Evidence Basic Principles and Selected Problems: Alexander G. Gesmundo

EVIDENCE
EVIDENCE
Basic Principles and Selected Problems
Alexander G. Gesmundo
I. WHEN EVIDENCE IS NECESSARY
Evidence is the means of proving the truth of a fact in judicial

proceedings1. It becomes necessary to present evidence in a case when the
pleadings filed present factual issues. Factual issues arise when a party
specifically denies material allegations in the adverse partys pleading. These
are the issues which the judge cannot resolve without evidence being
presented thereon. Thus, whether a certain thing exists or not, whether a
certain act was done or not, whether a certain statement was uttered or not,
are questions of fact that require evidence for their resolution. Questions of
fact exist when the doubt or difference arises as to the truth or falsehood of
alleged facts.2
All facts in issue and relevant facts must, as a general rule, be proven
by evidence except the following: (1) Allegations contained in the complaint
or answer immaterial to the issues; (2) Facts which are admitted or which are
not denied in the answer, provided they have been sufficiently alleged; (3)
Those which are the subject of an agreed statement of facts between the
parties; as well as those admitted by the party in the course of the
proceedings in the same case; (4) Facts which are the subject of judicial
notice; (5) Facts which are legally presumed; and (6) Facts peculiarly within
the knowledge of the opposite party.3
Other than factual issues, the case invariably presents legal issues. A
question of law exists when the doubt or difference arises as to what the law
is on a certain state of facts. Legal issues are resolved by simply applying the
law or rules applicable, or interpreting the law applicable considering the facts
of the case. Generally, no evidence need be presented on what the
applicable law is. Everyone, including the judge, is presumed to know the law.
There is a question of law if the issue raised is capable of being

resolved without need of reviewing the probative value of the evidence. The
resolution of the issue must rest solely on what the law provides on a given
set of circumstances. Once it is clear that the issue invites a review of the
evidence presented, the question posed is one of fact. If the query requires a
re-evaluation of the credibility of witnesses, or the existence or relevance of
1
Section 1, Rule 128, Rules of Court.
2
Paraaque Kings Enterprises, Inc. v. Court of Appeals, G.R. No. 111538, February 26, 1997,
268 SCRA 727; Sps. Santos v. Court of Appeals, G.R. No. 120821, August 1, 2000, 337
SCRA 67, 74.
3
Republic v. Vda. De Neri, et al., G.R. No. 139588, March 4, 2004, 424 SCRA 676, 692.
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surrounding circumstances and their relation to each other, the issue in that
query is factual.4
When the parties pleadings fail to tender any issue of fact, either
because all the factual allegations have been admitted expressly or impliedly
(as when a denial is a general denial), there is no need to conduct trial, as
there is no need to present evidence anymore. The case is then ripe for
judicial determination, either through a judgment on the pleadings 5 or by
summary judgment.6
During trial, parties to any action may agree, in writing, upon the facts
involved in the litigation and submit the case for judgment on the facts agreed
upon without the introduction of evidence.7
A party may waive its right to present testimonial evidence and opt to
adduce documentary evidence and, thereafter, submit the case for resolution
based solely on their pleadings and documentary evidence.8
II. ADMISSIBILITY OF EVIDENCE
The study of the law on Evidence involves two main problems, viz: (1)
determining whether a given piece of evidence is admissible, and (2) the
proper presentation of that evidence so that the court will consider it in
resolving the issues and deciding the case. Although evidence may, by itself,
be admissible, the court may not admit or consider it in the resolution of the
case, unless the evidence was properly presented.
A. Axiom of Admissibility of Evidence
Evidence is admissible when it is relevant to the issues and is

competent, i.e., it is not excluded by the law or the Rules of Court. 9
Evidence is relevant when it has a relation to the fact in issue as to induce
belief in its existence or non-existence.10
Collateral matters are those outside of the controversy or not

directly connected to the principal issues in dispute as may be determined
4
Royal Cargo Corp. v. DFS Sports Unlimited, Inc., G.R. No. 158621, December 10, 2008,
573 SCRA 414, 421; Juaban, et al v. Espina, et al., G.R. No. 170049, March 14, 2008, 548
SCRA 588; 610; Citibank, N.A. v. Jimenez, G.R. No. 166878, December 18, 2007, 540
SCRA 573, 582.
5
RULES OF COURT, Rule 34.
6
7
RULES OF COURT, Rule 30, Sec. 6.
8
Republic v. Vda de Neri, et al., supra note 3 at 690-691.
9
RULES OF COURT, Rule 128. Sec. 3.
10
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from the partys pleadings. It is allowed if it tends in any reasonable

degree to establish the probability or improbability of a fact in issue. 11
Collateral evidence is of a lesser degree of reliability as evidence than
material evidence. Material evidence directly proves a fact in issue. Thus,
the testimony of an eyewitness to the commission of a crime is material;
the evidence of motive or flight of the accused may be relevant. Evidence
that is material or relevant must also be competent to be admissible. For
example, although the testimony of the eyewitness may be material, it
may be inadmissible if it is excluded by the marital disqualification rule.
Relevancy or materiality of evidence is a matter of logic, since it is

determined simply by ascertaining its logical connection to a fact in issue
in the case. It is, therefore, inadvisable for a judge to ask an objecting
counsel why an offered piece of evidence is irrelevant or immaterial. By
his inquiry, he shows his unfamiliarity with the issues in the case. A judge
is expected to be aware of the issues which he was supposed to have
defined and limited in his mandatory pre-trial order.12 On the other hand,
the grounds for objection to the competency of evidence must be
specified13 and are determined by the Rules or the law.
The opposites of the two requisites for admissibility of evidence, viz.,

irrelevancy, immateriality, or incompetency, are the general grounds for
objection. The first two are valid grounds for objection without need of
specification or explanation. The third ground for objection, incompetency,
if offered without further explanation, is not valid for being unspecific,
except when invoked in reference to the lack of qualification of a witness
to answer a particular question or give particular evidence.
B. Proper Presentation of Evidence
Every piece of evidence, regardless of its nature, requires certain

processes of presentation for its admissibility and admission.
It is to be noted that there is now a preclusion rule.14 [N]o evidence

shall be allowed to be presented and offered during the trial in support of a
party's evidence-in-chief other than those that had been identified and pre-
marked during the pre-trial. Any other evidence not indicated or listed in
the pre-trial order shall be considered waived by the parties. However, the
Court, in its discretion, may allow introduction of additional evidence in the
11
Id.
12
See A.M. No. 03-1-09 SC Re: Guidelines To Be Observed By Trial Court Judges and
Clerks of Court in the Conduct of Pre-Trial and Use of Deposition-Discovery Measures
13
RULES OF COURT, Rule 134, Sec. 36
14
As distinguished from the exclusionary rule as provided in RULES OF COURT, Rule 128, Sec.
3.
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following cases: (a) those to be used on cross-examination or re-cross-

examination for impeachment purposes; (b) those presented on re-direct
examination to explain or supplement the answers of a witness during the
cross-examination; (c) those to be utilized for rebuttal or sur-rebuttal
purposes; and (d) those not available during the pre-trial proceedings
despite due diligence on the part of the party offering the same.15
1. Object Evidence
Object evidence must generally be marked (Exhibits A, B, etc.

for the plaintiff; Exhibits 1, 2, 3, etc. for the defendant) either during the
pre-trial or during its presentation at the trial. It must also be identified
as the object evidence it is claimed to be. This requires a testimonial
sponsor. For example, a forensic chemist identifies marijuana leaves
as those submitted to him in the case for examination. Further, object
evidence must be formally offered after the presentation of a partys
testimonial evidence.16
2. Oral Evidence
Oral evidence is presented through the testimony of a witness.

It must be formally offered at the time the witness is called to testify.17
Objections may then be raised against the testimony of the witness. If
the objection is valid, as when the witness testimony is barred by the
hearsay rule or the opinion rule, the witness will not be allowed to
testify. If the witness is otherwise allowed to testify, he shall be sworn
in, either by taking an oath or making an affirmation.18 It is essential
that the proper foundation for the testimony of a witness must be laid.
An ordinary witness must be shown to have personal knowledge of the
facts he shall testify to; otherwise, his testimony will be hearsay, or he
will be incompetent to answer the questions to be asked of him. An
expert witness must be specifically qualified as such; otherwise, he
cannot validly give his opinion on matters for which he may have been
summoned as a witness.
However, the requirement of qualifying an expert witness may

be dispensed with if:
(a) the adverse counsel stipulates on the experts

qualification; or
15
A.M. No. 03-1-09-SC, See A. Civil Cases 2.d, Annex B and Annex D, thereof.
16
17
Id.
18
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(b) the court takes judicial notice of the witness expertise,

because the judge happens to be aware thereof on account of
the judges judicial functions.
It has been ruled that where the supposed experts testimony

would constitute the sole ground for conviction and there is equally
convincing expert testimony to the contrary, the constitutional
presumption of innocence must prevail.19
Rule 132, Sec. 34 provides that the court shall consider no

evidence which has not been formally offered, and that the purpose for
which the evidence is offered must be specified. In this connection, it
has been asked whether it would be proper for the judge to disregard a
witness direct testimony given without the prior, formal offer thereof
which Rule 132, Sec. 35 requires and, corollarily, whether the adverse
party may be required to cross-examine that witness. In People v.
Marcos, 20 the Supreme Court ruled that if a witness has given
unoffered direct testimony without objection from the adverse party, the
latter is estopped from raising that objection which he is deemed to
have waived; hence, although not formally offered, the testimony may
be considered by the court.
The view can be advanced, however, that although the

aforesaid testimony was not expressly formally offered, it was,
nonetheless, formally offered, albeit impliedly and automatically, the
moment each question was propounded to elicit an answer. This view
is premised on two related provisions in Rule 132, Sec. 36, i.e., that
Objection to evidence offered orally must be made immediately after
the offer is made, and that Objection to a question propounded in the
course of the oral examination of a witness shall be made as soon as
the grounds therefore shall have become reasonably apparent.
Clearly, the purpose of the express formal offer of oral evidence before
the witness testifies is merely to determine, on the basis of the stated
substance of the testimony and its purpose, whether the witness shall
be allowed to testify. Once the witness is allowed to testify, each
question propounded to elicit specific oral evidence may still be
objected to as soon as a ground for objection becomes reasonably
apparent. But it is fundamental that an objection to evidence be validly
raised only after an offer is made. Thus, every question asked of a
witness, especially on direct examination, presupposes a formal offer
of the answer, the oral evidence sought to be elicited. It would seem,
19
Bayot v. Sandiganbayan, G.R. Nos. 54645-76, December 18, 1986, 142 SCRA 304, 318
citing Cesar v. Sandiganbayan, G.R. Nos. 54719-50, January 7, 1985, 134 SCRA 105, 127.
20
G.R. No. 91646, August 21, 1992, 212 SCRA 748; People v. Ancheta, et al., G.R. No.
143935, June 4, 2004, 431 SCRA 42, 49-50.
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therefore, that unlike documentary and object evidence which are

formally offered only after all the witnesses of a party have testified,
oral evidence is offered twice: once, expressly, before the witness
testifies and, again, with each question propounded to the witness.
Failure to interpose any objection in either stage amounts to a waiver
of objection to its admissibility.21
3. Documentary evidence
Documentary evidence is (1) marked; (2) identified as the

document which it is claimed to be (as when the witness asserts that
the document presented to him is the same contract which he claims
was executed between the two parties); (3) authenticated, if a private
document, by proving its due execution and genuineness; and (4)
formally offered after all the proponents witnesses have testified.22
An instrument, document or paper which is required by law to

be stamped and which has been signed, issued, accepted or
transferred without being duly stamped, shall not be recorded, nor shall
it or any copy thereof or any record of transfer of the same be admitted
or used in evidence in any court until the requisite stamp or stamps
shall have been affixed thereto and cancelled.23
4. Jurisprudential guidelines on evidence admissible to establish

age
In People v. Pruna, 24 the Supreme Court set the following

guidelines in appreciating age, either as an element of the crime or as
a qualifying circumstance:
1. The best evidence to prove the age of the offended

party is an original or certified true copy of the certificate
of live birth of such party;
21
Bayani v. People, G.R. No. 155619, August 14, 2007, 530 SCRA 84, 92.
22
23
Republic Act No. 8424, [1997] Sec. 201, as amended by Republic Act No. 8761 [2000] and
Republic Act No. 9010 [2001].
24
People v. Pruna, G.R. No. 138471, October 10, 2002, 390 SCRA 577, 603-604, reiterated
in People v. Barcena, G.R. No. 168737, February 16, 2006, 482 SCRA 543, 558-559; People
v. Cayabyab, G.R. No. 167147, August 3, 2005, 465 SCRA 681, 689-690; People v. Rullepa,
G.R. No. 131516, March 5, 2003, 398 SCRA 567, 583-584; People v. Legaspi, G.R. No.
137283, February 17, 2003, 397 SCRA 531, 545-546; People v. Villarama, G.R. No. 139211,
February 12, 2003, 397 SCRA 306, 324-325.
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2. In the absence of a certificate of live birth, similar

authentic documents such as baptismal certificate and
school records which show the date of birth of the victim
would suffice to prove age;
3. If the certificate of live birth or authentic document is

shown to have been lost or destroyed or otherwise
unavailable, the testimony, if clear and credible, of the
victim's mother or a member of the family, either by
affinity or consanguinity who is qualified to testify on
matters respecting pedigree, such as the exact age or
date of birth of the offended party pursuant to Section 40,
Rule 130 of the Rules on Evidence, shall be sufficient
under the following circumstances:
a. If the victim is alleged to be below 3 years

of age and what is sought to be proved is
that she is less than 7 years old;
b. If the victim is alleged to be below 7 years
that she is less than 12 years old;
c. If the victim is alleged to be below 12 years
that she is less than 18 years old.
4. In the absence of a certificate of live birth,

authentic document, or the testimony of the victim's
mother or relatives concerning the victim's age, the
complainant's testimony will suffice, provided that it is
expressly and clearly admitted by the accused;
5. It is the prosecution that has the burden of

proving the age of the offended party. The failure of the
accused to object to the testimonial evidence regarding
age shall not be taken against him; and
6. The trial court should always make a categorical

finding as to the age of the victim.
In Sierra v. People, 25 the Supreme Court held that it is the

defense which has the burden of proving the minority of the accused
as an exempting circumstance in a crime of rape, since age or minority
is not an element of this crime. If the prosecution has a burden related
to age, this burden relates to proof of the age of the victim as a
circumstance that qualifies the crime of rape. With respect to the
25
Sierra v. People, G.R. No. 182941, July 3, 2009, 591 SCRA 666, 683.
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provision of R.A. No. 9344 (Juvenile Justice and Welfare Act of 2006),
the last paragraph of Section 7 thereof provides that any doubt on the
age of the child must be resolved in the childs favor.
C. Formal Offer of Evidence; Need for Statement of the Purpose of

