and re-direct are conducted by the

counsel presenting the witness, you are not allowed to

propound leading questions to the witness.

A leading question suggests to the witness the answer which

the examining party desires. Usually, it is answerable by a yes

or no.

Example: “Did you go to the Police station after the incident

to report?”

“Yes”, answerable by a yes or no, that is a leading

question

if that is propounded during the course of the direct

or re-direct examination which are conducted by the

proponent or the counsel presenting the witness

that is objectionable.

A leading question, however, is allowed on cross

examination. A leading question suggests to the witness the

answer which the examining party desires it is not allowed

during direct and re-direct examination because it is

conducted by the proponent but it is allowed in cross and re-

cross because the purpose is to diminish, to destroy the

credibility of the witness so you are allowed to lead the

witness.

if you are the adverse the counsel, usually, the reaction of

this witness who is supposed to be cross-examined by you is

negative. He knows that you belong to the opposite party

usually the witness will clam up, hindi talaga magkakaroon ng

limot yan, amnesia, “I do not know, I cannot remember.”

Therefore, how can you test?, pag objectan ng objectan if you

propound leading questions, how can you test the credibility?

So leading questions are allowed on cross and re-cross

examination because these examinations are conducted by

the adverse counsel.

However, in any stage of the proceeding (direct, cross, re-

direct, or re-cross), on any occasion a misleading question is

not allowed. A misleading question assumes as true a fact

which is not testified to by the witness or contrary to that

which has been testified to by the witness as defined.

The rule is, you are not allowed to propound leading

questions however, as an exceptions on cross examination

pwede mag propound ng leading questions, on preliminary

matters, an unwilling or hostile witness or a witness who is

the adverse party or officer of a corporation etc.

Sec 12 of Rule 132 A party may not impeach his own witness

Section 12. Party may not impeach his own witness. — Except with respect to

witnesses referred to in paragraphs (d) and (e) of Section 10, the party

producing a witness is not allowed to impeach his credibility.

A witness may be considered as unwilling or hostile only if so declared by the

court upon adequate showing of his adverse interest, unjustified reluctance

to testify, or his having misled the party into calling him to the witness stand.

The unwilling or hostile witness so declared, or the witness who is an adverse

party, may be impeached by the party presenting him in all respects as if he

had been called by the adverse party, except by evidence of his bad

character. He may also be impeached and cross-examined by the adverse

party, but such cross-examination must only be on the subject matter of his

examination-in-chief.

When you say impeach you destroy the credibility.

Very logical, you call this person on the witness stand to be

presented as your witness only to be impeached by you

Napaka ingrato mo naman, witness mo yan eh.

So you are not allowed to impeach your own witness but

exceptions par. (d) an unwilling or hostile witness or (e) a

witness who is the adverse party,

Why you are allowed to impeach?

because essentially you belong to different camps,

Why is this an exception to the rule? Take note if you are

calling somebody to be your hostile witness, he is your

witness because you are the one who called him to the

witness stand, but once he is on the witness stand and he is

allowed to testify as a hostile witness, that is, you can now

cross examine him. You can now impeach him kasi basically,

essentially magkalaban kayo, that is why it is an exception. He

is your witness only because,

The rule is you cannot impeach your own witness. “I am

calling to the witness stand Mr. X, I am offering the testimony

of this witness etc.” But, if you are calling somebody who is

adverse to your interest, witness mo because you are the one

calling him but only up to that point, but after that you can

already impeach him,

But, under the rules, if you called somebody to the witness

stand and he is allowed to testify as a hostile witness, so you


24 | P a g e

don’t just simply say I am calling Mr. X to the witness stand,

and I am presenting him as my hostile witness. that’s it? you

can already propound leading questions? that’s it you can

already impeach him?

No, you first have to prove to the court the

antagonism and adverse interest between the two of

you. If you are not able to convince the court that he

is hostile to your call, then you will not be allowed to

impeach him because basically, he is your witness.

Therefore, if you are given by the court an

opportunity to establish the antagonism or the

adverse interest to this witness and then you have

to wait for the court to declare that this witness is

your hostile witness before you can profound

leading questions before you can impeach the

witness

Section 13. How witness impeached by evidence of inconsistent statements.

— Before a witness can be impeached by evidence that he has made at other

times statements inconsistent with his present testimony, the statements

must be related to him, with the circumstances of the times and places and

the persons present, and he must be asked whether he made such

statements, and if so, allowed to explain them. If the statements be in

writing they must be shown to the witness before any question is put to him

concerning them.

Sec 13 is very important because this is what you call laying

the predicate, a witness is impeached by evidence of prior

inconsistent statements.

