WHAT IS CUSTODIAL INVESTIGATION?

Custodial investigation refers to any questioning initiated by law enforcement officers after a person has been taken into custody
or otherwise deprived of his freedom of action in any significant way.
WHAT DOES CUSTODIAL INVESTIGATION PRESUPPOSE?
This presupposes that he is suspected of having committed a crime and that the investigator is trying to elicit information or a
confession from him.
WHEN DOES THE RULE ON CUSTODIAL INVESTIGATION BEGIN TO APPLY?
The rule begins to operate at once, as soon as the investigation ceases to be a general inquiry into an unsolved crime, and
direction is aimed upon a particular suspect who has been taken into custody and to whom the police would then direct
interrogatory questions which tend to elicit incriminating statements.
SUPPOSE THE SUSPECT WENT TO THE POLICE STATION AND NARRATED EVENTS FREELY? IS HE
CONSIDERED UNDER POLICE INVESTIGATION?
No.
The assailed statements herein were spontaneously made by petitioner and were not at all elicited through questioning. It was
established that petitioner, together with his cousin Fiscal Jayona, personally went to the police station and voluntarily made the
statement that Leticia jumped out of his vehicle at around 12:30 a.m. of September 9, 1992. The RTC and the CA did not,
therefore, err in holding that the constitutional procedure for custodial investigation is not applicable in the instant case.
RIGHTS
(1) The rights of an accused person under in-custody investigation are expressly enumerated in Sec. 12, Art. III of the
Constitution, viz:
(a)Any person under investigation for the commission of an offense shall have the right to be informed of his rights to remain
silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of
counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel;
(b)No torture, force, violence, intimidation or any other means which vitiate the free will shall be used against him. Secret
detention places, solitary, incommunicado, or other similar forms of detention are prohibited;
(c)Any confession or admission in violation of this or Sec. 17 (Self-Incrimination Clause) hereof shall be inadmissible in
evidence against him;
(d)The law shall provide for penal and civil sanctions for violation of this section as well as compensation to aid rehabilitation of
victims of torture or similar practice, and their families.

(2) Under RA 7834, the following are the rights of persons arrested, detained or under custodial investigation:
(a)Any person arrested, detained or under custodial investigation shall at all times be assisted by counsel;
(b)Any public officer or employee, or anyone acting under his order or in his place, who arrests, detains or investigates any
person for the commission of an offense shall inform the latter, in a language known to and understood by him, of his right to
remain silent and to have competent and independent counsel, preferably of his own choice, who shall at all times be allowed to
confer privately with the person arrested, detained or under custodial investigation. If such person cannot afford the services of
his own counsel, he must be provided with a competent and independent counsel by the investigating officer;

(c)The custodial investigation report shall be reduced to writing by investigating officer, provided that before such report is
signed, or thumbmarked if the person arrested or detained does not know how to read and write, it shall be read and adequately
explained to him by his counsel or by the assisting counsel provided by the investigating officer in the language or dialect known
to such arrested or detained person, otherwise, such investigation report shall be null and void and of no effect whatsoever;
(d)Any extrajudicial confession made by a person arrested, detained or under custodial investigation shall be in writing and
signed by such person in the presence of his counsel or in the latters absence, upon a valid waiver, and in the presence of any of
the parents, older brothers and sisters, his spouse, the municipal mayor, the municipal judge, district school supervisor, or priest
or minister of the gospel as chosen by him; otherwise, such extrajudicial confession shall be inadmissible as evidence in any
proceeding;
(e)Any waiver by person arrested or detained under the provisions of Art. 125 of the Revised Penal Code or under custodial
investigation, shall be in writing signed by such person in the presence of his counsel; otherwise such waiver shall be null and
void and of no effect;
(f)Any person arrested or detained or under custodial investigation shall be allowed visits by his or conferences with any member
of his immediate family, or any medical doctor or priest or religious minister chosen by him or by his counsel, or by any national
NGO duly accredited by the Office of the President. The persons immediate family shall include his or her spouse, fianc or
fiance, parent or child, brother or sister, grandparent or grandchild, uncle or aunt, nephew or niece and guardian or ward.