Evidence
Evidence not formally offered will not be considered by the court in

deciding the case.26
On the last hearing day allotted for each party, he is required to

make his formal offer of evidence after the presentation of his last witness
and the opposing party is required to immediately interpose his objection
thereto. Thereafter, the judge shall make the ruling on the offer of
evidence in open court. However, the judge has the discretion to allow the
offer of evidence in writing, in conformity with Rule 132, Sec. 35.27
The formal offer of ones evidence is deemed waived after failing to

submit it within a considerable period of time.28
The pre-trial guidelines and Rule 132, Sec. 35 jointly considered, it

is made clear that the party who terminated the presentation of evidence
must make an oral offer of evidence on the very day the party presented
the last witness. Otherwise, the court may consider the partys
documentary evidence waived. While Sec. 35 of Rule 132 says that the
trial court may allow the offer to be done in writing, this can only be
tolerated in extreme cases where the object evidence or documents are
large in number say from 100 and above, and only where there is
unusual difficulty in preparing the offer.29
The party desiring to make a written offer of evidence should,

however, file a motion, pay the filing fee, set the date of the hearing not
later than 10 days after the filing of the motion and serve it on the address
of the party at least three (3) days before the hearing. In short, it is a
litigated motion and cannot be done ex parte.30
A party makes a formal offer of his evidence by stating its

substance or nature and the purpose or purposes for which the evidence
26
27
A.M. No. 03-1-09-SC.
28
Heirs of Pedro Pasag v. Parocha, G.R. No. 155483, April 27, 2007, 522 SCRA 410, 416,
citing Constantino v. Court of Appeals, G.R. No. 116018, November 13, 1996, 264 SCRA 59,
65.
29
Heirs of Pedro Pasag v. Parocha, supra at 417-418.
30
Id., at 418.
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is offered. 31 Without a formal offer of evidence and, hence, without a

disclosure of its purpose, it cannot be determined whether it is admissible
or not. This is so because it is the intended purpose for which a piece of
evidence is offered that determines what rule of evidence will apply for its
admissibility. A piece of evidence may be admissible if offered for one
purpose but may be inadmissible if offered for another. It must be
remembered that the purpose for which evidence is offered must be
specified because such evidence may be admissible for several purposes
under the doctrine of multiple admissibility, or may be admissible for one
purpose, and not for another, otherwise, the adverse party cannot
interpose the proper objection.
Evidence submitted for one purpose may not be considered for any
other purpose.32 For example, the testimony of a witness in a libel case
that he heard the defendant call the plaintiff a liar and a crook, is certainly
inadmissible for being hearsay if offered to prove the truth of the perceived
statement. However, the same testimony is perfectly admissible if offered
simply to prove that the statement was uttered. For that purpose, the
witness would be the only person qualified to testify on and prove what he
heard defendant say. Similarly, the declaration of a dying person made
without consciousness of his impending death will not qualify as a dying
declaration, although it may be admissible if offered as part of the res
gestae.
The trial court is bound to consider only the testimonial evidence

presented and exclude the documents not offered. Documents which may
have been identified and marked as exhibits during pre-trial or trial but
which were not formally offered in evidence cannot in any manner be
treated as evidence. Neither can such unrecognized proof be assigned
any evidentiary weight and value.
It must be stressed that there is a significant distinction between

identification of documentary evidence and its formal offer. The former is
done in the course of the pre-trial or the trial, and is accompanied by the
marking of the evidence as an exhibit; while the latter is done only when
the party rests its case. The mere fact that a particular document is
identified and marked as an exhibit does not mean that it has already
been offered as part of the evidence. It must be emphasized that any
evidence which a party desires to submit for the consideration of the court
must formally be offered by the party, otherwise, it is excluded and
rejected.33 However, the rule may be relaxed in that evidence not formally
31
32
Uniwide Sales Realty and Resources Corporation v. Titan-Ikeda Construction and
Development Corporation, G.R. No. 126619, December 20, 2006, 511 SCRA 335, 357.
33
Landingin v. People, G.R. No. 164948, June 27, 2006, 493 SCRA 415, 430; Pasag v.
Parocha, supra note 28 at 419-420.
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offered may be admitted and considered by the trial court, provided the
following requirements are present, viz: first, the same must have been
duly identified by testimony duly recorded and, second, the same must
have been incorporated in the records of the case.34
Annexes attached to pleadings, if not offered formally, cannot be

considered by the court, 35 unless the truth of their contents has been
judicially admitted.
To the general rule that the court shall not consider any evidence
not formally offered, there are certain exceptions:
1. Under the Rule on Summary Procedure, where no full blown trial is

held in the interest of speedy administration of justice;36
2. In summary judgments under Rule 35, where the judge bases his
decisions on the pleadings, depositions, admissions, affidavits and
documents filed with the court;
3. Documents whose contents are taken judicial notice of by the court;
4. Documents whose contents are admitted by the parties;
5. Object evidence which could not be formally offered because they

have disappeared or have become lost after they have been
marked, identified and testified on and described in the record and
became the subject of cross-examination of the witnesses who
testified on them during the trial, e.g., marijuana involved in a
prohibited drugs prosecution;37 and
6. In land registration, cadastral and election cases, naturalization and

insolvency proceedings when it is not practicable and convenient to
apply the Rules on formal offer of evidence.38
34
Ramos v. Spouses Dizon, et al., G.R. No. 137247, August 7, 2006, 498 SCRA 17, 31;
Heirs of Pasag v. Parocha, supra note 28 at 419-420.
35
Spouses Ong v. Court of Appeals, G.R. No. 117103, January 21, 1999, 301 SCRA 387,
399; Del Rosario v. Bonga, G.R. No. 136308, January 23, 2001, 350 SCRA 101, 110; People
v. Toledo, Sr., G.R. No. 139961, May 9, 2001, 357 SCRA 649, 663.
36
Hrs. of Sabanpan v. Comorposa, G.R. No. 152807, August 12, 2003, 408 SCRA 692.
37
People v. Napat-A, G.R. No. 84951, November 14, 1989, 179 SCRA 403; Tabuena v.
Court of Appeals, G.R. No. 85423, May 6, 1991, 196 SCRA 650; See also People v. Libnao,
G.R. No. 136860, January 20, 2003, 395 SCRA 407, 417.
38
Ong Chia v. Republic, G.R. No. 127240, March 27, 2000, 328 SCRA 749, 756.
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III. MODES OF EXCLUDING INADMISSIBLE EVIDENCE
There are two ways of excluding inadmissible evidence. One is by

objection and the other is by a motion to strike out.
In order that an objection or a motion to strike out after an answer has

been given, may be effective to render evidence inadmissible, the following
requisites must concur:
1. There must be an objection;

2. The objection must be timely made; and
3. The ground for objection must be specified.39
A. Evidence is Objected to at the Time it is Offered and Not Before:
1. Oral evidence is objected to after its express formal offer has been
made before the witness testifies.40 When, thereafter, the witness is
allowed to testify, objection to a question propounded in the course
of the oral examination of a witness shall be made as soon as the
grounds therefore shall become reasonably apparent.41
2. A party may waive his objections to the competency of a witness to

testify if, after such incompetency appears, such party fails to make
timely objection, despite having knowledge of the incompetency,
whether the objection is on the ground of want of mental capacity or
for some other reason.42
3. Documentary and object evidence are objected to upon their formal

offer after the presentation of a partys testimonial evidence.
B. Failure to seasonably object to offered evidence amounts to a

waiver of the grounds for objection. However, the rules of exclusion
are not self-operating. They must be properly and timely invoked.
39
40
41
42
People v. Duranan, G.R. Nos. 134074-75, January 16, 2001, 349 SCRA 180, 191.
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C. The grounds for objection must be specified. 43 Grounds not

raised are deemed waived. However, repetition of objection is
unnecessary when a continuing objection is properly made. 44
Objection to the purpose for which evidence is offered is not proper.
D. A Motion to Strike Out Answer or Testimony is Proper in the

Following Instances:
1. The witness answers prematurely.45
2. The answer is incompetent, irrelevant, or improper.46
The incompetency referred hereto is limited to the incompetency of

the witness to answer the question posed; it does not extend to the
general concept of incompetency of evidence for being excluded by
law or the Rules.
3. The answer given is unresponsive.
4. The ground for objection was not apparent when the question was
asked.
5. Uncompleted testimony e.g., a witness who gave direct testimony

subsequently becomes unavailable for cross-examination through
no fault of the cross-examiner.
6. Unfulfilled condition in conditionally admitted testimony.
E. Objections and Ruling
As a matter of general practice, it is deemed best to resolve doubts

in favor of the admission of the contested evidence, without prejudice to
such action as the court may deem fit to take in deciding the case on the
merits. This practice has added importance as regards the evidence for
the prosecution in criminal cases, for, once the accused has been
acquitted, there is no means to secure a review by appeal, no matter how
erroneous the action of the lower court may have been. Justice is most
effectively and expeditiously administered in the courts where trivial
objections to the admission of proof are received with least favor.
43
Id.
44
45
Id., Sec. 39.
46
Id.
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The practice of excluding evidence on doubtful objections to its

materiality or technical objections to the form of the questions should be
avoided. In a case of any intricacy, it is impossible for a judge of first
instance, in the early stages of the development of the proof, to know with
any certainty whether testimony is relevant or not; and where there is no
indication of bad faith on the part of the attorney offering the evidence, the
court may, as a rule, safely accept the testimony upon the statement of
the attorney that the proof offered will be connected later.
Moreover, it must be remembered that in the heat of the battle over

which he presides, a judge of first instance may possibly fall into error in
judging the relevancy of proof where a fair and logical connection is in fact
shown. When such a mistake is made and the proof is erroneously ruled
out, the Supreme Court, upon appeal, often finds itself embarrassed and
possibly unable to correct the effects of the error without returning the
case for a new trial a step which this court is always very loath to take.
On the other hand, the admission of proof in a court of first instance,

even if the question as to its form, materiality, or relevancy is doubtful, can
never result in much harm to either litigant, because the trial judge is
supposed to know the law; and it is its duty, upon final consideration of the
case, to distinguish the relevant and material from the irrelevant and
immaterial. If this course is followed and the cause is prosecuted to the
Supreme Court upon appeal, this court then has all the material before it
necessary to make a correct judgment.47
Although it is not possible to determine with precision, at an early

stage of the proceedings, how far said exhibits may affect the outcome of
that case, it is elemental that all parties therein are entitled to a reasonable
opportunity to establish their respective pretenses. Parties should be
allowed a certain latitude in the presentation of their evidence, lest they
may be so hampered that the ends of justice may eventually be defeated
or appear to be defeated. The danger of leading to such result must be
avoided.48
F. Objections to Evidence may be Formal or Substantive
1. Formal objections are based on the defective form of the question

asked.
47
People v. Abalos, G.R. No. 29039, November 28, 1969, 30 SCRA 599, 604-605, citing
Prats and Co. v. Phoenix, Insurance Co., 52 Phil. 807, 816-817 [1929].
48
People v. Montejo, G.R. No. 28699, April 29, 1975, 63 SCRA 488, 489; People v.
Montejo,108 Phil. 613, 621 [1960].
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Examples:
(1) leading questions which suggest to the witness the answer

desired.49
a. If counsel finds difficulty in avoiding leading questions, the judge

may suggest, to expedite proceedings, that counsel begin his
questions with the proper interrogative pronouns, such as who,
what, where, why, how, etc.
b. Leading questions are allowed of a witness who cannot be

reasonably expected to be led by the examining counsel, as
(a) on cross-examination;50
(b) when the witness is unwilling or hostile, after it has been

demonstrated that the witness had shown unjustified
reluctance to testify or has an adverse interest or had misled
the party into calling him to the witness stand and, in either
case, after having been declared by the court to be indeed
unwilling or hostile;51 or
(c) when the witness is an adverse party or an officer, director,

or managing agent of a public or private corporation or of a
partnership or association which is an adverse party.52
c. Leading questions may also be asked when there is difficulty in

getting direct and intelligible answers from a witness who is
ignorant, or a child of tender years,53 or is feeble minded, or a deaf-
mute.54
d. Leading questions may, moreover, be asked on preliminary

matters, i.e., on facts not in controversy, and offered only as basis
for more important testimony to follow. For example, You are Mrs.
Maria Morales, wife of the plaintiff in this case?
e. Likewise, asking a question which uses as a premise admitted

facts or the witness previous answer is not for that reason
objectionable as leading.
49
50
51
RULES OF COURT, Rule 132, Secs. 10 and 12.
52
Id.
53
See A.M. No. 00-4-07, SC Rule on Examination of Child Witness, V-A of this Benchbook.
54
Id.
F-14
EVIDENCE
(2) misleading questions, which assume as true a fact not testified to

by the witness (question has no basis), or contrary to that which he has
previously stated;55
(3) double or multiple questions, which are two or more queries in one.
For example, Q: Did you see the defendant enter the plaintiffs house,
and was the plaintiff there?
(4) vague, ambiguous, indefinite, or uncertain questions not allowed

because the witness cannot understand from the form of the question
just what facts are sought to be elicited.
(5) repetitious questions, or those already answered. However, on

cross-examination, the cross-examiner may ask a question already
answered to test the credibility of a witness.
(6) argumentative questions, which challenge a witness testimony by

engaging him in an argument, e.g., Q: Isnt it a fact Mr. Witness that
nobody could possibly see all the circumstances you mentioned in a
span of merely two seconds, and that either your observations are
inaccurate or you are lying?
2. Substantive objections are those based on the inadmissibility of the

offered evidence, e.g.:
(1) irrelevant, immaterial;