Laying the predicate meaning, you are laying the basis to

impeach that witness

example: the witness is on the witness stand and said “I saw, I

witnessed the incident.” But you are aware that on one

occasion that when he appeared in the prosecution’s office in

connection with the preliminary investigation of this case but

he denied having witnessed the incident, that was

inconsistent and that is contained in his affidavit which is

sworn when submitted during the preliminary investigation. if

you able to show it:

you say “Mr. Witness you said you were able to see

it, witness the incident which is the subject matter of

the case. Do you remember having appeared before

the Prosecutor’s Office in connection with the

Preliminary Investigation of this case”

the witness replied “yes.”

You as adverse counsel asked “Do you remember

having executed an affidavit in connection with this

case?”

the witness replied “yes.”

Then u as the adverse counsel asked “If shown to

you would you be able to identify it?”

the witness replied “Yes.”

(So you are now laying the predicate,)

“calling your attention Mr witness to par, 2 or 3 or 4 of your

affidavit, for the record your Honor, the witness has stated in

this sworn affidavit that he did not witness the incident. Your

Honor, I am making a Manifestation that this witness has on

another occasion executed a sworn affidavit which he now

affirms stating a contrary statement that he did not”.

In that situation, d ba na impeach mo na making inconsistent

statement stated that he did not see/ witnessed the incident

but there is a requirement which is supported by recent

jurisprudence, you have to give this witness the opportunity

to explain the inconsistency. It is only after the witness has

failed to give a satisfactory explanation for that inconsistency

when you shall be considered to have impeached him.

The rule is and under jurisprudence, you shall not be

considered to have impeached the witness unless and until

you have given him an opportunity to explain the

inconsistency and if he failed to give a satisfactory

explanation, only then you can be considered to have

impeached that witness.

Section 16. When witness may refer to memorandum. — A witness may be

allowed to refresh his memory respecting a fact, by anything written or

recorded by himself or under his direction at the time when the fact

occurred, or immediately thereafter, or at any other time when the fact was

fresh in his memory and knew that the same was correctly written or

recorded; but in such case the writing or record must be produced and may

be inspected by the adverse party, who may, if he chooses, cross examine

the witness upon it, and may read it in evidence. So, also, a witness may

testify from such writing or record, though he retain no recollection of the

particular facts, if he is able to swear that the writing or record correctly

stated the transaction when made; but such evidence must be received with

caution.

Witness may refer to a Memorandum. A memorandum

referred to here are notes, for example in police assistance

the police man goes to the crime scene conducts ocular

inspection, takes down notes yun yung notes, interviews

witnesses takes down notes, yun yung notes na sinasabi dito.

2 years after taking down notes about the interview or ocular

inspection, when he is called to the witness stand, can you

expect him to remember? to be accurate in what he is telling

the court? he needs to refresh his memory.

The witness will say “may I refer to my notes your Honor” ok

you refer to your notes,” according to my notes your Honor

on this day Etc etc” that is only for the purpose of refreshing

his memory. Are those notes admissible as evidence? is there


25 | P a g e

any probative value or weight that can be given to those

notes?

No, walang probative value yan. It will be and it

cannot be offered in evidence because it will be

denied admission, what is admissible is not the

notes, it is the testimony of the witness after his

memory has been refreshed by reference to those

notes. It is not the notes themselves because it is self

serving. It has not been authenticated after such a

long time. It is questionable. it is the testimony of

the witness after his testimony has been refreshed

by reference to those notes that is admissible not

the notes themselves.

Section 34. Offer of evidence. — The court shall consider no evidence which

has not been formally offered. The purpose for which the evidence is offered

must be specified.

Section 35. When to make offer. — As regards the testimony of a witness,

the offer must be made at the time the witness is called to testify.

Documentary and object evidence shall be offered after the presentation of a

party's testimonial evidence. Such offer shall be done orally unless allowed

by the court to be done in writing.

Section 36. Objection. — Objection to evidence offered orally must be made

immediately after the offer is made.

Objection to a question propounded in the course of the oral examination of

a witness shall be made as soon as the grounds therefor shall become

reasonably apparent.

An offer of evidence in writing shall be objected to within three (3) days after

notice of the unless a different period is allowed by the court.

In any case, the grounds for the objections must be specified.

Section 37. When repetition of objection unnecessary. — When it becomes

reasonably apparent in the course of the examination of a witness that the

question being propounded are of the same class as those to which objection

has been made, whether such objection was sustained or overruled, it shall

not be necessary to repeat the objection, it being sufficient for the adverse

party to record his continuing objection to such class of questions.

Section 38. Ruling. — The ruling of the court must be given immediately after

the objection is made, unless the court desires to take a reasonable time to

inform itself on the question presented; but the ruling shall always be made

during the trial and at such time as will give the party against whom it is

made an opportunity to meet the situation presented by the ruling.