(3) Three rights are made available by Sec. 12(1):

(a)The right to remain silent Under the right against self-incrimination in Sec. 17, only an accused has the absolute right to
remain silent. A person who is not an accused may assume the stance of silence only when asked an incriminatory question.
Under Sec. 12, however, a person under investigation has the right to refuse to answer any question. His silence, moreover, may
not

be

used

against

him

(People

vs.

Alegre

and

Gordoncillo,

94

SCRA

109);

(b)The right to counsel Example of those who are not impartial counsel are (1) Special counsel, private or public prosecutor,
counsel of the police, or a municipal attorney whose interest is adverse to that of the accused; (2) a mayor, unless the accused
approaches him as counselor or adviser; (3) a barangay captain; (4) any other whose interest may be adverse to that of the
accused

(People

vs.

Tomaquin,

GR

133188,

July

23,

2004);

(c)The right to be informed o his rights the right guaranteed here is more than what is shown in television shows where the
police routinely reads out the rights from a note card; he must also explain their effects in practical terms (People vs. Rojas, 147
SCRA 169). Short of this, there is a denial of the right, as it cannot then truly be said that the person has been informed of his
rights

(People

vs.

Nicandro,

141

SCRA

289).

(4) Custodial investigation involves any questioning initiated by law enforcement officers after a person has been taken into
custody otherwise deprived of his freedom of action in any significant way. The right to custodial investigation begins only when
the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect
has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating
statements (Escobedo vs. Illinois, 378 US 478; People vs. Marra, 236 SCRA 565). It should be noted however, however, that
although the scope of the constitutional right is limited to the situation in Escobedo and Marra, RA 7438 has extended the
guarantee to situations in which an individual has not been formally arrested but has merely been invited for questioning
(People vs. Dumantay, GR 130612, May 11, 1999; People vs. Principe, GR 135862, May 2, 2002).

DEAN RIANO EVIDENCE FINALS REVIEWER and LAST MINUTE TIPS

by Bimby and Klowee

1.

Memorize Falsus in uno falsus in omnibus

Falsus in uno vs. Falsus in Omnibus means false in one thing, false in everything
*interpretation is not strict
*While the witnesses may differ in their recollections of an incident, it does not necessarily follow from
their disagreements that all of them should be disbelieved as liars and their testimonies completely
discarded. It is not a positive rule of law. The witness must have a conscious and deliberate intention to
falsify a material point.

2.

Distinguish Factum Probans vs. Factum Probandum

Factum Probandum
Ultimate Facts
Hypothetical

a.
b.

Factum Probans
Material evidencing the proposition
Existent.

Factum probandum is the fact or proposition to be established

Factum Probans the facts or material evidencing the fact or proposition to be established
*Example: If P claims to have been injured by the negligence of D who denies having been negligent, the
negligence of D and the causal connection between such negligence, and the injuries of P taken as a
whole = Factum Probandum
The evidence offered by P, whether it be object, documentary or testimonial, constitute the materials to
prove the liability of D. The totality of the evidence to prove the liability refers to the Factum Probans
*If the defendant admits his negligence in his answer to the complaint, there is no more need to prove
negligence. Hence, negligence ceases to be a factum probandum in this case.
*if the factum probandum signifies the fact or proposition to be established, then matters of 1) judicial
notice, 2)conclusive presumptions, 3)judicial admissions cannot qualify as parts of the factum probandum
of a particular case, because such matters need not be established or proven.

*Factum probandum in civil case refers to the elements of a cause of action from the point of view of the
plaintiff and the elements of the defense from the point of view of the defendant.
*In criminal cases factum probandum includes all matters that the prosecution must prove beyond
reasonable doubt in order to justify a conviction.
3.

4.
a.

Can Rules of Evidence be used in non-judicial proceedings?