(2) best evidence rule;
(3) parole evidence rule;
(4) disqualification or witness;
(5) privileged communication;
(6) res inter alios acta;
(7) hearsay;
(8) opinion;
(9) evidence illegally obtained; and
(10) private document not authenticated.
As part of his judicial function, a Judge is undeniably clothed

with authority to admit or reject evidence determinative of the outcome
of the case.56
The ruling by the court on an objection must be given

immediately after an objection is made, unless the court desires to take
55
56
Deutsche Bank Manila v. Spouses Yok See, et al., G.R. No. 165606, February 6, 2006,
481 SCRA 672, 687, 694.
F-15
EVIDENCE
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
situations presented by the ruling.57 Thus, an objection to a question
asked of a witness must be at once resolved by the court by either
sustaining or overruling the objection.
It would be incorrect for a judge to consider the objection

submitted or noted. Unless the objection is resolved, the
examination of the witness could not be expected to continue since, in
all likelihood, the next question would depend on how the objection is
resolved. If the issue raised by the objection is a particularly difficult
one, it would not be improper for the judge to perhaps declare a brief
recess to enable him to quickly study the matter. But, certainly, the
resolution must be given before the trial resumes.
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, or one or some of them, must specify
the ground or grounds relied upon.58
Judges are advised to judiciously consider the validity of the

grounds for objections and carefully rule on them. A ruling that all
evidence formally offered are admitted for whatever they may be
worth will not reflect well on the judge, as it implies a hasty and ill-
considered resolution of the offer and the objections. Besides, the
phrase for whatever they may be worth is improper, since it refers to
the weight or credibility of the evidence. At the formal offer, the only
issue presented is the admissibility of evidence; the weight of the
evidence shall be considered only after the evidence shall have been
admitted. Another ruling that is ludicrous and even nonsensical is
Evidence admitted subject to the objections. This is non-ruling.
In case of honest doubt about the admissibility of evidence, it is

better policy to rule in favor of its admission. An erroneous rejection of
evidence will be unfair to the offeror, since the judge cannot validly
consider it, even if after the trial the judge realizes his mistake. On the
other hand, if the judge had erred in admitting a piece of evidence, he
may simply give it little or no weight when deciding the case.
57
58
Id.
F-16
EVIDENCE
IV. LAYING THE FOUNDATIONS FOR EVIDENCE
In determining the competency of an offered piece of evidence, the

court must examine the requisites provided by the pertinent rule or law for its
admissibility. These requisites must be established as foundations for the
evidence. For example, for a declaration of an agent to be admissible against
his principal, as an exception to the res inter alios acta rule,59 the declaration
must be: (1) within the scope of the agents authority; (2) made during the
existence of the agency; and (3) the agency is shown by evidence other than
by such declaration.60 If the agents declaration is on a matter outside the
scope of his agency, or is made after the agency had ceased, the agents
declaration cannot be admitted against his principal; the general rule of res
inter alios acta will apply instead;
Similarly, the foundation required by the Rules for the proper

presentation of evidence must be laid, lest the evidence be rejected. For
example, when the original of a document is unavailable, before secondary
evidence thereof is admitted, the proponent must establish: (1) the existence
or execution of the original document, and (2) the circumstances of the loss or
destruction of the original, or that the original cannot be produced in court.
A. Judicial Notice
1. Mandatory and Discretionary Judicial Notice
Not everything alleged in a partys pleading is required to be

proved. Certain matters may be so well known to the court that to
compel a party to prove it would be a waste of time and effort.
Under the Rules, it shall be mandatory for the court to 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 nationalities, 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 the three
departments of the Philippine government, the laws of nature, the
measure of time, and the geographical divisions.61 Courts may take
judicial notice of matters which are: (a) of public knowledge, (b)
capable of unquestionable demonstration, or (c) ought to be known to
judges because of their official functions.62
59
60
61
62
F-17
EVIDENCE
Our courts do not take judicial notice of foreign laws and

judgments; hence, like any other facts, both the divorce decree and the
national law of the alien must be alleged and proven according to our
law on evidence.
The power of judicial notice must be exercised with caution, and

every reasonable doubt upon the subject should be resolved in the
negative.63
To say that a court will take judicial notice of a fact is merely

another way of saying that the usual form of evidence will be
dispensed with if knowledge of the fact can be otherwise acquired.
This is because the court assumes that the matter is so notorious that
it will not be disputed. But judicial notice is not judicial knowledge.
The mere personal knowledge of the judge is not the judicial
knowledge of the court, and he is not authorized to make his individual
knowledge of a fact, not generally or professionally known, the basis of
his action.64
2. Hearing the Parties on Discretionary Judicial Notice
During the trial, when a court is uncertain whether it may, at its

discretion, take judicial notice of a certain fact or not, it may call the
parties to a hearing to give them a reasonable opportunity to present
information relevant to the propriety or impropriety of taking judicial
notice of that fact. Certainly, the so-called hearing is not for the
purpose of adducing evidence on that fact.
Similarly, even after the trial and before judgment or on appeal,

the court may hear the parties on the propriety of taking judicial notice
of a certain matter, if such matter is decisive of a material issue in the
case.65 This procedure will apprise the parties of the possibility that
the judge will or will not take judicial notice of a fact, or of his resolution
either way; it will thus eliminate the element of surprise and enable the
parties to act accordingly.
Thus, the Court has taken judicial notice of the practices of

banks and other financial institutions. Precisely, it has noted that it is
their uniform practice, before approving a loan, to investigate, examine
and assess would-be borrowers credit standing or real estate offered
as security for the loan applied for.66
63
Garcia v. Recio, G.R. No. 138322, October 2, 2001, 366 SCRA 437, 451-452.
64
Landbank v. Wycoco, G.R. No. 140160, January 13, 2004, 419 SCRA 67, 78.
65
66
Solidbank Corporation v. Mindanao Ferroalloy Corporation, G.R. No. 153535, July 28,
2005, 464 SCRA 409, 427.
F-18
EVIDENCE
3. Judicial Notice of Proceedings in another case
In the adjudication of a case pending before it, a court is not

authorized to take judicial notice of the contents of another case even if
said case has been tried or is pending in the same court, and
notwithstanding the fact that both cases may have been tried or are
actually pending before the same judge.67 However, in the absence of
objection, and as a matter of convenience to all parties, the court may
properly treat all or any part of the original record of the case filed in its
archives as read into the records of the case pending before it (1)
when, with the knowledge of the opposing party,68 reference is made
to it by name and number or in some other manner by which it is
sufficiently designated;69 or (2) when the original record of the other
case or any part of it is actually withdrawn from the archives, at the
courts discretion, upon the request or with the consent of the parties,
and admitted as part of the record of the pending case. 70
Parenthetically, a court will take judicial notice of its own acts and
records in the same case.71
When there is an objection, and the judge, therefore, cannot

take judicial notice of a testimony or deposition given in another case,
the interested party must present the witness to testify anew. However,
if the witness is already dead or unable to testify (due to a grave cause
almost amounting to death, as when the witness is old and has lost the
power of speech72), his testimony or deposition 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, pursuant to Rule 130,
Section 47.73 The pre-conditions set forth in this rule must be strictly
complied with; however, the failure to object to the evidence because it
does not conform to the statute is a waiver of the provision of law.74
67
Gener v. De Leon, G.R. No. 130730, October 19, 2001, 367 SCRA 631, 645.
68
Landbank of the Philippines v. Spouses Banal, et al., G.R. No. 143276, July 20, 2004, 434
SCRA 543, 552-553.
69
Gener v. De Leon, supra note 67 at 645; Calamba Steel Center v. Commisioner of Internal
Revenue, G.R. No. 151857, April 28, 2005, 457 SCRA 482, 496.
70
Tabuena v. Court of Appeals, supra note 37; People v. Mendoza, G.R. No. 96397,
November 21, 1991, 204 SCRA 288; Calamba Steel Center v. Commisioner of Internal
Revenue, supra note 69 at 495-496.
71
Clarion Printing House, Inc. v. NLRC, G.R. No. 148372, June 27, 2005, 461 SCRA 272,
293-294; Republic v. Court of Appeals, G.R. No. 119288, August 18, 1997, 277 SCRA 633.
72
Cariaga v. Court of Appeals, G.R. No. 143561, June 6, 2001, 358 SCRA 583, 591; Tan v.
CA, G.R. No. 22793, May 16, 1967, 20 SCRA 54.
73
74
Cariaga v. Court of Appeals, supra note 72 at 591; Manliclic, et al. v. Calaunan, G.R. No.
150157, January 25, 2007, 512 SCRA 642, 655-656.
F-19
EVIDENCE
If the testimony or deposition given in another proceeding is that

of a party in a case, the other party may simply offer in evidence the
record of that testimony or the deposition, without having to call the
declarant-party to testify thereon. Certainly, a party will offer the
opposing partys declaration as evidence only if it is prejudicial to the
latters interest. Such declaration of a party against his interest is an
extra-judicial admission which may be given in evidence against him.75
B. Admissions: Judicial and Extrajudicial
An admission is a partys acknowledgment of a fact which is

against his interest.
A party may make an admission in any of these ways:
1. In written pleadings, motions and other papers, and stipulations

filed in the case;
2. In open court, either by his testimony on the stand or by his

statement or that of his counsel; and
3. In his statement made outside the proceedings in the same case.
In the first two instances above-mentioned, the admissions made

are regarded as judicial admissions. A judicial admission does not require
proof and may be contradicted only by showing that it was made through
palpable mistake or that no such admission was made. 76 A judicial
admission need not be offered in evidence since it is not evidence. It is
superior to evidence and shall be considered by the court as established.
On the other hand, statements made by a party outside the

proceedings in the same case are extrajudicial admissions. Such
admissions may also be an act, declaration or omission made by a party
as to a relevant fact and may be given in evidence against him.77 This
type of admission is regarded as evidence and must be offered as such;
otherwise, the court will not consider it in deciding the case. If the
extrajudicial statement of a party is not against his interest but is in his
favor, it becomes a self-serving declaration which is inadmissible for being
hearsay, since it will be testified to by one who simply heard the statement
and has no personal knowledge of it. But it will not be incompetent
evidence, nor self-serving, if testified to by the party himself at the trial.78
75
76
77
78
Tuason v. Court of Appeals, G.R. Nos. 113779-80, February 23, 1995, 241 SCRA 695.
F-20
EVIDENCE
By the rules definition, not all admissions made by a party during a

judicial proceeding are judicial admissions. To constitute judicial
admission, the admission must be made in the same case in which it is
offered. If made in another case or in another court, the fact of such
admission must be proved as in the case of any other fact, although if
made in a judicial proceeding, it is entitled to greater weight.79 Thus, the
declaration of a defendant in a case that the plaintiff therein is his agent is
a judicial admission of the agency relationship between them if that fact is
against the defendants interest. However, that same admission may only
be an extrajudicial admission if considered in another case between the
same parties.
With more reason, an admission made in a document drafted for

purposes of filing as a pleading in the case but never filed, another
pleading being filed in its stead, is not a judicial admission, for the unfiled
document is not considered a pleading. Whether it will even be an
extrajudicial admission would depend upon whether the document was
signed by the client or only by his attorney. If signed only by the attorney,
it would not be admissible at all, since an attorney has authority to make
statements on behalf of his client only in open court or in a pleading
actually filed.80
In criminal cases, it should be noted that an admission or stipulation

made by the accused during the pre-trial cannot be used in evidence
against him, unless reduced to writing and signed by him and his
counsel.81 Conversely, stipulations freely and voluntarily made during pre-
trial are valid and binding and will not be set aside, unless for good cause
shown.82 A stipulation of facts in criminal cases is sanctioned by law. It is
done in further pursuit of the objective of expediting trial by dispensing
with the presentation of evidence on matters that the accused is willing to
admit. Further, stipulations are recognized as declarations constituting
judicial admissions; hence, binding upon the parties. By virtue of such
stipulation of facts, the prosecution has dispensed with the introduction of
additional evidence, and the defense has waived the right to contest or
dispute the veracity of the statements contained in the exhibits.83 It is true
that in criminal cases, omission of the signatures of the accused and
counsel renders the stipulation of facts inadmissible, but conviction of
accused is proper if the prosecution evidence is able to establish the
elements of the crime independently of the unsigned stipulation of facts.84
79
Republic Glass Corporation v. Qua, G.R. No. 144413, July 30, 2004, 435 SCRA 480, 492.
80
Jackson v. Schine Lexington Corporation, 305 Ky. 823, 205 S.W. 2d 1013.
81
RULES OF COURT, Rule 118, Sec. 4; Fule v. Court of Appeals, G.R. No. 79094, June 22,
1988, 162 SCRA 446.
82
Bayas v. Sandiganbayan, G.R. No. 143689-91, November 12, 2002, 391 SCRA 415, 423.
83
People v. Razul, et al., G.R. No. 146470, November 22, 2002, 392 SCRA 553, 578.
84
People v. Bandang, et al., G.R. No. 151314, June 3, 2004, 430 SCRA 570, 586.
F-21
EVIDENCE
But this rule does not apply to admissions made in the course of the trial.
Thus, an admission made by an accused or his counsel during the trial
may be used against the accused, although not signed by either of them. 85
Admissions in a pleading which had been withdrawn or superseded

by an amended pleading, although filed in the same case, are reduced to
the status of extrajudicial admissions and, therefore, must be proved by
the party who relies thereon86 by formally offering in evidence the original
pleading containing such extrajudicial admission.87 Consistently, the 1997
Rules of Civil Procedure provides that An amended pleading supersedes
the pleading that it amends. However, admissions in superseded
pleadings may be received in evidence against the pleader xxx.88
Since, generally, a judicial admission does not require proof and

cannot be contradicted, any attempt made by a party to still prove it may
be objected to as immaterial, i.e., not in issue anymore; and any attempt
to adduce evidence in contradiction of that admission may also be
objected to. In either case, the judge may himself block such attempts as
improper departures from the issues of the case. Unless, of course, it can
be shown that the admission was made through palpable mistake or that
no such admission was made at all.89
C. Best Evidence Rule
The Best Evidence Rule is applicable only to documents.