The reason for sustaining or overruling an objection need not be stated.

However, if the objection is based on two or more grounds, a ruling

sustaining the objection on one or some of them must specify the ground or

grounds relied upon. (38a)

Section 39. Striking out answer. — Should a witness answer the question

before the adverse party had the opportunity to voice fully its objection to

the same, and such objection is found to be meritorious, the court shall

sustain the objection and order the answer given to be stricken off the

record.

On proper motion, the court may also order the striking out of answers

which are incompetent, irrelevant, or otherwise improper.

Section 40. Tender of excluded evidence. — If documents or things offered in

evidence are excluded by the court, the offeror may have the same attached

to or made part of the record. If the evidence excluded is oral, the offeror

may state for the record the name and other personal circumstances of the

witness and the substance of the proposed testimony.

Sec. 34 speaks of offer of evidence.

Remember offer of evidence is different from offer of proof.

offer of evidence is when you offer testimonial, object and

documentary evidence.

When do you offer testimonial evidence?

at the time the witness is called to the witness stand.

at the time the witness is called for examination. “I

am calling to the witness stand your Honor and I am

offering the testimony of this witness for the

following purpose”

For every offer, you have to state the purpose of the offer. So

when is testimonial evidence offered?

At the time the witness is called to the witness

stand.

On the other hand, when do u offer object and documentary

evidence?

After all testimonial evidence have been completed

“I have called __________ the witnesses your Honor

and I am now ready to rest that case and I offer the

following series.” That is offer of object and/or

documentary evidence

Whether it is object evidence, documentary evidence or

testimonial evidence you have to state the purpose of the

offer.

pag offer tatanungin yung kabila, objection? If the offer is

made orally, then the objection would have to be made orally

oral offer is encouraged.

For as long as the pieces of evidence are not voluminous, the

records are not voluminous, you can make an oral offer of

evidence. The other party will have to make an objection,

then the court will have to rule. pag nag rule ang court, the

court simply says, “exhibit A is admitted, exhibit B is denied

admission,” the court does not even have to give a reason.

“admitted or denied”

Remember, any piece of evidence that is denied admission

whether it is testimonial, object or documentary, shall not

form part of the records of the case.


26 | P a g e

If your evidence has been denied admission, therefore, it will

not form part of the records, but you believe that piece of

evidence is vital to your cause, you have the last remedy is

offer of proof, it is found in Sec. 40

Offer of proof is tender of excluded evidence. Ano yung

excluded d ba yung na denied admission. When do you make

an offer of proof?

After the court has already ruled on the offer of

evidence. This is the last opportunity for you to put

into record any evidence that has been actually

denied admission.

General Rule: any piece evidence which has not been

formally offered shall not be considered by the court.

Exception: if that piece of evidence has been duly identified

by testimony, duly recorded and forming part of the records

of the case, even if that piece of evidence has not been

formally offered, it will be considered

Objections

Rule: For every objection that you raise, you have to

state the legal basis

Different kinds of objections:

• General and specific

• Formal and substantive

General - you just state the ground

ex. Immaterial, incompetent

Specific - you actually state the specific ground

ex. Objection that calls for an opinion , objection

that is hearsay, he is testifying on a matter which he

does not have personal knowledge

formal - objection based on the defect in the form of the

question

ex. Objection question is leading, question is

misleading, question is kilometric, compound in the

form of question, defect

substantive - based on the inadmissibility of the evidence

ex. Witness is being confronted with a mere

photocopy of a particular document but the

question your Honor pertains to the contents of the

document ground: violation of the Best Evidence

Rule, Calling for an opinion, the question calls for an

opinion your Honor he is not qualified as an expert

witness.

Weight and sufficiency of evidence

• Criminal cases proof beyond reasonable doubt

• civil cases preponderance of evidence,

• administrative cases substantial evidence.

Preponderance of evidence is evidence of greater convincing

force. It does not refer to numerical superiority of evidence. It

does not mean that if you have a truck load of evidence as

against one or two pieces of evidence against the other party,

it does not mean you win the case. It is how convincing your

evidence is.

In proof beyond reasonable doubt, what is important is

moral certainty. It does not require absolute certainty.

What is moral certainty?

Moral certainty is a persistent judgment in the mind

of the court. paulit ulit in the mind of the court, that

the person is guilty as charged, evaluate, still, it

comes again and again persistent judgment in the

mind of the court that the person is guilty as

charged.

Substantial evidence in administrative cases is that amount

of evidence that which a reasonable mind might accept as

adequate to justify a conclusion

Section 3. Extrajudicial confession, not sufficient ground for conviction. — An

extrajudicial confession made by an accused, shall not be sufficient ground

for conviction, unless corroborated by evidence of corpus delicti.