The rules of evidence, being parts of the Rules of Court, apply only to judicial proceedings (Sec. 1 Rule
128)
*Sec.4. In what cases not applicable. These Rules shall not apply to election cases, land registration,
cadastral, naturalization and insolvency proceeding, and other cases not herein provided for, except by
analogy or in a suppletory character and whenever practicable and convenient.
Ex. Not applicable in Administrative bodies, CSC, Petition for naturalization, labor cases

Best Evidence Rule (Original document rule) (primary evidence rule)

Concept
i. Original of the document must be produced; When the subject matter of the inquiry is the contents of
a document , no evidence shall be admissible other than the original document itself,
b. Exceptions to the rule
i. When the original has been lost, or destroyed, or cannot be produced in court, without bad faith on
the part of the offeror;
ii. 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;
iii. 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
iv. When the original is a public record in the custody of a public officer or is recorded in a public office.
*Involves only the contents of a writing. The rule cannot be invoked unless the contents of a writing is the
subject of judicial inquiry, in such case; the best evidence is the original writing itself.
*Where the issue is the execution or existence of the document or the circumstances surrounding its
execution, the best evidence rule does not apply and the testimonial evidence is admissible.
*Where the issue is only as to whether such document was actually executed, or exists, or on the
circumstance relevant to or surrounding its execution, the best evidence rule does not apply and
testimonial evidence is admissible.
*The best evidence rule applies only when the purpose is to establish the terms of a writing. When the
evidence introduced concerns some external facet about a writing like its existence, execution or delivery
without reference to its terms, the rule cannot be invoked. The subject of inquiry under the best evidence
rule it the CONTENTS of a writing, NOT THE TRUTH thereof. Where the truth is in issue, the hearsay rule
will now be involved.
c. Illustrative applications
i. 1994 Bar At the trial of ace for the violation of the Dangerous Drugs Act, the prosecution offers in
evidence a photocopy of the marked bills used in the buy-bust operation. Ace objects to the introduction
of the photocopy on the ground that the Best Evidence Rule prohibits the introduction of secondary
evidence in lieu of the original is the photocopy admissible in evidence?
1. Yes, the photocopy of the bills being object evidence is admissible in evidence without violation of the
best evidence rule. The rule applies only to documentary evidence and not to object evidence.
*The reason for the best evidence rule is the prevention and detection of fraud.

1.
2.
3.
4.

a.
b.
c.
d.

*The best evidence rule may be waived if not raised in the trial
*If the original be presented in evidence
1) Find a legal excuse for failure 2) present secondary evidence
If secondary evidence is to be offered in evidence, like a copy, the proponent has to lay the basis for the
admission of the copy of the document.
Excuses for not presenting the original
When the original has been lost or destroyed or cannot be produced in court, without bad faith on the
part of the offeror;
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
When the original consists of numerous accounts or other documents cannot be examined in court
without great loss of time and the fact sought to be establish is only the general result of the whole; and
When the original is a public record in the custody of a public officer or is recorded in a public office.
*How to lay the basis for presenting secondary evidence:
a) The offeror must prove the execution and existence of the original document;
b) The offeror must show the cause of its unavailability
Loss, destruction, or unavailability
c) The offeror must show that the unavailability was not due to his bad faith
Correct order of proof is as follows Existence, execution, loss, and contents.
Due execution and authenticity of the document must be proved either: a) by anyone who saw the
document executed or written, or by evidence of the genuiness of the signature or handwriting of the
maker.
When original is in the custody or control of the adverse party:
Laying the basis requires:
The original exists.
That the said document is under the custody or control of the adverse party;
That the proponent of secondary evidence has given the adverse party reasonable notice to produce the
original document
That the adverse party failed to produce the original document despite the reasonable notice.
*Waiver: Failure to object to the parole evidence presented by the adverse party operates as a waiver of
the protection of the rule.
* The loan may be proved by the photocopy as long as A lays the basis for the introduction of secondary
evidence, to wit: a) the existence and due execution of the original, and b) the loss of the original without
bad faith on his part. (Sec. 5, Rule 130)

Distinction between Best Evidence and parol Evidence

Best Evidence Rule
Parol Evidence Rule
1. Establishes a preference for the original document Presupposes the original is available
over secondary evidence thereof.
2. Precludes the admission of secondary evidence if
Precludes the admission of other evidence to prove
the original document is available.
the terms of a document other than the contents of
the document itself for the purpose of varying the
terms of the writing.
3. Can be invoked by any litigant to an action
Can be invoked only by the parties to the document
whether or not said litigant is a party to the
and their successors in interest.
document involved.