Documents as evidence consist of writings or any material containing
letters, words, numbers, figures, symbols or other modes of written
expressions offered as proof of their contents. 90 When the subject of
inquiry is the contents of a document, no evidence shall be admissible
other than the original writing itself.91 Production of the original may be
dispensed with, in the trial courts discretion, whenever on the case in
hand the opponent does not bona fide dispute the contents of the
document and no other useful purpose will be served by requiring
production.92
85
People v. Hernandez, G.R. No. 108028, July 30, 1996, 260 SCRA 25; See also Silot, Jr. v.
dela Rosa, G.R. No. 159240, February 4, 2008, 543 SCRA 533, 538-539.
86
Ching v. Court of Appeals, G.R. No. 110844, April 27, 2000, 331 SCRA 16, 33-34; Bastida
v. Menzi & Co., 58 Phil. 188 [1933].
87
Director of Lands v. Court of Appeals, G.R. No. 31408, April 22, 1991, 196 SCRA 94;
Torres v. Court of Appeals, G.R. No. 37420, July 31, 1984, 131 SCRA 24; Javellana v. D.O.
Plaza Enterprises, Inc., G.R. No. 28297, March 30, 1970, 32 SCRA 261; Ching v. Court of
Appeals, supra note 86 at 34.
88
89
Id., Rule 129.
90
Id., Rule 130, Sec. 2.
91
Id., Rule 130.
92
Citibank, N.A., et al., v. Investors Finance Corporation, G.R. No. 156132, October 16,
2006, 504 SCRA 378, 459.
F-22
EVIDENCE
Not every writing is considered a document for purposes of the

best evidence rule. If a writing is offered, not to prove its contents, but to
prove some other fact, e.g., that the writing exists, or that it is done on
sheepskin, or the size of the paper it is written on, it is, for purposes of
evidence, only object evidence. To determine the admissibility of object
evidence, the best evidence rule does not apply. Hence, the original
writing need not be presented. The existence or condition of that writing
may be proved at once by any other evidence, like oral testimony.93
Closely related to the best evidence rule is the rule that a document
or writing which is merely collateral to the issue involved in the case on
trial need not be produced. This is the collateral facts rule. Thus, where
the purpose of presenting a document is not to prove its contents, but
merely to give coherence to, or to make intelligible, the testimony of a
witness regarding a fact contemporaneous to the writing, the original of
the document need not be presented. In this case, the contents of the
document are not sought to be proven, but are simply incidental to the fact
being testified to. Thus, the best evidence rule cannot apply.94
The original of a document is one the contents of which are the

subject of inquiry. 95 Even a mere photocopy of a document may be
treated as an original, if the inquiry is regarding its contents.
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. Thus, the first copy and four (4) carbon copies of a contract, all
of which are identical, are all considered originals. Each of them may be
offered as proof of their contents. But if a party has lost his original
document, he must account not only for the unavailability of his copy but
also for the loss, destruction or unavailability of the rest of the original
copies before secondary evidence can be given of any one. 96 A
photocopy may not be used without accounting for the other originals.97
Secondary evidence may also be resorted to, as though the

document had been lost, when the adverse party who has custody of the
original refuses, despite reasonable notice, to produce the document. 98
93
People v. Tandoy, G.R. No. 80505, December 4, 1990, 192 SCRA 28.
94
Citibank, et al. v. Sabeniano, G.R. No. 156132, October 16, 2006, 504 SCRA 378, 459-460;
Bank of the Philippine Islands v. Casa Montessori Internationale, G.R. No. 149454, May 28,
2004, 430 SCRA 261, 281-282; People v. Bago, G.R. No. 122290, April 6, 2000, 330 SCRA
115, 128-129; Air France v. Carrascoso, G.R. No. 21438, September 28, 1966, 18 SCRA 155.
95
96
Ebreo et al. v. Ebreo, G.R. No. 160065, February 28, 2006, 483 SCRA 583, 596; Santos v.
Santos, G.R. No. 139524, October 12, 2000, 342 SCRA 753, 764.
97
Citibank Mastercard v. Teodoro, G.R. No. 150905, September 23, 2003, 411 SCRA 577,
585.
98
F-23
EVIDENCE
To warrant the admissibility of secondary evidence when the original of a

writing is in the custody or control of the adverse party, Rule 130, Section
6 requires that the adverse party be given reasonable notice, that he fails
or refuses to produce the same in court, and that the offeror offers
satisfactory proof of its existence.
The mere fact that the original of the writing is in the custody or
control of the party against whom it is offered does not warrant the
admission of secondary evidence. The offeror must prove that he has
done all in his power to secure the best evidence by giving notice to the
said party to produce the document. The notice may be in the form of a
motion for the production of the original, or made in open court in the
presence of the adverse party, or via a subpoena duces tecum, provided
that the party in custody of the original has sufficient time to produce the
same. When such party has the original of the writing and does not
voluntarily offer to produce it or refuses to produce it, secondary evidence
may be admitted.99 In this case, such adverse party should not later be
allowed to introduce the original for the purpose of contradicting the
secondary evidence presented.100
When the proper foundation for the reception of secondary

evidence has been laid, the best evidence rule insists on a preference in
the type of secondary evidence that will be presented. Thus, Rule 130,
Section 5 provides:
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.
Hence, before a party may offer the testimony of witnesses to prove

the contents of a lost original, he must first show or prove that no copy of
the document exists and, in addition, that there exists no authentic
document reciting the contents of the unavailable original. This second
layer of foundations may, of course, be established by oral testimony, but
it must be established.
99
Edsa Shangri-la Hotel and Resort, Inc., et al v. BF Corporation, G.R. No. 145842, June 27,
2008, 556 SCRA 25, 40.
100
Wigmore on Evidence, 1210.
F-24
EVIDENCE
D. Parol Evidence Rule
The Parol Evidence Rule applies only to contractual documents. 101

Parol Evidence Rule, which provides that when the terms of a written
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,102 applies to written agreements and has no
application to a judgment of a court.103 It does not apply where at least
one party to the suit is not a party, nor a privy to a party, to the written
instrument and does not base his claim, nor assert a right arising from the
instrument or established therein. Thus, a total stranger to the writing is
not bound by its terms and is allowed to introduce extrinsic or parol
evidence against the efficacy of the writing.104
In order that parol evidence may be admissible, the exceptional

situation, including the fact of a subsequent agreement, must be put in
issue in the pleading. Otherwise, no parol evidence can be admissible.
When the defendant invokes such exceptional situations in his answer,
such facts are sufficiently put in issue as to allow the presentation of parol
evidence. However, if, when presented, the parol evidence is not objected
to, such objection is deemed waived.
E. Admissibility of Extrajudicial Confessions
The confession of an accused acknowledging his guilt of the

offense charged, or of any offense necessarily included therein, may be
given in evidence against him.105 Note that if the confession is judicially
given, either by way of a plea of guilty upon arraignment or made in the
course of the trial, it need not be offered in evidence since it is a judicial
admission.106
An extrajudicial confession may be given either before or during the

custodial investigation stage. A person is placed under custodial
investigation when after a crime has been committed, the authorities
investigation ceases to be a mere general inquiry into the circumstances
and authorship of the crime and begins to focus on the individual as a
101
Cruz v. Court of Appeals, G.R. No. 79962, December 10, 1990, 192 SCRA 209.
102
103
Mactan-Cebu International Airport Authority v. Court of Appeals, G.R. No. 139495,
November 27, 2000, 346 SCRA 126, 136.
104
Lechugas v. Court of Appeals, G.R. Nos. 39972 and 40300, August 6, 1986, 143 SCRA
335.
105
106
F-25
EVIDENCE
suspect.107 Under Republic Act No. 7438,108 custodial investigation shall

include the practice of issuing an invitation to a person who is
investigated in connection with an offense he is suspected to have
committed.
When under custodial investigation, a person shall have the

constitutional right to be informed of his right to remain silent and to have
competent and independent counsel, preferably of his own choice. If the
person cannot afford the services of a counsel, he must be provided with
one. These rights cannot be waived, except in writing and in the presence
of counsel.109 The competent and independent counsel so engaged must
be present from beginning to end.110 It must be noted that neither a lawyer
NBI agent nor the City Legal Officer can be considered an independent
counsel for this purpose.
If the person under custodial investigation has not been informed of

any of the above-mentioned rights, any confession or declaration given by
him during said investigation shall be inadmissible. 111 To be valid, the
information to be given to the accused regarding his rights must be more
than a perfunctory recitation of such rights; it must be made in practical
terms, in a language or dialect he understands and in a manner he
comprehends, the degree of explanation varying according to the persons
level of education and intelligence and other relevant personal
circumstances of the person undergoing investigation.112
The presumption of regularity in the performance of official duty does

not apply to in-custody confessions. And while jurisprudence provides that
extrajudicial confessions are presumed to be voluntary, the condition for this
presumption is that the prosecution is able to show that the constitutional
requirements safeguarding an accuseds rights during custodial investigation
have been strictly complied with, especially when the extrajudicial confession
has been denounced.113
107
Miranda v. Arizona, 384 U.S. 436; Escobedo v. Illinois, 378 U.S. 478; See also People v.
Morial, et al., G.R. No. 129295, August 15, 2001, 363 SCRA 96, 110.
108
An Act Defining Certain Rights Of Persons Arrested, Detained, Or Under Custodial
Investigation As Well As The Duties Of The Arresting, Detaining, and Investigating Officers
And Providing Penalties For Violations Thereof.
109
CONSTITUTION, Art. III, Sec. 12.
110
People v. Morial, et al., supra note 107 at 113-114; People v. Rapeza, G.R. No. 169431,
April 4, 2007, 520 SCRA 596, 624.
111
People v. Samus, G.R. Nos. 135957-58, September 17, 2002, 389 SCRA 93, 105; People
v. Morial, et al., supra note 107 at 116; People v. Figueroa, et al., G.R. No. 134056, July 6,
2000, 335 SCRA 249, 263; People v. Jimenez, G.R. No. 40677, May 31, 1976, 71 SCRA 186.
112
People v. Camalog, G.R. No. 77116, January 31, 1989, 169 SCRA 816; People v. Rapeza,
supra note 110 at 619.
113
People v. Sayaboc, G.R. No. 147201, January 15, 2004, 419 SCRA 659, 668; Belonghilot
v. RTC of Zamboanga del Norte, G.R. No. 128512, April 30, 2003, 402 SCRA 221, 238.
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EVIDENCE
No custodial investigation shall be conducted unless it be in the

presence of counsel engaged by the person arrested, or by any person in his
behalf, or appointed by the court, upon petition either by the detainee himself
or by anyone in his behalf. The right to counsel may be waived, but the
waiver shall not be valid unless made with the assistance of counsel. Any
statement obtained in violation of this procedure, whether inculpatory or
exculpatory, in whole or in part, shall be inadmissible in evidence.114 But note
the ruling in People v. Samus,115 that even if the uncounselled admission per
se may be inadmissible, the failure of the defense to object to its presentation
during trial is deemed a waiver of the objection to its admissibility.
In People v. Policarpio,116 the accused who was arrested in a buy-bust

operation refused to give a statement after having been informed of his
Constitutional rights; but he was made to acknowledge in writing that six
plastic bags of marijuana leaves were confiscated from him, and he was also
made to sign a receipt for P20.00 as the purchase price of the marijuana. The
Supreme Court ruled that said receipts were in effect extrajudicial confessions
given during custodial investigation and were, therefore, inadmissible for
having been given without the assistance of counsel.
An extrajudicial confession made by an accused shall not be sufficient

for conviction, unless corroborated by evidence of corpus delicti.117 Thus, in
People v. Barlis,118 the accused who validly gave a statement during custodial
investigation confessing to the commission of homicide and robbery was
convicted of homicide only and acquitted of the robbery charge in the
absence of evidence establishing the corpus delicti of robbery.
The rights guaranteed a person under Art. III, Sec. 12 of the