Corpus delicti is literally body of the crime, but in law and in

jurisprudence specifically the law on evidence, corpus delicti

means the fact of the commission of the crime.

If a person executes an extrajudicial confession, under the

rules, even if his extrajudicial confession is constitutionally

compliant, meaning it was voluntarily made, it was made with

the assistance of a lawyer of his own choice, it was

constitutionally compliant he is owning it up to the killing

somebody, for as long as the facts of the case to which he is

owning up to has not been established, he cannot be

convicted based on his extrajudicial confession. The

confession will not be sufficient for conviction unless

corroborated by the facts of the commission of the crime.

Circumstantial evidence

Memorize the elements for circumstantial evidence to suffice

for conviction.

Difference of direct from circumstantial evidence.

Example of direct evidence: Eye witness account, “I saw him

do it. I saw him kill the victim, I saw him take the jewelry.”


27 | P a g e

In circumstantial you have to draw an inference of guilt. That

is why it is important for you to memorize the elements to

suffice for conviction

a) There must be more than one circumstance

b) the facts from which the inferences are derived are

proven

c) The combination of all the circumstances is such as

to produce a conviction beyond reasonable doubt.

One witness says “on the date and time of the incident I saw

the accused running away from the scene of the crime” that

is one circumstance, can you draw an inference of guilt?

No. Not yet

Another witness says “on the date and time of the crime, I

saw the accused running away from the scene of the crime

carrying a bloodied bolo” that is another circumstance. A

third witness says, “on the date and time of the incident, i

saw the accused running away from the scene of the crime,

carrying a bloodied bolo and blood splattered all over his

Bench t-shirt”

These are circumstantial evidence from which you can draw

an inference of guilt but it will not yet suffice for conviction,

you first have to prove the basis, the circumstances.

You cannot draw an inference of guilt from mere allegations.

For purposes of circumstantial evidence to suffice for

conviction, you cannot draw an inference of guilt from mere

allegation. You cannot draw an inference of guilt from

another inference that is doubled opinion.

For circumstantial evidence to suffice for conviction, you can

only draw an inference of guilt from facts which are already

proven. ang dali kasi mag-allege. Remember, you are talking

about conviction, there will be eventual deprivation of liberty.

You have to be very careful.

These facts or these circumstances from which you draw an

inference of guilt must first be proven.

This Perpetuation of testimony is deposition before action or

pending appeal which is found in Rule 24 of the rules in civil

procedure. Concept of perpetuation is preservation of known

testimony from loss or destruction.

Documents (SEC.19-33)

Authentication of documents - you prove its genuineness

and due execution.

Rule: you need not to authenticate a public document. As in

fact, a public document is prima facie evidence of the facts

stated therein because it has an official character.

So what you need to prove, what you need to authenticate,

for purposes of admissibility in evidence is a private

document.

General rule: you have to authenticate a private document

Exception: if that private document is:

• more than 30 years old

• It does bear traces of changes or alteration

• It is found in the custody of one in whom naturally

would be found if genuine or it is an ancient

document,

You need not authenticate, you need not prove the

genuineness and due execution.

Concept of Continuing Objection under Sec. 37 of Rule 132 -

when questions propounded are of the same class to which

objections have been raised and ruled upon, there is no need

to raise an objection every time that question is propounded.

You simply say I am registering my continuing objection to

this type of question.

Where the question are of the same class to which objection

has been raised already and ruled upon, you register your

continuing objection to that line of questioning.


28 | P a g e

SPECIAL CIVIL ACTIONS

There are special civil actions that are initiated by means of a

complaint and there are special civil actions that are initiated

by a Petition.

Special Civil actions that are initiated by means of a

Complaint:

• Partition

• Foreclosure of Mortgage,

• Interpleader,

• Expropriation,

• Forcible entry,

• Unlawful Detainer

By petition

• Certiorari

• Prohibition

• Mandamus

• Declaratory Relief

• Contempt

If a special civil action is initiated by means of a complaint,

the responsive pleading is an answer.

If the special civil action is initiated by means of a Petition,

the responsive pleading is a Comment or Opposition

These are called special civil actions because they cover

special circumstances apart from the ordinary civil cases

which are covered by the ordinary rules of procedure.

In Special Civil Actions since they cover special circumstances

they usually provide for their own rules of procedure. If the

special civil action does not provide for its own rules of

procedure, the ordinary rules of procedure will apply in a

suppletory character.

Interpleader

Interpleader is initiated by means of a complaint.

When can u interpose a complaint for interpleader?

If a person has in his possession or custody a

property or anything of value over which he has no

interest but there are several claimants to that

property.

The one who files the complaint is the plaintiff. In an

interpleader action, the plaintiff is the one who is in

possession or custody of the property or anything of value

over which he has no interest but there are several claimants

to that property. Hindi nya alam kung kanino ibibigay, so he

goes to court to file an action for Interpleader to compel the

adverse claimants to that property to interplead with one

another.