4.

Applies to all forms of writing

Applies only to written contracts and wills.

5.

Define Parol Evidence

*Applies to agreements and will. Parol evidence means offering extrinsic evidence that would modify,
explain or add to the terms of the written agreement. BUT it is allowed if any of the following are shown:
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;
c. The validity of the written agreement;
d. The existence of other terms agreed to by the parties or their successors in interest after the execution of
the written agreement.
And only if it is put in issue in the pleadings.
*The rule applies ONLY to contracts which the parties have decided to set forth in writing. When n the
terms of an agreement is merely oral, the parol evidence rule should not be applied.
*Parol evidence does not apply in oral agreements, public writing, private writing, express trust (although
parol evidence applies to wills.

6.

Testimonial Evidence Adverse party Read Sec. 6. Loss, Destroyed, Unavailable Originals (Sec 5)
*Showing that the original document is in the custody or under the control of the adverse party does not
ipso facto authorize the introduction of secondary evidence to prove its contents. The party who seeks to
present secondary evidence must lay a basis for its introduction.
Laying the basis:

1)
2)
3)

That the original exists;

That the document is under the custody or control of the adverse party;
That the proponent of secondary evidence has given the adverse party reasonable notice to produce the
original document;
4) That the adverse party failed to produce the original document despite the reasonable notice.
How to notify: motion for the production of the original or by subpoena duces tecum, provided that the
party in custody has sufficient time to produce it.
After the foundational requirement for the introduction of secondary evidence have been complied with,
secondarily evidence may now be presented as in the case of loss. This mean that the contents of the
document may now be proven by
a copy of the document a recital of its contents in some authentic document
By testimony of a witness in the order stated (Sec. 5 Rule 130)
7.
a.

Testimonial evidence topics not found in Rule 130

132 (Sec. 3) Right of witnesses (Sec .6) Cross Exam and Sec. 11 Impeachment of witnesses
i. Are the rights of the accused violated in case of compulsory HIV testing? No. There is no
testimonial compulsion involved by extracting blood from the accused for testing purposes. Thus, there is
no violation of the right to privacy and the right to be presumed innocent.
ii. Should DNA evidence be admitted? Yes. The right against self incrimination applies only to
testimonial evidence. Extracting blood samples and cutting strands of hair do not involve testimonial

compulsion but purely mechanical acts which neither requires discretion or reasoning. (Tijing v. Court of
Appeals.
iii. The right against self incrimination does not apply to physical and mechanical act. It applies only to
testimonial compulsion which is not the case under the facts.
iv. Degrading questions although degrading a witness must answer the question if the degrading
answer a) is the very fact in issue; or b) refers to a fact from which the fact in issue would be presumed.
(Rule 132)
8.

What are the elements of a dying declaration? #3 exam

*Must comply with the following foundational elements
1. That the declaration is one made by a dying person;
2. That the declaration was made by said dying person under the consciousness
Of impending death
3. That the declaration refers to the cause and circumstances surrounding the death of the
declarant and not of anyone else;
4. That the declaration is offered in a case where the declarants death is the subject of inquiry;
5. The declarant is competent as a witness had he survived;
6. The declarant should have died.
Note: must refer to the death of the declarant, not merely injuries.
*If the declarant survives HIS DECLARATION MAY BE ADMISSIBLE AS PART OF THE RES GESTAE.
*The former rule embodied in Supreme Court decisions, which declared that a dying declaration is offered
in a criminal case for homicide, murder, or parricide wherein the declarant is the victim, no longer holds
true. As amended
Parts of the Res Gestae
Literally means things done. Res Gestae is the startling event of which the spontaneous
statement is only a part of.