Constitution are not available when he is not under custodial investigation.
Thus, a statement or confession voluntarily given by an employee during an
administrative investigation that he had malversed his employers funds is
admissible, although without a prior information of said rights and without the
assistance of counsel.119
114
People v. Janson, G.R. No. 125983, April 4, 2003, 400 SCRA 584, 599; People v. Salonga,
G.R. No. 131131, June 21, 2001, 359 SCRA 310, 320; People v. Sevilla, G.R. No. 124077,
September 5, 2000, 339 SCRA 625, 651; People v. Galit, G.R. No. 51770, March 20, 1985,
135 SCRA 465; Morales v. Ponce-Enrile, G.R. No. 61016, April 20, 1983, 121 SCRA 538;
115
People v. Samus, G.R. Nos. 135957-58, September 17, 2002, 389 SCRA 93, 108.
116
G.R. No. 69844, February 23, 1988, 158 SCRA 85; People v. Go, G.R. No. 144639,
September 12, 2003, 411 SCRA 81, 100.
117
118
G.R. No. 101003, March 24, 1994, 231 SCRA 426.
119
Astudillo v. People, G.R. No. 159734, November 30, 2006, 509 SCRA 302, 320-321;
People v. Salonga, supra note 114 at 320; People v. Ayson, G.R. No. 85215, July 7, 1989,
175 SCRA 216.
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EVIDENCE
To fall within the ambit of Section 12, quoted above, there must be an
arrest or a deprivation of freedom, with questions propounded on him by the
police authorities for the purpose of eliciting admissions, confessions, or any
information. 120 The said constitutional provision does not apply to
spontaneous statements made in a voluntary manner, 121 whereby an
individual orally admits to authorship of a crime.122 In fact, the exclusionary
rule under 12, paragraph (2) of the Bill of Rights, "applies only to admissions
made in a criminal investigation but not to those made in an administrative
investigation."123
Similarly competent is the admission of adulterous conduct made by a

woman to her husband when the latter confronted her with incriminatory
evidence in their residence.124 Likewise, admissions made during preliminary
investigation, even if made without counsel, are admissible. 125 Also
admissible are admissions made to a radio announcer who was not part of
the investigation, or even to a mayor approached as a personal confidante,
and not in his official capacity.126
As regards competency, specifically, the exclusionary rule as provided

in the Bill of Rights of the Constitution does not apply to warrantless search
by private individuals. The Constitutional proscription enshrined in the Bill of
Rights does not concern itself with the relation between a private individual
and another individual. It governs the relationship between the individual and
the State and its agents.127 The Supreme Court held that there is no merit in
the contention of the accused-appellant that the search and seizure
performed by the vessel security personnel should be considered as one
120
Bank of the Philippine Islands v. Casa Montessori Internationale, et al., G.R. No. 149454,
May 28, 2004 430 SCRA 261, 277; People v. Arondain, 418 Phil. 354, 367368 [2001]; See
also People v. Amestuzo, 413 Phil. 500, 508 [2001]; People v. Valdez, G.R. No. 129296,
September 25, 2000, 341 SCRA 25, 41-42; People v. Labtan, 377 Phil. 967, 982, 984 [1999];
People v. De la Cruz, 344 Phil. 653, 660661 [1997]; People v. Del Rosario, 365 Phil. 292,
310 [1999]; People v. Ayson, G.R. No. 85215, July 7, 1989, 175 SCRA 216, 231; and
Gamboa v. Cruz, G.R. No. 56291, June 27, 1988, 162 SCRA 642, 648.
121
Bank of the Philippine Islands v. Casa Montessori Internationale, et al., supra note 120 at
277; People v. Dano, G.R. No. 117690, September 1, 2000, 339 SCRA 515, 528; See also
Aballe v. People, G.R. No. 64086, March 15, 1990, 183 SCRA 196, 205; People v. Dy, G.R.
No. 74517, February 23, 1988, 158 SCRA 111, 123124; People v. Taylaran, G.R. No.
49149, 195 Phil. 226, 233234 [1981].
122
Bank of the Philippine Islands v. Casa Montessori Internationale, et al., supra note 120 at
277.
123
Remolona v. CSC, 414 Phil. 590, 599 [2001]; See also Sebastian, Sr. v. Garchitorena, 397
Phil. 519, 525 (2000); Manuel v. N.C. Construction Supply, 346 Phil. 1014, 1024 [1997];
Lumiqued v. Exevea, G.R. No. 117565, November 18, 1997, 807, 822823.
124
Arroyo v. Court of Appeals, G.R. No. 96602, November 19, 1991, 203 SCRA 750.
125
Ladiana v. People, G.R. No. 144293, December 4, 2002, 393 SCRA 419, 431-432.
126
Astudillo v. People, G.R. No. 159734, November 30, 2006, 509 SCRA 302, 321; People v.
Guillermo, G.R. No. 147786, January 20, 2004, 420 SCRA 326, 340-342.
127
Tolentino, et al v. Mendoza, et al., A.C. No. 5151, October 19, 2004, 440 SCRA 519, 531,
citing People v. Hipol, G.R. No. 140549, July 22, 2003, 407 SCRA 179, 185.
F-28
EVIDENCE
conducted by the police authorities for like the latter, the former are armed
and tasked to maintain peace and order. The vessel security officer, in the
case at bar, is a private employee and does not discharge any governmental
function.128
F. Examination of Witnesses
1. Generally, the testimony of a witness is elicited through questions

propounded by the examining counsel in open court. Unless the witness is
incapacitated to speak, or the question calls for a different mode of answer,
the answers of the witness shall be given orally. 129 The main purpose of
requiring a witness to appear and testify orally in open court is to secure to
the adverse party the opportunity to cross-examine the witness. Another
reason for such rule is to enable the judge to observe the countenance and
demeanor of the witness while testifying, an important factor in determining
the credibility of a witness. Therefore, it would be impermissible and would be
a grave abuse of discretion on the part of the trial judge to accept the affidavit
of a witness in lieu of the latters direct testimony subject to cross-
examination.130 This rule was applied to the use of depositions in San Luis v.
Rojas,131 where the Supreme Court held that any deposition offered to prove
the facts therein set out during a trial or hearing, in lieu of the actual oral
testimony of the deponent in open court, may be opposed and excluded on
the ground that it is hearsay: the party against whom it is offered has no
opportunity to cross-examine, although cross-examination was afforded
during the taking of the deposition, for normally, the evidence is actually
presented against him during the trial or hearing. However, depositions may
be used without the deponent being actually called to the witness stand by
the proponent, under certain conditions and for certain limited purposes.
These exceptional situations are governed by Rule 23, Section 4 of the Rules
of Court.
In civil cases, however, the judge, at his discretion, can order the
parties to use the affidavits of witnesses as direct testimonies, subject to the
right to object to inadmissible portions thereof and to the right of cross-
examination by the other party. The affidavits shall be based on personal
knowledge, shall set forth facts as would be admissible in evidence, and shall
show affirmatively that the affiant is competent to testify to the matters stated
therein. The affidavits shall be in question and answer form, and shall comply
with the rules on admissibility of evidence.132
128
People v. Bongcarawan, G.R. No. 143944, July 11, 2002, 384 SCRA 525, 532.
129
130
People v. Estenzo, G.R. No. 41166, August 25, 1976, 72 SCRA 428; See also People v.
Go, et al., G.R. Nos. 130714 & 139634, December 27, 2002, 394 SCRA 350, 363.
131
G.R. No. 159127, March 3, 2008, 547 SCRA 345, 360.
132
A.M. No. 03-01-09-SC.
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EVIDENCE
In criminal cases, however, the use of sworn statements of witnesses

in lieu of direct examination in open court is proscribed.133
The rule that witnesses be examined in open court is relaxed under

the 1991 Revised Rule on Summary Procedure (RRSP) where in criminal
cases covered by said Rule, the affidavits and counter-affidavits of the
parties witnesses constitute their direct testimonies subject, however, to
cross-examination, re-direct or re-cross examination.134 And in civil actions
covered by the RRSP, the parties shall submit the affidavit of their witnesses
and other evidence on the factual issues defined in the preliminary
conference order prepared by the judge after the termination of said
conference, together with their position papers setting forth the law and the
facts relied upon by them.135
Another exception is found in the trial of agrarian cases where the

parties submit affidavits of their witnesses subject to cross-examination.136
But note also that evidence in criminal cases is not limited to the
declarations made in open court; it includes all documents, affidavits or sworn
statements of the witnesses, and other supporting evidence. It comprehends
something more than just the mere testimony of a witness. Thus, when a
sworn statement has been formally offered as evidence, it forms an integral
part of the evidence which should not be ignored for it complements and
completes the testimony on the witness stand.137 Thus, in a rape case, while
the complainant failed to categorically declare in her testimony that the
accused employed force, threat or intimidation against her, the Supreme
Court still appreciated this circumstance as it was included in the
complainants sworn statement.138
The Guidelines on the Conduct of Pre-Trial and Use of Deposition-

Discovery Measures139 provides:
a. One-day Examination of Witness Rule. A witness has to be

fully examined in one (1) day only, shall be strictly adhered to
subject to the courts discretion during trial on whether or not
to extend the direct and/or cross examination for justifiable
reasons.
133
People v. Go, et al., supra note 130 at 361-362.
134
RULE ON SUMMARY PROCEDURE, Sec. 15.
135
RULE ON SUMMARY PROCEDURE, Sec. 9.
136
Presidential Decree No. 946 [1976], Sec. 16.
137
People v. Servano, G.R. Nos. 143002-03, July 17, 2003, 406 SCRA 508, 522.
138
Garces v. People, G.R. No. 173858, July 17, 2007, 527 SCRA 827, 838-839.
139
A.M. No. 03-1-09-SC.
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EVIDENCE
b. Most Important Witness Rule. Determine the most

important witnesses to be heard and limit the number of
witnesses. The facts to be proven by each witness and the
approximate number of hours per witness shall be fixed.
2. One question often asked is whether a witness may be allowed to

testify by narration. While the general rule is that material and relevant
facts are elicited from a witness by questions put to him, it still rests within
the sound discretion of the trial judge to determine whether a witness will
be required to testify by question and answer, or will be permitted to testify
in narrative form.140
There is no legal principle which prevents a witness from

giving his testimony in narrative form if he is requested to do so
by counsel. A witness may be allowed to testify by narration if it
would be the best way of getting at what he knew or could state
concerning the matter at issue. It would expedite the trial and
would perhaps furnish the court a clearer understanding of the
matters related as they occurred. Moreover, narrative testimony
may be allowed if material parts of his evidence cannot be
easily obtained through piecemeal testimonies. But if in giving
such testimony, the witness states matters irrelevant or
immaterial or incompetent, it is the right and duty of counsel
objecting to such testimony to interpose and arrest the narration
by calling the attention of the court particularly to the
objectionable matter and, by a motion to strike it out, obtain a
ruling of the court excluding such testimony from the case. 141
While a witness may be permitted in the discretion of the court
to narrate his knowledge of material facts bearing upon the case
without specifically being interrogated in detail, it is also within
the discretion of the court to prohibit a witness from volunteering
unsought information in connection with the case.142
3. Some jurisprudential rules regarding uncompleted testimonies:
3.1. Oral testimony may be taken into account only when it is complete,
that is, if the witness has been wholly cross-examined by the adverse
party or the right to cross-examine is lost wholly or in part thru the fault
of the adverse party. 143 When a witness had testified on direct
examination, but was not cross-examined because he dies or becomes
140
98 C.J.S. Sec. 325, p. 26.
141
Id.
142
People v. Calixtro, G.R. No. 92355, January 24, 1991, 193 SCRA 303.
143
People v. Givera, G.R. No. 132159, Jan. 18, 2001, 349 SCRA 513, 535.
F-31
EVIDENCE
incapacitated to testify after numerous postponements of his cross-

examination attributable to the cross-examining party, whereas the
witness had all the time been available for cross-examination, his
direct testimony shall be allowed to remain in the record and cannot be
ordered stricken off. The cross-examiner is deemed to have waived his
right to cross-examine.144
3.2. On the contrary, when cross-examination is not and cannot be

done or completed due to causes attributable to the party offering the
witness, the uncompleted testimony is thereby rendered
incompetent.145
3.3. The direct testimony of a witness who dies before conclusion of

the cross-examination can be stricken only insofar as to the part not
covered by the cross-examination, and absence of a witness is not
enough to warrant striking his testimony for failure to appear for further
cross-examination where the witness has already been sufficiently
cross-examined, and the matter on which further cross-examination is
sought is not in controversy.146
4. A judge may intervene in the trial of a case to promote expedition and

avoid unnecessary waste of time or to clear up some ambiguity. A judge is
not a mere referee like that of a boxing bout. He should have as much
interest as a counsel in the orderly and expeditious presentation of
evidence, calling the attention of counsel to points at issue that are
overlooked, directing them to ask questions that would elicit the facts on
the issues involved, clarifying ambiguous remarks. He may examine or
cross-examine a witness.147 He may propound clarificatory questions to
test the credibility of the witness and to extract the truth. He may seek to
draw out relevant and material testimony though the testimony may tend
to support or rebut the position taken by one or the other party. The
number of times a judge intervenes in the examination of a witness is not
necessarily an indication of bias. It cannot be taken against a judge if his
clarifying questions happen to reveal certain truths which tend to spoil the
theory of one party.148
144
Dela Paz, Jr., v. Intermediate Appellate Court, G.R. No. 71537, September 17, 1987, 154
SCRA 65; People v. Monje, G.R. No. 146689, September 27, 2002, 390 SCRA 160, 171;
People v. Givera, supra at 535.
145
Ortigas, Jr. v. Lufthansa German Airlines, G.R. No. 28773, June 30, 1975, 64 SCRA 610;
People v. Monje, supra at 171.
146
People v. Seeris, G.R. No. 48883, August 6, 1980, 99 SCRA 92; People v. Monje, supra
note 144 at 171.
147
People v. Zheng Bai Hui, G.R. No. 127580, August 22, 2000, 338 SCRA 420, 460.
148
People v. De Leon, G.R. No. 144052, March 6, 2002, 378 SCRA 495, 512-514; Barbers,
et al. v. Laquio, A.M. No. RTJ-00-1568, February 15, 2001, 351 SCRA 606, 626; People v.
Hatton, G.R. No. 85043, June 16, 1992, 210 SCRA 1.
F-32
EVIDENCE
However, a trial judge should not participate in the examination of