To interplead means to prove their respective claims to that

property.

Since it is initiated by a Complaint, you file an Answer,

summons will be served,

Is a Motion to Dismiss available?

Yes, Sec. 4 Motion to Dismiss on any of the grounds

provided in rule 16 of the rules of civil procedure but

most importantly even on the ground of

Impropriety.

Impropriety – for example: there is only one claimant to the

property. In Interpleader, there are several claimants to one

and the same property. If there is only one claimant as

against the person in possession of the property, the person

in possession, if it is a personal property, can file an action for

replevin.

If there is only one claimant as against the person in

possession of the property, then just simply file an action for

replevin, if it is a personal property. If there is only one

claimant to that property, you cannot institute an

interpleader action. So if there is only one claimant and there

is an interpleader action,that is improper. The remedy is to

move to dismiss on the ground of impropriety or on any of

the grounds under Rule 16 of the Revised Rules on Civil

Procedure.

In the Answer to be filed by the defendant, the defendant

here is the adverse claimant. When you file an action for

Interpleader the first order to be issued is directing the

different claimants to interplead with one another and prove

their respective claims to the property.

What if in the course of the proceedings for an Interpleader

action, the adverse claimants have withdrawn their interests

(iniwan na lang isa). Let’s say in an action X Y Z isa na lang ang

natira, the two withdrew their claims to the property, the

Interpleader action will be mooted because there are no

more adverse claimants there is only 1. What will happen to

the interpleader action?

It is dismissible on the ground that it has become

moot and academic but not at once. Under SC

jurisprudence, before the court dismisses the action,

the court will set it for hearing for the purposes of

allowing the plaintiff in that interpleader action to

prove damages because the plaintiff was forced to

file an action because he does not know, there are

several claimants to that property so he was forced

to file an action, he sustained and incurred damages


29 | P a g e

by way of filing fees, docket fees, hiring a lawyer so

according to the SC you first have to give the plaintiff

an opportunity to prove damages. If hindi sya nag

claim ng damages, dismiss the case. But for as long

as the plaintiff claims damages he has to be given an

opportunity to prove the damages he may have

sustained by reason of the filing of the Interpleader

action.

Declaratory Relief

In declaratory relief, you want a declaration of your rights. It

is initiated by means of a petition. The responsive pleading is

a comment or opposition.

The petitioner is aware that he has rights under a deed, an

instrument, an executive order or an ordinance but he does

not know what are those rights. That is why he is filing a

petition for declaratory relief for the court to declare what

are his rights under this particular instrument, that is the

purpose.

Interpretation is construction, the Petitioner says “I know I

have rights under this instrument. But I want a declaration of

what my rights are.”

That is why you need to file a Petition for Declaratory Relief

before any breach or violation of that instrument. If that

particular law, instrument, executive order, or ordinance is

violated, there is now a violation of your right. If there is now

a violation of your right you now have a cause of action.

therefore you cannot institute a declaratory relief, you now

file an ordinary civil action because you now have a cause of

action.

So a declaratory relief must be instituted before any breach

or violation of the instrument.

If you have already filed a declaratory relief and in the course

of the proceeding, the instrument is violated, madi-dismiss

ang petition for declaratory relief, it will be converted into an

ordinary civil action because you now have a cause of action.

Cause of action is an act or omission in violation of the rights

of another. In a petition for declaratory relief, you cannot ask

for any affirmative relief claiming for damages, kasi wala pang

violation, wala pang cause of action. You cannot file a 3rd

party complaint because no material relief is prayed in an

action for declaratory relief kasi walang cause of action.

Certiorari, Prohibition and Mandamus

There are 3 special Civil Actions under Rule 65. Certiorari,

Prohibition and Mandamus pinagsama lang sila because they

have a common denominator.

All of them Certiorari, Prohibition, Mandamus are initiated by

means of a petition.

Common ground there has been grave abuse of discretion

amounting to, lack of or in excess of jurisdiction.

For purposes of certiorari, prohibition and mandamus, you

institute it if there is no appeal nor any other speedy, plain

and adequate remedy in the ordinary course of law. If there is

no appeal it means that the order, judgment or resolution is

basically non-appealable not when the period for appeal had

already lapsed because certiorari, particularly, is no

substitute for a lost appeal.

Pag sinabi mong there is no appeal, it means the order,

judgment or resolution is basically non-appealable that is why

for purposes of Certiorari, Prohibition and mandamus

memorize Rule 41 Sec. 1 because it enumerates the

resolutions, judgments or orders that are non appealable.

if it is non-appealable your remedy is certiorari, prohibition or

mandamus depending on your purpose.