1)
a.
b.
c.
d.
2)

a.
b.
c.
d.

9.

The use of res Gestae in the Philippines is limited to two matters:

Spontaneous statements
That there is a startling occurrence taking place;
That statements were made while the event is taking place or immediately prior to or subsequent thereto;
The statements were made before the declarant had the time to contrive or devise a falsehood
That the statement relates to the circumstances of the startling even or occurrence, or that the statements
must concern the occurrence in question and its immediate attending circumstance.
Verbal acts Statement accompanying an equivocal act material to the issue, and giving it a legal
significance a conduct that is equivocal or ambiguous, one which in itself does not signify anything
when taken separately (legal significance) To be admissible, the following requisites must be present:
The principal act to be characterized must be equivocal (clear need not be explained);
The equivocal act must be material to the issue;
The statement must accompany the equivocal act;
The statement gives a legal significance to the equivocal act

Exceptions to the hearsay rule, are all hearsay, but are admissible Sec. 36 of Rule 130 ex.
Which of the following is hearsay?

Hearsay
vs.
Hearsay evidence is one that is not based on ones
personal knowledge of others to prove the truth of
the matter asserted in an out-or-court

Opinion
An opinion evidence is based on the personal
knowledge or personal conclusion of the witness
based on his skill, training, or experience.

Examples of Non-hearsay evidence

A statement having probative worth simply by virtue of the fact that it was uttered, if relevant to a material
fact inissue is not hearsay and is generally admissible. Where a statement is not offered for the truth of
the contents of the conversation, but only to show that it was made, then the statement is not hearsay.
For example, a statement that is offered to show its patent falsity, so as to suggest the defendants
consciousness of guilt, is NOT hearsay.
b. A statement relating to the state of mind of the declarant and statement relating to the state of mind of the
listener, these are not hearsay, but merely constitute circumstantial evidence of an assertion. Ex. To
prove by inference the testators state of mind, I am Stalin, Roosevelt, Saddam Hussein, rolled into one
c. A threat against a witness may be offered in evidence to show its impact on the witness and where the
reasonableness of a persons conduct is an issue, and out of court declaration may be offered to explain
the person's reactions to the declaration.
d. Words offered to prove hearers reaction are admissible when they are offered to show their effect on
one whose conduct is at issue.
a.

1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.

Independent relevant statement: The newspaper clipping is admissible as non-hearsay if offered for the
purpose of showing that the statement of X was made to a reporter regardless of the truth or falsityof the
statement. If it is relevant, it is admissible as an independent relevant statement (non hearsay) It would be
hearsay if offered to prove the truth that x was the robber.
Exception to the Hearsay Rule:
Dying Declarations
Declaration against interest
Act or declaration about pedigree
Family reputation or tradition regarding pedigree
Common reputation
Parts of the res Gestae
Entries in the course of business
Entries in official records
Commercial lists
Learned treatises
Testimony or deposition at a former trial
Dying Declarations
*must be impending, near, and certain.
Declaration about pedigree
*The declaration about pedigree may be received in evidence if the relationship is shown by evidence
other than the declaration. The word pedigree includes relationship, family genealogy, birth, marriage,
death, the dates when and the places where these facts occurred, and the names of the relatives. It also
embraces facts of family history intimately connected with pedigree.

a)
b)
c)
d)
e)
f)

Entries in the course of business.

Elements:
Entries were made at, or near the time of the transactions
Such entries were made in the regular course of business
The person making the entries was in a position to know the facts stated in the entries.
The person making the entries did so in a position to know the facts stated in the entries
The person making the entries did so in his professional capacity, or in the performance of duty and in the
regular course of business
The person making the entry is now dead or unable to testify.