witnesses as to create the impression that he is allied with the prosecution.
We doubt not that the sole motive of the learned judge was to
ascertain the truth of the transaction, but it is never proper for a judge to
discharge the duties of a prosecuting attorney. However anxious a judge
may be for the enforcement of the law, he should always remember that
he is as much judge in behalf of the defendant accused of crime, and
whose liberty is in jeopardy, as he is judge in behalf of the state, for the
purpose of safeguarding the interests of society.
Ordinarily it is not good practice for the presiding judge himself to

examine witnesses at length. The circumstances may be such in a given
case as to justify the court in so doing xxx. This court, however, has more
than once said that the examination of witnesses is the more appropriate
function of counsel, and the instances are rare and the conditions
exceptional which will justify the presiding judge in conducting an
extensive examination. It is always embarrassing for counsel to object to
what he may deem improper questions by the court. Then, in conducting a
lengthy examination, it would be almost impossible for the judge to
preserve a judicial attitude. While he is not a mere figurehead or umpire in
a trial, and it is his duty to see that justice is done, he will usually not find it
necessary to conduct such examinations. The extent to which this shall be
done must largely be a matter of discretion, to be determined by the
circumstances of each particular case, but in so doing he must not forget
the function of the judge and assume that of an advocate xxx.
While it is true that the manner in which a witness shall be examined

is largely in the discretion of the trial judge, it must be understood that we
have not adopted in this country the practice of making the presiding judge
the chief inquisitor. It is better to observe our time-honored custom of
orderly judicial procedure, even at the expense of occasional delays xxx.
The judge is an important figure in the trial of a cause, and while he has
the right, and it is often his duty, to question witnesses to the end that
justice shall prevail, we can conceive of no other reason, for him to take
the trial of the cause out of the hands of counsel.149
5. The court may stop the introduction of further testimony upon any
particular point when the evidence upon it is already so full that more
witnesses to the same point cannot be reasonably expected to be
additionally persuasive. But this power should be exercised with
caution.150
149
Tabuena vs. Sandiganbayan et. al., G.R. Nos. 103501-03, February 17, 1997, 268 SCRA
332, 401-402.
150
F-33
EVIDENCE
G. Authentication and Proof of Documents
For the purpose of their presentation in evidence, documents are

either public or private.151 Public documents need not be authenticated;
private documents have to be authenticated to be admissible in evidence.
There are only three types of public documents, viz.: (1) the written
official acts or records of official acts of the sovereign authority, official
bodies and tribunals and public officers, whether of the Philippines or of a
foreign country, e.g., transfer certificate of title, the Official Gazette, entries
in the book of entries of judgments; (2) documents acknowledged before a
notary public, except last wills and testaments; (3) public records, kept in
the Philippines, of private documents required by law to be entered therein,
e.g., certified true copies of birth certificates or of death certificates issued
by the local civil registrar.152
All other writings are private and thus ought to be authenticated.

Their due execution and genuineness must be proved, either (1) by
anyone who saw the document executed or written; or (2) by evidence of
the genuineness of the signature or handwriting of the maker.153 Note that
the opinion of an ordinary witness regarding the handwriting of a person is
admissible under Rule 130, Sec. 50, as an exception to the opinion rule
provided the witness is shown to have sufficient familiarity with the
handwriting.
The last paragraph of Rule 132, Sec. 20 states that Any other
private document need only be identified as that which it is claimed to be.
This provision should be taken in relation to the first paragraph, which
reads: Before any private document offered as authentic is received in
evidence, its due execution and genuineness must be proved. If it is
offered as a genuine writing, it must be proved to be genuine. If it is
offered as a forgery, it must be proved to be a forgery. If a private writing
is offered not as an authentic document, it need only be identified as that
which the offeror claims it to be. Thus, if an anonymous letter a party has
received is relevant to the issues in a case, he need not authenticate it
since he cannot possibly do that anyway. He only has to identify it as the
anonymous letter he had received. The authenticity of the document is
immaterial for he is not offering it as authentic. An ancient document,
although private in nature, needs no authentication either, provided it
appears to be more than thirty years old, is produced from a custody in
which it would naturally be found if genuine, and is unblemished by any
151
Id., Rule 132, Sec. 19
152
Id.
153
Id., Sec. 20.
F-34
EVIDENCE
alteration or circumstances of suspicion. 154 Of course, also, if the

authenticity of a private document is judicially admitted by the other, a
party need not authenticate it.
Not all public documents have the same probative value.

Documents consisting of entries in public records made in the
performance of a duty by a public officer are prima facie evidence of the
facts therein stated. 155 Official entries are admissible in evidence
regardless of whether the officer or person who made them was presented
and testified in court, since these entries are considered prima facie
evidence of the facts stated therein.156 Hence, the entries made by the
clerk of court in the book of entries of judgments are prima facie evidence
of the entered facts; the clerk of court need not be called to attest to the
truth thereof; Such evidence, of course, are only prima facie, i.e., good
until rebutted by reliable contradictory evidence.
When entries in the Certificate of Live Birth recorded in the Local

Civil Registry vary from those appearing in the copy transmitted to the
Civil Registry General, pursuant to the Civil Registry Law, the variance
has to be clarified in more persuasive and rational manner.157
But All other public documents are evidence, even against a third
person, of the fact which gave rise to their execution and of the date of the
latter.158 Thus, a certified true copy of a death certificate issued by the
local civil registrar although a public document is proof only of the fact
which gave rise to its execution, i.e., the fact of death and the date of that
fact. The death certificate is not evidence of the cause of death, which
ought to be proved by competent evidence.
It cannot be overemphasized that the required certification of an

officer in the foreign service, under Rule 132, Sec. 24 refers only to the
documents enumerated in Section 19 (a), to wit: written official acts or
records of the official acts of the sovereign authority, official bodies and
tribunals, and public officers of the Philippines or of a foreign country. It
does not apply to documents acknowledged before a notary public
abroad.159 The notarization of a document does not guarantee its validity
because it is not the function of a notary public to validate an instrument
154
Id., Sec. 22.
155
Id., Sec. 23.
156
Fullero v. People, G.R. No. 170583, September 12, 2007, 533 SCRA 97, 119.
157
In Re: Intestate of the Late Juan Jhonny Locsin, Sr., et al., v. Locsin, Jr., G.R. No.
146737, December 10, 2001, 371 SCRA 711, 721.
158
Id.
159
Heirs of Deceased Spouses Arcilla, et al., v. Teodoro, G.R. No. 162886, August 11, 2008,
561 SCRA 545, 562.
F-35
EVIDENCE
that was never intended by the parties to have any binding legal effect on
them.160
H. Tender of Excluded Evidence
Evidence formally offered by a party may be admitted or excluded

by the court. If a partys offered documentary or object evidence is
excluded, he may move or request that it be attached to form part of the
record of the case. If the excluded evidence is oral, he may state for the
record the name and other personal circumstances of the witness and the
substance of the proposed testimony.161 If a question asked of a witness
by the counsel who presented him is objected to and the objection is
sustained, counsel may manifest for the record what the witness would
have answered if the witness had been allowed to do so. As regards
documentary or object evidence, the evidence must have been formally
offered before the court. And before formal offer of evidence is made, the
evidence must have been identified and presented before the court. 162
These procedures are known as offer of proof or tender of excluded
evidence and are made for purposes of appeal.163 If an adverse judgment
is eventually rendered against the offeror, he may, in his appeal, assign as
error the rejection of the excluded evidence. The appellate court will better
understand and appreciate the assignment of error if the evidence
involved is included in the record of the case. And since the offer of proof
is for appellate purposes, the same cannot be denied by the trial court.
V. SPECIAL RULES ON EVIDENCE
A. Rule on Examination of a Child Witness164
SECTION 1. Applicability of the Rule. - Unless otherwise

provided, this Rule shall govern the examination of child
witnesses who are victims of crime, accused of a crime, and
witnesses to crime. It shall apply in all criminal proceedings
and non-criminal proceedings involving child witnesses.
160
Ramos v. Heirs of Ramos Sr., G.R. No. 140848, April 25, 2002, 381 SCRA 594, 605.
161
Yu v. Hon. Court of Appeals, et al., G.R. No. 154115, November 29, 2005, 476 SCRA 443,
451.
162
Id.
163
RULES OF COURT, Rule 130, Sec. 40; Cruz-Arevalo v. Layosa, A.M. No. RTJ-06-2005, July
14, 2006, 495 SCRA 9, 13.
164
A.M. No. 00-4-07-SC, effective December 15, 2000; See also A.M. No. 02-1-18-SC, Rule
on Juveniles in Conflict with the Law, effective February 28, 2002 and A.M. No. 04-10-11-SC,
Rule on Violence against Women and their Children, effective November 15, 2004 for cross
references to the Rule on the Examination of a Child Witness.
F-36
EVIDENCE
SECTION 2. Objectives. - The objectives of this Rule are to

create and maintain an environment that will allow children to
give reliable and complete evidence, minimize trauma to
children, encourage children to testify in legal proceedings, and
facilitate the ascertainment of truth.
SECTION 3. Construction of the Rule. - This Rule shall be

liberally construed to uphold the best interests of the child and
to promote maximum accommodation of child witnesses
without prejudice to the constitutional rights of the accused.
SECTION 4. Definitions.
(a) A "child witness" is any person who at the time of

giving testimony is below the age of eighteen (18) years.
In child abuse cases, a child includes one over eighteen
(18) years but is found by the court as unable to fully
take care of himself or protect himself from abuse,
neglect, cruelty, exploitation, or discrimination because
of a physical or mental disability or condition.
(b) "Child abuse" means physical, psychological, or

sexual abuse, and criminal neglect as defined in
Republic Act No. 7610 and other related laws.
(c) "Facilitator" means a person appointed by the court

to pose questions to a child.
(d) "Record regarding a child" or "record" means any

photograph, videotape, audiotape, film, handwriting,
typewriting, printing, electronic recording, computer data
or printout, or other memorialization, including any court
document, pleading, or any copy or reproduction of any
of the foregoing, that contains the name, description,
address, school, or any other personal identifying
information about a child or his family and that is
produced or maintained by a public agency, private
agency, or individual.
(e) A "guardian ad litem" is a person appointed by the

court where the case is pending for a child who is a
victim of, accused of, or a witness to a crime to protect
the best interest of the said child.
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(f) A "support person" is a person chosen by the child to

accompany him to testify at or attend a judicial
proceeding or deposition to provide emotional support
for him.
(g) "Best interests of the child" means the totality of the

circumstances and conditions as are most congenial to
the survival, protection, and feelings of security of the
child and most encouraging to his physical,
psychological, and emotional development. It also
means the least detrimental available alternative for
safeguarding the growth and development of the child.
(h) "Developmental level" refers to the specific growth

phase in which most individuals are expected to behave
and function in relation to the advancement of their
physical, socio-emotional, cognitive, and moral abilities.
(i) "In-depth investigative interview" or "disclosure

interview" is an inquiry or proceeding conducted by duly
trained members of multidisciplinary team or
representatives of law enforcement or child protective
services for the purpose of determining whether child
abuse has been committed.
SECTION 5. Guardian Ad Litem.
(a) The court may appoint a guardian ad litem for a child

who is a victim of, accused of, or a witness to a crime to
promote the best interests of the child. In making the
appointment, the court shall consider the background of
the guardian ad litem and his familiarity with the judicial
process, social service programs, and child development,
giving preference to the parents of the child, if qualified.
The guardian ad litem may be a member of the
Philippine Bar. A person who is a witness in any
proceeding involving the child cannot be appointed as a
guardian ad litem.
(b) The guardian ad litem:
(1) Shall attend all interviews, depositions,

hearings, and trial proceedings in which a child
participates;
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(2) Shall make recommendations to the court

concerning the welfare of the child;
(3) Shall have access to all reports, evaluations,

and records necessary to effectively advocate for
the child, except privileged communications;
(4) Shall marshal and coordinate the delivery of

resources and special services to the child;
(5) Shall explain, in language understandable to

the child, all legal proceedings, including police
investigations, in which the child is involved;
(6) Shall assist the child and his family in coping

with the emotional effects of crime and
subsequent criminal or non-criminal proceedings
in which the child is involved;
(7) May remain with the child while the child waits
to testify;
(8) May interview witnesses; and
(9) May request additional examinations by

medical or mental health professionals if there is
a compelling need therefore.
(c) The guardian ad litem shall be notified of all

proceedings but shall not participate in the trial. However,
he may file motions pursuant to sections 9, 10, 25, 26,
27 and 31(c). If the guardian ad litem is a lawyer, he may
object during trial that questions asked of the child are
not appropriate to his developmental level.
(d) The guardian ad litem may communicate concerns

regarding the child to the court through an officer of the
court designated for that purpose.
(e) The guardian ad litem shall not testify in any

proceeding concerning any information, statement, or
opinion received from the child in the course of serving
as a guardian ad litem, unless the court finds it
necessary to promote the best interests of the child.
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EVIDENCE
(f) The guardian ad litem shall be presumed to have

acted in good faith in compliance with his duties
described in sub-section (b).
SECTION 6. Competency. - Every child is presumed