Certiorari - If it is discretionary act, you want to question the

discretionary act.

if you want to compel the performance of an act it is

mandamus.

You want to prevent the performance of an act it is

prohibition.

Since Mandamus, certiorari and prohibition are initiated by a

petition the responsive pleading to be filed is a comment

which has to be filed within a period of 10 days.

Once you file a petition for certiorari, let’s say there is an

order from the MTC, during the pendency of the proceedings

you go up to the RTC to question the propriety of the order

via a petition for certiorari, not by an appeal because the case

is still pending. Under present jurisprudence, can you invoke

the pendency of a petition for certiorari to stop or cause the

suspension of the proceedings in the court of origin?

No, The mere filing it will not stop for as long as you

do not secure a TRO or an injunction. it has no

effect. Tuloy tuloy pa rin ang proceedings before

that court. So the mere filing. You cannot anymore

invoke judicial courtesy. tapos yung doctrine na yun

sa eternal gardens case. “Your Honor the RTC has


30 | P a g e

already taken cognizance of our petition for

certiorari out of Judicial courtesy to the RTC

sasabihin mo sa MTc Judge may we move for the

suspension of the proceedings” that is not allowed,

for as long as there is no TRO or any injuctive relief

from the RTC where you filed the certiorari, the

proceedings before the MTC will have to continue.

Once a comment has been filed within a period of ten days,

the court may set the case for hearing or require the parties

to submit memoranda. wala yang pre trial conference like in

ordinary civil actions. once a comment is filed it is either you

set the petition for hearing for oral arguments or require the

filing of a memorandum. The court, however may dismiss the

petition if it finds the same to be patently without merit,

ngayon if the court finds that the petition for certiorari is

patently for delay, the party as well as the counsel shall be

fined triple not double the cost. There is no place for a

preliminary conference in a petition for certiorari.

Rule 64, the rule here adopts the procedure in Rule 65 kasi if

you notice yung Rule 65 yun ang basic. Review of the

resolutions, final orders of the COA and the COMELEC. These

are Constitutional bodies, you file your Petition for review to

the Supreme Court under Rule 64, but adopting the

procedure under Rule 65 which means that it is not actually a

Petition for Review that you file, it is a Petition for certiorari

adopting the procedure.

Sa petition for certiorari, mandamus, and prohibition under

Rule 65 you file it within a period of 60 days from notice of

the questioned resolution or judgment.

Itong review under Rule 64 while adopting the procedure

under Rule 65 nevertheless, the time frame for filing is 30

days from notice of the resolution or order of the COA and

COMELEC. The filing will not stop the execution unless the

Supreme Court orders otherwise.

Expropriation

Dati dati ang term jan is eminent domain now the term is

expropriation rightly so because it is a remedial law concept

eminent domain is a political law concept. It is the exercise of

the state’s power of eminent domain, to take away private

property for public purpose upon the payment of just

compensation.

For the purpose of the exercise this power of eminent

domain, the plaintiff, government or government

instrumentality, would have to file a complaint. Since, it is a

complaint the responsive pleading is an answer. As far as

expropriation is concerned no motion to dismiss is allowed.

The defendant is the owner of the private property which is

sought to be expropriated. If the defendant-owner of the

property sought to be expropriated has no objection to the

expropriation of his property, then he simply files a

Manifestation of no objection.

However, if he has any objection to the expropriation of his

property he has to an Answer not a Motion to Dismiss. In the

answer, he will set forth his objections.

Once the court issued an Order of Expropriation, it forecloses

or prevent any further objection to the expropriation of the

property.

Can the defendant who has no objection or does not file any

answer to the complaint for expropriation, can this defendant

owner of the property sought to be expropriated in an

expropriation proceeding be declared in default?

No, there is no declaration of default in

expropriation proceedings because the essence of

default you lose your standing you cannot anymore

present evidence. In expropriation, even if you don’t

file an answer, there is an Order of Expropriation

foreclosing any objection but you are not prevented

from participating in the proceedings for the

purpose of determination of just compensation.

Once a government agency or instrumentality or the

government files a complaint for expropriation, they can ask

for a writ of possession provided they deposit the Assessed

value of the property with the government depositary

There is a difference, however, under RA 8974. RA 8974

covers expropriation of private property for national

government infrastructure projects. What is to be paid is not

only the assessed value, babayaran mo yung owner 100% of

the Market Value of the property based on the BIR Current

Relevant Zonal Valuation but only if this particular property

shall be used for National government infrastructure projects,

other than that you go Rule 67.