Declarations against Interest

Ex. A statement by the debtor before he died that he owes the creditor a sum of money, or an oral
acknowledgment by the principal that he received the money previously entrusted to his agent, are clear
declarations against the interest of the person making it. Note that declaration against interest made by
the deceased, or by one unable to testify, is admissible even against the declarants successors in
interest or even against third person.
Common reputation
While common reputation in the community may establish a matter of public or general interest, marriage
or moral character, it CANNOT establish pedigree. This is established by reputation in the family and not
in the community.
Commercial Lists and the Like
Must be made by persons engaged in that occupation and are generally used and relied upon by them
and those lists and reports are published.
Learned Treaties.
History books, published finding of scientists fall within this exception IF the subject testifies to the
expertise of the writer of if the court takes judicial notice of such fact.
Testimony or Deposition at a Former Proceeding.
The testimony is one given in a former case or proceeding or administrative, involving the same parties
and the same subject matter. The testimony was given by one who is now dead or unable to testify. Said
testimony may be given in evidence against the adverse party provided the latter had the opportunity to
cross-examine the witness who gave the previous testimony.

Waiver
The rules of evidence may be waived. The rules are established for the protection of the parties. Except if
the rule waived by the parties has been established by law on grounds of public policy.

1)

Matters need NOT be proved (ISA-JP)

Immaterial allegations

2)
3)
4)
5)

1)
2)
3)
1)
2)
3)
4)

Facts admitted or not denied provided they have been sufficiently alleged (Rule 8)
Agreed and Admitted facts
Facts subject to Judicial Notice
Facts legally Presumed
Section 4. JUDICIAL ADMISSION is and admission, verbal or written, made by a party in the course of
the proceedings.
Elements
The same must be made by a party to the case
The admission must be made in the course of the proceedings in the same case, and
There is no particular form for an admission, it may either be written or verbal.
Judicial Admissions may be made in
Pleadings filed by the parties,
In the course of trial either verbal or written manifestations or stipulations
In other stages of judicial proceedings as in the pre trial of the case
Admissions obtained through depositions, written interrogatories or requests for admissions.
Judicial admissions can be made by either a party or counsel.

Judicial admission may be contradicted only when it is shown that

1. It was made through palpable mistake or 2. That no such admission was made.
Remedy of a party who gave a judicial admission:
In case of written judicial admission motion to withdraw the pleadings, motion, or other written
instrument containing such admission.
Judicial admissions are always conclusive upon the admitter and do not require formal offer as evidence,
unlike in the case of extra-judicial admissions.
Rule on dismissed pleadings
Admissions made in pleadings that have been dismissed are merely extrajudicial admission.
Admissions in civil cases
Admissions in a pleading which had been
withdrawn or superseded by and amended
pleading are considered extra judicial admission

Admissions in criminal cases

Admissions during arraignment may be withdrawn
at any time before the judgment of conviction
becomes final, but such plea of guilty later
withdrawn is not admissible in evidence againt the
accused who made the plea.
It is not even considered an extra judicial admission

Disqualification by reason of Marriage (sec.

22)

Disqualification by reason of Marital privilege

(sec. 24 (a)

Can be invoke only if one of the spouses is a

party to the action

Can be claimed whether or not the other

spouse is a party to the action

Applies only if the marriage is existing at the

time the testimony is offered

Can be claimed even after the marriage is

dissolved

Constitutes a total prohibition for or against

the spouse of the witness
The objection would be raisedon the ground
of marriage. The married witness would not
be allowed to take the stand at all because of
the disqualification. Even if the testimony is
for or against the objecting spouse, the
spouse-witness cannot testify.

Applies only to confidential communications

between the spouses
The married person is on the stand but the
objection of privilege is raised when
confidential marital communication is inquired
into.

Disqualification by reason of marriage (spousal immunity)

Take note of the ff.
Judicial admissions vs. Extra-judicial admissions
Competence vs Relevance
Best Evidence Rule
Real Evidence definition (replica offered as evidence)
Parol evidence would not be objected if the ambiguity was put in issue in the pleadings
Laying the basis for the offer of a photocopy of a contract. Originals
Expert testimony of a promissory note
Credibility defined refers to worthiness of belief.
Chain of custody
When may an ordinary witness testify as to his opinion?
When may parol evidence be allowed?
How do you lay the basis for introduction of secondary evidence when a) original is lost b) ht original is in
the custdy of the adverse party.
How to impeach testimony of a witness, definition