qualified to be a witness. However, the court shall conduct a
competency examination of a child, motu proprio or on motion
of a party, when it finds that substantial doubt exists regarding
the ability of the child to perceive, remember, communicate,
distinguish truth from falsehood, or appreciate the duty to tell
the truth in court.
(a) Proof of Necessity. A party seeking a competency

examination must present proof of necessity of
competency examination. The age of the child by itself is
not a sufficient basis for a competency examination.
(b) Burden of Proof. To rebut the presumption of

competence enjoyed by a child, the burden of proof lies
on the party challenging his competence.
(c) Person allowed at competency examination. Only

the following are allowed to attend a competency
examination:
(1) The judge and necessary court personnel;
(2) The counsel for the parties;
(3) The guardian ad litem;
(4) One or more support persons for the child; and
(5) The defendant, unless the court determines that

competence can be fully evaluated in his absence.
(d) Conduct of examination. Examination of a child as to

his competence shall be conducted only by the judge.
Counsel for the parties, however, can submit questions to
the judge that he may, in his discretion, ask the child.
(e) Developmentally appropriate questions. The

questions asked at the competency examination shall be
appropriate to the age and developmental level of the child;
shall not be related to the issues at trial; and shall focus on
the ability of the child to remember, communicate,
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distinguish between truth and falsehood, and appreciate the

duty to testify truthfully.
(f) Continuing duty to assess competence. The court has

the duty of continuously assessing the competence of the
child throughout his testimony.
The determination of the competence and capability of a child as a

witness rests primarily with the trial judge.165
It is well-established that any child, regardless of age, can be a

competent witness if he or she can perceive, and perceiving, can make
known his or her perception to others, that is, he or she is capable of
relating truthfully facts for which the child is examined. The requirements
of a childs competence as a witness are: (a) capacity of observation, (b)
capacity of recollection, and (c) capacity of communication. A child may
be a competent witness where he or she has sufficient capacity to
understand the solemnity of an oath and to comprehend the obligation it
imposes, and where he or she has sufficient intelligence to receive just
impressions as to the facts of which the child is to testify and relate them
correctly, although he or she is very young.166
Persons react differently when confronted with situations like this

one. One cannot expect a child of five (5) years to act the same way a ten
(10)-year old or an older woman would. Crying is almost always brought
about by the horrifying experience a woman has undergone and the
shame and scandal that she has to go through after the dastardly act has
been committed. Not so in the case of a five (5)-year old who has not
fathomed the ways of man. If she did not cry while she was being raped, it
could be because she was afraid of what was being done to her. Fear
would oftentimes overwhelm the victim or stupefy her into inaction. This
kind of apprehension comes to one when somebody older and close to
her does something she does not comprehend but she just keeps quiet
because the other person might get mad.167
SECTION 7. Oath or Affirmation. - Before testifying, a child

shall take an oath or affirmation to tell the truth.
It cannot be argued that simply because a child witness is not

examined on the nature of the oath and the need for her to tell the whole
truth, the competency of the witness and the truth of her testimony are
impaired. If a party against whom a witness is presented believes that the
witness is incompetent or is not aware of his obligation and responsibility
165
People v. Bisda, et al., G.R. No. 140895, July 17, 2003, 406 SCRA 454, 478.
166
People v. De Jesus, G.R. No. 127878, July 25, 2003, 407 SCRA 265, 272.
167
People v. Gajo, G.R. No. 127749, March 9, 2000, 327 SCRA 612.
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to tell the truth and the consequence of him testifying falsely, such party
may pray for leave to conduct a voire dire examination on such witness to
test his competency. The court may motu proprio conduct the voir dire
examination. In United States v. Buncad,168 the Court held that when a
child of tender age is presented as a witness, it is the duty of the judge to
examine the child to determine his competency.169
SECTION 8. Examination of a Child Witness. - The

examination of a child witness presented in a hearing or any
proceeding shall be done in open court. Unless the witness is
incapacitated to speak, or the question calls for a different
mode of answer, the answers of the witness shall be given
orally.
The party who presents a child witness or the guardian

ad litem of such child witness may, however, move the court to
allow him to testify in the manner provided in this Rule.
SECTION 9. Interpreter for Child. -
(a) When a child does not understand the English or

Filipino language or is unable to communicate in said
languages due to his developmental level, fear, shyness,
disability, or other similar reason, an interpreter whom
the child can understand and who understands the child
may be appointed by the court, motu proprio or upon
motion, to interpret for the child.
(b) If a witness or member of the family of the child is the

only person who can serve as an interpreter for the child,
he shall not be disqualified and may serve as the
interpreter of the child. The interpreter, however, who is
also a witness, shall testify ahead of the child.
(c) An interpreter shall take an oath or affirmation to

make a true and accurate interpretation.
SECTION 10. Facilitator to Pose Questions to Child.
(a) The court may, motu proprio or upon motion, appoint

a facilitator if it determines that the child is unable to
understand or respond to questions asked. The
facilitator may be a child psychologist, psychiatrist, social
168
25 Phil. 530 (1913).
169
People v. Bisda, et al., supra note 165 at 476.
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worker, guidance counselor, teacher, religious leader,

parent, or relative.
(b) If the court appoints a facilitator, the respective

counsels for the parties shall pose questions to the child
only through the facilitator. The questions shall either be
in the words used by counsel or, if the child is not likely
to understand the same, in words that are
comprehensible to the child and which convey the
meaning intended by counsel.
(c) The facilitator shall take an oath or affirmation to

pose questions to the child according to the meaning
intended by counsel.
SECTION 11. Support Persons.
(a) A child testifying at a judicial proceeding or making a

deposition shall have the right to be accompanied by
one or two persons of his own choosing to provide him
emotional support.
(1) Both support persons shall remain within the

view of the child during his testimony.
(2) One of the support persons may accompany

the child to the witness stand, provided the
support person does not completely obscure the
child from the view of the opposing party, judge,
or hearing officer.
(3) The court may allow the support person to

hold the hand of the child or take other
appropriate steps to provide emotional support to
the child in the course of the proceedings.
(4) The court shall instruct the support persons

not to prompt, sway, or influence the child during
his testimony.
(b) If the support person chosen by the child is also a

witness, the court may disapprove the choice if it is
sufficiently established that the attendance of the
support person during the testimony of the child would
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pose a substantial risk of influencing or affecting the

content of the testimony of the child.
(c) If the support person who is also a witness is

allowed by the court, his testimony shall be presented
ahead of the testimony of the child.
SECTION 12. Waiting Area for Child Witnesses. - The courts

are encouraged to provide a waiting area for children that is
separate from waiting areas used by other persons. The waiting
area for children should be furnished so as to make a child
comfortable.
SECTION 13. Courtroom Environment. - To create a more

comfortable environment for the child, the court may, in its
discretion, direct and supervise the location, movement and
deportment of all persons in the courtroom including the parties,
their counsel, child, witnesses, support persons, guardian ad
litem, facilitator, and court personnel. The child may be allowed
to testify from a place other than the witness chair. The witness
chair or other place from which the child testifies may be turned
to facilitate his testimony but the opposing party and his
counsel must have a frontal or profile view of the child during
the testimony of the child. The witness chair or other place from
which the child testifies may also be rearranged to allow the
child to see the opposing party and his counsel, if he chooses
to look at them, without turning his body or leaving the witness
stand. The judge need not wear his judicial robe.
Nothing in this section or any other provision of law,

except official in-court identification provisions, shall be
construed to require a child to look at the accused.
Accommodations for the child under this section need

not be supported by a finding of trauma to the child.
SECTION 14. Testimony During Appropriate Hours. - The

court may order that the testimony of the child should be taken
during a time of day when the child is well-rested.
SECTION 15. Recess During Testimony. - The child may be

allowed reasonable periods of relief while undergoing direct,
cross, re-direct, and re-cross examinations as often as
necessary depending on his developmental level.
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SECTION 16. Testimonial Aids. - The court shall permit a child

to use dolls, anatomically-correct dolls, puppets, drawings,
mannequins, or any other appropriate demonstrative device to
assist him in his testimony.
SECTION 17. Emotional Security Item. - While testifying, a

child shall be allowed to have an item of his own choosing such
as a blanket, toy, or doll.
SECTION 18. Approaching the Witness. - The court may

prohibit a counsel from approaching a child if it appears that the
child is fearful of or intimidated by the counsel.
SECTION 19. Mode of Questioning. - The court shall exercise

control over the questioning of children so as to (1) facilitate the
ascertainment of the truth, (2) ensure that questions are stated
in a form appropriate to the developmental level of the child, (3)
protect children from harassment or undue embarrassment,
and (4) avoid waste of time.
The court may allow the child witness to testify in a

narrative form.
SECTION 20. Leading Questions. - The court may allow

leading questions in all stages of examination of a child if the
same will further the interests of justice.
The trend in procedural law is to give wide latitude to the courts in

exercising control over the questioning of a child witness. The reasons are
spelled out in our Rule on Examination of a Child Witness, which took
effect on December 15, 2000, namely: (1) to facilitate the ascertainment of
the truth; (2) to ensure that questions are stated in a form appropriate to
the developmental level of the child; (3) to protect children from
harassment or undue embarrassment; and (4) avoid waste of time.
Leading questions in all stages of examination of a child are allowed if the
same will further the interests of justice.170
No prior proof of difficulty in eliciting intelligible answers from the

child witness is required in order to allow leading questions. It is sufficient
that the witness is shown to be a child of tender years.171
170
People v. Escultor, G.R. No. 149366-67, May 27, 2004, 429 SCRA 651, 665; People v.
Daganio, G.R. No. 137385, January 23, 2002, 374 SCRA 365, 371.
171
People v. Legaspi, G.R. No. 137283, February 17, 2003, 397 SCRA 531, 543.
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The afore-cited rule was formulated to allow children to give reliable

and complete evidence, minimize trauma to children, encourage them to
testify in legal proceedings, and facilitate the ascertainment of truth.172
SECTION 21. Objections to Questions. - Objections to

questions should be couched in a manner so as not to mislead,
confuse, frighten, or intimidate the child.
Child witnesses may testify in a narrative form and leading

questions may be allowed by the trial court in all stages of the examination
if the same will further the interest of justice. Objections to questions
should be couched in a manner so as not to mislead, confuse, frighten
and intimidate the child.173
SECTION 22. Corroboration. - Corroboration shall not be

required of a testimony of a child. His testimony, if credible by
itself, shall be sufficient to support a finding of fact, conclusion,
or judgment subject to the standard of proof required in criminal
and non-criminal cases.
SECTION 23. Excluding the Public. - When a child testifies, the

court may order the exclusion from the courtroom of all persons,
including members of the press, who do not have a direct
interest in the case. Such an order may be made to protect the
right to privacy of the child or if the court determines on the
record that requiring the child to testify in open court would
cause psychological harm to him, hinder the ascertainment of
truth, or result in his inability to effectively communicate due to
embarrassment, fear, or timidity. In making its order, the court
shall consider the developmental level of the child, the nature of
the crime, the nature of his testimony regarding the crime, his
relationship to the accused and to persons attending the trial,
his desires, and the interests of his parents or legal guardian.
The court may, motu proprio, exclude the public from the
courtroom if the evidence to be produced during trial is of such
character as to be offensive to decency or public morals. The
court may also, on motion of the accused, exclude the public
from trial, except court personnel and the counsel of the parties.
The same Rule on Examination of a Child Witness provides that

when a child testifies, the court may, motu proprio, order the exclusion
from the courtroom of all persons who do not have a direct interest in the
case. In issuing such order, the court is to consider, inter alia, the
developmental level of the child, the nature of the crime, and the nature of
172
People v. Ugos, G.R. No. 181633, September 12, 2008, 565 SCRA 207, 215.
173
People v. Caete, G.R. No. 142930, March 28, 2003, 400 SCRA 109, 122.
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his testimony regarding the crime. It may also exclude the public from the
courtroom if the evidence to be produced is of such character as to be
offensive to decency or public morals.174
SECTION 24. Persons Prohibited from Entering and Leaving

Courtroom. - The court may order that persons attending the
trial shall not enter or leave the courtroom during the testimony
of the child.
SECTION 25. Live-Link Television in Criminal Cases Where the