Remember the case of PIATCO? sabi ng SC jan because he

ordered the government expropriating to pay the assessed

value for you to enter the property yung NAIA sabi ng

Supreme Court, No, there is a special law for that purpose

because this is a case the government expropriating its own

property. kasi ang expropriate nila yung airport mismo that is

built on that property, hindi yung land kasi the land belongs

to the government. So it is an infrastructure project therefore

it is not Rule 67 that should govern in which case the

government is ordered to pay 100% of the Market Value

based on the BIR Zonal Valuation to the owner.

Sec. 11 of Rule 67, the right of the plaintiff to enter upon the

property of the defendant and appropriate the same for

public use or purpose shall not be delayed by an appeal from


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the judgment. kasi ang requirement lang jan, lalo na pag na

affirm na yung expropriation, it shall not be delayed by an

appeal. But if the appellate court determines that plaintiff has

no right of expropriation, judgment shall be rendered

ordering the Regional Trial Court to forthwith enforce the

restoration of the property to the former registered owner on

appeal but it will not stop the execution.

Rule 70 Forcible entry and Unlawful Detainer

In Forcible Entry and Unlawful Detainer actions only the MTC

has original exclusive jurisdiction.

If it is the recovery of possession of real property, kasi if the

action is for the recovery of personal property the action is

replevin.

forcible entry and unlawful detainer, the actions are for the

recovery of physical possession.

Accion Publiciana, it is to recover possession but the action is

instituted beyond 1 year from date of demand, he has to

make a demand particularly in an unlawful detainer case

If it is to recover both title and possession then Accion

Reinvindicatoria. But if it is Reinvindicatoria, even if it is to

recover title and possession, the MTC has under present laws

and jurisprudence has jurisdiction, if it is Reinvindicatoria

depending on the assessed value of the property. If the

assessed value of the property does not exceed P20,000 in

the provinces or the assessed value of the property does not

exceed P50,000 in the Metropolitan area and if it is an action

to recover both title and possession then it will fall under the

jurisdiction of the MTC.

pero pag original exclusive jurisdiction of the MTC in forcible

entry and unlawful detainer.

If it’s forcible entry, the occupant of the property is ousted.

So possession by the defendant here is unlawful from the

beginning because the owner or occupant is deprived of

possession through FISTS (force, intimidation, strategy,

threat, stealth) That is why for purposes, jurisdictional

requirement for forcible entry is physical possession. how can

you say that he is deprived of physical possession by force

strategy, by stealth if he is not there.

He is ousted through force intimidation, strategy, threat

stealth, so the defendant’s possession is unlawful from the

very beginning.

In unlawful detainer, the occupation of the property is lawful

in the beginning which means that he is allowed to occupy by

virtue of a lease contract, an express contract or he is allowed

to occupy the property by tolerance. “ok you may occupy the

property now but once I need it you have to leave otherwise

I’ll file an action for ejectment against you.” Yun ang unlawful

detainer.

It is lawful in the beginning he is allowed to occupy.

When does it become unlawful for the owner of the property

to institute an action for unlawful detainer?

Once there is already a demand for the occupant to

vacate the property because once there is a demand

to vacate the property, it would signal the

termination of the authority of the occupant to

continue with his occupation of the property. If

despite demand for him to vacate, na terminate na

yung authority to continue and he continued,

unlawful na yung kanyang continued occupation

because tinerminate na ng owner. By the fact that

there is a demand made upon you to vacate the

property, then his possession becomes unlawful and

therefore becomes rightful for an unlawful detainer

acting.

Therefore, the letter of demand is jurisdictional as far as the

unlawful detainer action is concerned. kasi nga lawful yung

occupation nya in the beginning but yung forcible entry

unlawful from the very beginning. itong unlawful detainer

lawful sya in the beginning, it becomes unlawful only if

despite demand which signals the termination of the

authority to occupy the property , andun ka na pa rin, illegal

na yung possession mo, therefore unlawful detainer

Therefore, jurisdictional requirement for purposes of

unlawful detainer is the letter of demand. The demand for

purposes of unlawful detainer is a demand to vacate and if he

owes rentals, to pay rental in arrears because if your demand

letter is simply for the defendant to pay the rental in arrears,

then that is only an ordinary civil action lang yan for

collection of some of money.

For purposes of unlawful detainer there is a demand to

vacate and despite demand refuses to vacate that is the basis

for unlawful detainer.

Lavivo v CA?- The parties entered into a contract to sell,

amortizations yan. It is so stipulated in the contract that the

would-be purchaser of the property may occupy the property

but he has to continue paying the amortizations, but after

paying the down payment he was allowed to occupy the

property so he was allowed to occupy. So his occupation was

lawful in the beginning. He failed to pay his monthly

amortizations in the property. A demand was made to vacate

and pay the monthly amortizations. MTC sustained, RTC also

sustained. RTC affirmed by the CA, Pag dating sa Supreme

Court they have a totally different view. Take note, at the


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time the plaintiff made a demand for the defendant to

vacate, the contract which allowed the defendant in the first

place to occupy the property is still existing. It was still

existing, kaya nung hiniling na to vacate because he did not

pay. The issue is to vacate and pay the amortization which

you have failed to pay on its face naman pwede.

The Supreme court said, by virtue of what authority is the

defendant able to occupy?

by virtue of the contract to sell and at the time of

the demand for him to vacate the property because

of non-payment of amortization and at the time he

failed to vacate, existing pa yung contract to sell. So

you don’t do it by filing an unlawful detainer action.

You first have to rescind. File ka muna ng action to

rescind the contract to sell. once the contract to sell

which in effect was the one who gave the authority

to stay in the premises, once it is rescinded, you now

make a demand for him to vacate the premises wala

ka na authority it is only then when he refuses to

vacate will you file an unlawful detainer case

Judgment rendered in a forcible entry and unlawful detainer

is immediately executory but it can be stayed under Rule 42

Sec. 8

Unlawful detainer action is covered by the rule on summary

procedure immediately executory.

The fact that the rule on summary procedure is already

incorporated on Rule 70 governing forcible entry and

unlawful detainer action does not mean that the rule on

summary procedure exclusively applies to forcible entry and

unlawful detainer because the rule on summary procedure

also applies for collection of sum of money for a total of

P200,000. Yung P400,000 jurisdiction yun. This one is the

applicability of the rule on summary procedure based on a

Supreme Court Circular November 2002

In a case covered by summary procedure the judgment is

immediately executory but it can be stayed.

How do we stay?

you perfect an appeal, post a supersedeas bond and

pay your rental deposit as may be adjudged in the

judgment.

Now if the MTC is affirmed by the RTC, the judgment of the

RTC is immediately executory. So you go up to the CA via a

Petition for Review under Rule 42. Can the judgment of the

RTC affirming the MTC which is appealed to the CA via a

Petition for Review be stayed in its execution by the fact of

filing of petition for review to the CA?

No, it is immediately executory. sabi sa rule, it is

immediately executory without prejudice to further

appeal.

Contempt

It is direct, if the contumacious behavior is committed in the

presence of or so near a judge because it is an insult to the

authority or position occupied by the judge. But the Supreme

Court said that judges should not be onion skinned. it is only

when it is too blatant ang pambabastos then you can cite him

for direct contempt.

In direct contempt, no need for notice and hearing

binabastos ka na harap harapan bibigyan mo pa sya ng notice

ise set mo pa for hearing.

It Is in Indirect contempt where there is a need in fact under

the present rules for purposes of indirect contempt you do

not simply file a motion, you file a separate petition. You have

to pay the filing fees.

Indirect contempt, there is simply a violation of the orders or

violation of the rules etc. It is indirect contempt because it

was not committed in the presence of or so near a judge it

has to be set for hearing to give him an opportunity to

explain. As in fact, even before iset for hearing pagka file pa

lang ng petition bibigyan sya ng show cause order, the Judge

on its own bibigyan sya ng show cause order. to show cause

within a period of 5 days why he should not be cited for

contempt for delaying for repeated failure to appear despite

notice of the pending proceedings thus delaying the

proceedings of the case, delaying the speedy disposition of

this case. The judge, on its own instance, can issue a show

cause order, can even initiate an action for indirect contempt.

Contempt, whether direct or indirect, contempt under the

rules of court is in the nature of a criminal action. Since it is in

the nature of a criminal action and there is no answer nor

oppositions filed in a petition for contempt, the person

cannot be declared in default. There is no default in criminal

action. Under the rules Sec. 4 Proceedings for indirect

contempt may be initiated motu propio by the judge by the

issuance of a show cause order or a separate petition.

If the contempt was committed against one judge, there is a

refusal to comply with the order of a particular judge for

refusal to comply with the order of this Judge in one


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particular case. the petition for indirect contempt should be

filed separately. Where should the petition for contempt go?

Can it be litigated separately?

most often than not, the petition for indirect

contempt is consolidated with the original case

because the better person who will determine

whether or not the action committed is

contumacious is the judge against whom the

contumacious behavior was committed.

so most often than not, for procedural convenience,

it is separately filed and docket fees are paid but it

will be consolidated with the original case where the

alleged order which was violated or refused to be

complied with was committed. So it is with the

particular court, particular Judge against whom the

contumacious behavior was committed.

The remedy against an order of direct contempt is Certiorari,

not appeal, on the ground of grave abuse of discretion

amounting to lack of or in excess of jurisdiction

If it is indirect contempt, it is appealable because there was a

hearing.

Sec. 11, the judgment or final order of a court in Indirect

contempt is appealable but execution of the judgment or

final order shall not be suspended until the bond is filed by

the person adjudged in contempt