Child is a Victim or a Witness. -
(a) The prosecutor, counsel or the guardian ad litem may

apply for an order that the testimony of the child be
taken in a room outside the courtroom and be televised
to the courtroom by live-link television.
Before the guardian ad litem applies for an order

under this section, he shall consult the prosecutor or
counsel and shall defer to the judgment of the
prosecutor or counsel regarding the necessity of
applying for an order. In case the guardian ad litem is
convinced that the decision of the prosecutor or counsel
not to apply will cause the child serious emotional
trauma, he himself may apply for the order.
The person seeking such an order shall apply at least

five (5) days before the trial date, unless the court finds
on the record that the need for such an order was not
reasonably foreseeable.
(b) The court may motu proprio hear and determine, with
notice to the parties, the need for taking the testimony of
the child through live-link television.
(c) The judge may question the child in chambers, or in

some comfortable place other than the courtroom, in the
presence of the support person, guardian ad litem,
prosecutor, and counsel for the parties. The questions of
the judge shall not be related to the issues at trial but to
the feelings of the child about testifying in the courtroom.
(d) The judge may exclude any person, including the

accused, whose presence or conduct causes fear to the
child.
174
Genil v. Rivera, A.M. No. MTJ-06-1619, January 23, 2006, 479 SCRA 363, 371.
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(e) The court shall issue an order granting or denying the

use of live-link television and stating the reasons
therefore. It shall consider the following factors:
(1) The age and level of development of the child;
(2) His physical and mental health, including any

mental or physical disability;
(3) Any physical, emotional, or psychological

injury experienced by him;
(4) The nature of the alleged abuse;
(5) Any threats against the child;
(6) His relationship with the accused or adverse

party;
(7) His reaction to any prior encounters with the

accused in court or elsewhere;
(8) His reaction prior to trial when the topic of

testifying was discussed with him by parents or
professionals;
(9) Specific symptoms of stress exhibited by the

child in the days prior to testifying;
(10) Testimony of expert or lay witnesses;
(11) The custodial situation of the child and the

attitude of the members of his family regarding
the events about which he will testify; and
(12) Other relevant factors, such as court

atmosphere and formalities of court procedure.
(f) The court may order that the testimony of the child be
taken by live-link television if there is a substantial
likelihood that the child would suffer trauma from
testifying in the presence of the accused, his counsel or
the prosecutor as the case may be. The trauma must be
of a kind which would impair the completeness or
truthfulness of the testimony of the child.
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(g) If the court orders the taking of testimony by live-link

television:
(1) The child shall testify in a room separate from the

courtroom in the presence of the guardian ad litem;
one or both of his support persons; the facilitator and
interpreter, if any; a court officer appointed by the
court; persons necessary to operate the closed-
circuit television equipment; and other persons
whose presence are determined by the court to be
necessary to the welfare and well-being of the child;
(2) The judge, prosecutor, accused, and counsel for

the parties shall be in the courtroom. The testimony
of the child shall be transmitted by live-link television
into the courtroom for viewing and hearing by the
judge, prosecutor, counsel for the parties, accused,
victim, and the public unless excluded.
(3) If it is necessary for the child to identify the

accused at trial, the court may allow the child to enter
the courtroom for the limited purpose of identifying
the accused, or the court may allow the child to
identify the accused by observing the image of the
latter on a television monitor.
(4) The court may set other conditions and limitations

on the taking of the testimony that it finds just and
appropriate, taking into consideration the best
interests of the child.
(h) The testimony of the child shall be preserved on

videotape, digital disc, or other similar devices which shall
be made part of the court record and shall be subject to a
protective order as provided in section 31(b).
SECTION 26. Screens, One-way Mirrors, and Other Devices to

Shield Child from Accused. -
(a) The prosecutor or the guardian ad litem may apply

for an order that the chair of the child or that a screen or
other device be placed in the courtroom in such a
manner that the child cannot see the accused while
testifying. Before the guardian ad litem applies for an
order under this section, he shall consult with the
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EVIDENCE
prosecutor or counsel subject to the second and third

paragraphs of section 25(a) of this Rule. The court shall
issue an order stating the reasons and describing the
approved courtroom arrangement.
(b) If the court grants an application to shield the child

from the accused while testifying in the courtroom, the
courtroom shall be arranged to enable the accused to
view the child.
SECTION 27. Videotaped Deposition.
(a) The prosecutor or the guardian ad litem may apply

for an order that a deposition be taken of the testimony
of the child and that it be recorded and preserved on
videotape. Before the guardian ad litem applies for an
order under this section, he shall consult with the
prosecutor or counsel subject to the second and third
paragraphs of section 25(a).
(b) If the court finds that the child will not be able to
testify in open court at trial, it shall issue an order that
the deposition of the child be taken and preserved by
videotape.
(c) The judge shall preside at the videotaped deposition

of a child. Objections to deposition testimony or
evidence, or parts thereof, and the grounds for the
objection shall be stated and shall be ruled upon at the
time of the taking of the deposition. The other persons
who may be permitted to be present at the proceeding
are:
(1) The prosecutor;
(2) The defense counsel;
(4) The accused, subject to sub-section (e);
(5) Other persons whose presence is determined by

the court to be necessary to the welfare and well-
being of the child;
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EVIDENCE
(6) One or both of his support persons, the facilitator

and interpreter, if any;
(7) The court stenographer; and
(8) Persons necessary to operate the videotape

equipment.
(d) The rights of the accused during trial, especially the right
to counsel and to confront and cross-examine the child,
shall not be violated during the deposition.
(e) If the order of the court is based on evidence that the

child is unable to testify in the physical presence of the
accused, the court may direct the latter to be excluded from
the room in which the deposition is conducted. In case of
exclusion of the accused, the court shall order that the
testimony of the child be taken by live-link television in
accordance with section 25 of this Rule. If the accused is
excluded from the deposition, it is not necessary that the
child be able to view an image of the accused.
(f) The videotaped deposition shall be preserved and

stenographically recorded. The videotape and the
stenographic notes shall be transmitted to the clerk of the
court where the case is pending for safekeeping and shall
be made a part of the record.
(g) The court may set other conditions on the taking of the
deposition that it finds just and appropriate, taking into
consideration the best interests of the child, the
constitutional rights of the accused, and other relevant
factors.
(h) The videotaped deposition and stenographic notes shall

be subject to a protective order as provided in section 31(b).
(i) If, at the time of trial, the court finds that the child is
unable to testify for a reason stated in section 25(f) of this
Rule, or is unavailable for any reason described in section
4(c), Rule 23 of the 1997 Rules of Civil Procedure, the court
may admit into evidence the videotaped deposition of the
child in lieu of his testimony at the trial. The court shall issue
an order stating the reasons therefor.
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(j) After the original videotaping but before or during trial,

any party may file any motion for additional videotaping on
the ground of newly discovered evidence. The court may
order an additional videotaped deposition to receive the
newly discovered evidence.
SECTION 28. Hearsay Exception in Child Abuse Cases. - A

statement made by a child describing any act or attempted act
of child abuse, not otherwise admissible under the hearsay rule,
may be admitted in evidence in any criminal or non-criminal
proceeding subject to the following rules:
(a) Before such hearsay statement may be admitted, its

proponent shall make known to the adverse party the
intention to offer such statement and its particulars to
provide him a fair opportunity to object. If the child is
available, the court shall, upon motion of the adverse party,
require the child to be present at the presentation of the
hearsay statement for cross-examination by the adverse
party. When the child is unavailable, the fact of such
circumstance must be proved by the proponent.
(b) In ruling on the admissibility of such hearsay statement,

the court shall consider the time, content and circumstances
thereof which provide sufficient indicia of reliability. It shall
consider the following factors:
(1) Whether there is a motive to lie;
(2) The general character of the declarant child;
(3) Whether more than one person heard the

statement;
(4) Whether the statement was spontaneous;
(5) The timing of the statement and the relationship

between the declarant child and witness;
(6) Cross-examination could not show the lack of

knowledge of the declaration child;
(7) The possibility of faulty recollection of the

declarant of child is remote; and
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(8) The circumstances surrounding the statement are

such that there is no reason to suppose the declarant
child misrepresented the involvement of the accused.
(c) The child witness shall be considered unavailable under

the following situations:
(1) Is deceased, suffers from physical infirmity, lack

of memory, mental illness, or will be exposed to
severe psychological injury; or
(2) Is absent from the hearing and the proponent of

his statement has been unable to procure his
attendance by process or other reasonable means.
(d) When the child witness is unavailable, his hearsay

testimony shall be admitted only if corroborated by other
admissible evidence.
SECTION 29. Admissibility of Videotaped and Audiotaped In-

depth Investigative or Disclosure Interviews in Child Abuse
Cases. - The court may admit videotape and audiotape in-
depth investigative or disclosure interviews as evidence, under
the following conditions:
(a) The child witness is unable to testify in court on grounds

and under conditions established under section 28 (c).
(b) The interview of the child was conducted by duly trained

members of a multidisciplinary team or representatives of
law enforcement or child protective services in situations
where child abuse is suspected so as to determine whether
child abuse occurred.
(c) The party offering the videotape or audiotape must prove

that:
(1) the videotape or audiotape discloses the identity

of all individuals present and at all times includes
their images and voices;
(2) the statement was not made in response to

questioning calculated to lead the child to make a
particular statement or is clearly shown to be the
statement of the child and not the product of
improper suggestion;
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EVIDENCE
(3) the videotape and audiotape machine or device

was capable of recording testimony;
(4) the person operating the device was competent to

operate it;
(5) the videotape or audiotape is authentic and

correct; and
(6) it has been duly preserved.
The individual conducting the interview of the child shall

be available at trial for examination by any party. Before the
videotape or audiotape is offered in evidence, all parties shall
be afforded an opportunity to view or listen to it and shall be
furnished a copy of the written transcript of the proceedings.
The fact that an investigative interview is not videotaped

or audiotaped as required by this section shall not by itself
constitute a basis to exclude from evidence out-of-court
statements or testimony of the child. It may, however, be
considered in determining the reliability of the statements of the
child describing abuse.
SECTION 30. Sexual Abuse Shield Rule. -

(a) Inadmissible evidence. The following evidence is not
admissible in any criminal proceeding involving alleged child
sexual abuse:
(1) Evidence offered to prove that the alleged victim

engaged in other sexual behavior; and
(2) Evidence offered to prove the sexual

predisposition of the alleged victim.
(b) Exception. Evidence of specific instances of sexual

behavior by the alleged victim to prove that a person other
than the accused was the source of semen, injury, or other
physical evidence shall be admissible.
A party intending to offer such evidence must:
(1) File a written motion at least fifteen (15) days

before trial, specifically describing the evidence and stating the
purpose for which it is offered, unless the court, for good cause,
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requires a different time for filing or permits filing during trial;

and
(2) Serve the motion on all parties and the guardian

ad litem at least three (3) days before the hearing of the motion.
Before admitting such evidence, the court must conduct

a hearing in chambers and afford the child, his guardian ad
litem, the parties, and their counsel a right to attend and be
heard. The motion and the record of the hearing must be
sealed and remain under seal and protected by a protective
order set forth in section 31(b). The child shall not be required
to testify at the hearing in chambers except with his consent.
SECTION 31. Protection of Privacy and Safety.
(a) Confidentiality of records. Any record regarding a

child shall be confidential and kept under seal. Except upon
written request and order of the court, a record shall only be
released to the following:
(1) Members of the court staff for administrative use;
(2) The prosecuting attorney;
(3) Defense counsel;
(5) Agents of investigating law enforcement agencies;

and
(6) Other persons as determined by the court.
(b) Protective order. Any videotape or audiotape of a

child that is part of the court record shall be under a
protective order that provides as follows:
(1) Tapes may be viewed only by parties, their

counsel, their expert witness, and the guardian ad
litem.
(2) No tape, or any portion thereof, shall be divulged

by any person mentioned in sub-section (a) to any
other person, except as necessary for the trial.
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(3) No person shall be granted access to the tape, its

transcription or any part thereof unless he signs a
written affirmation that he has received and read a
copy of the protective order; that he submits to the
jurisdiction of the court with respect to the protective
order; and that in case of violation thereof, he will be
subject to the contempt power of the court.
(4) Each of the tape cassettes and transcripts thereof

made available to the parties, their counsel, and
respective agents shall bear the following cautionary
notice:
"This object or document and the contents

thereof are subject to a protective order issued
by the court in (case title), (case number).
They shall not be examined, inspected, read,
viewed, or copied by any person, or disclosed
to any person, except as provided in the
protective order. No additional copies of the
tape or any of its portion shall be made, given,
sold, or shown to any person without prior
court order. Any person violating such
protective order is subject to the contempt
power of the court and other penalties
prescribed by law."
(5) No tape shall be given, loaned, sold, or shown to

any person except as ordered by the court.
(6) Within thirty (30) days from receipt, all copies of

the tape and any transcripts thereof shall be returned
to the clerk of court for safekeeping unless the period
is extended by the court on motion of a party.
(7) This protective order shall remain in full force and

effect until further order of the court.
(c) Additional protective orders. The court may, motu

proprio or on motion of any party, the child, his parents,
legal guardian, or the guardian ad litem, issue additional
orders to protect the privacy of the child.
(d) Publication of identity contemptuous. Whoever

publishes or causes to be published in any format the name,
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address, telephone number, school, or other identifying

information of a child who is or is alleged to be a victim or
accused of a crime or a witness thereof, or an immediate
family of the child shall be liable to the contempt power of
the court.
(e) Physical safety of child; exclusion of evidence. A child

has a right at any court proceeding not to testify regarding
personal identifying information, including his name,
address, telephone number, school, and other information
that could endanger his physical safety or his family. The
court may, however, require the child to testify regarding
personal identifying information in the interest of justice.
(f) Destruction of videotapes and audiotapes. Any

videotape or audiotape of a child produced under the
provisions of this Rule or otherwise made part of the court
record shall be destroyed after five (5) years have elapsed
from the date of entry of judgment.
(g) Records of youthful offender. Where a youthful

offender has been charged before any city or provincial
prosecutor or before any municipal judge and the charges
have been ordered dropped, all the records of the case shall
be considered as privileged and may not be disclosed
directly or indirectly to anyone for any purpose whatsoever.
Where a youthful offender has been charged and the

court acquits him, or dismiss the case or commits him to an
institution and subsequently releases him pursuant to Chapter
3 of P.D. No. 603, all the records of his case shall also be
considered as privileged and may not be disclosed directly or
indirectly to anyone except to determine if a defendant may
have his sentence suspended under Article 192 of P.D. No. 603
or if he may be granted probation under the provisions of P.D.
No. 968 or to enforce his civil liability, if said liability has been
imposed in the criminal action. The youthful offender concerned
shall not be held under any provision of law to be guilty of
perjury or of concealment or misrepresentation by reason of his
failure to acknowledge the case or recite any fact related
thereto in response to any inquiry made to him for any purpose.
"Records" within the meaning of the sub-section shall

include those which may be in the files of the National Bureau
of Investigation and with any police department or government
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agency which may have been involved in the case. (Art. 200,
P.D. No. 603)
SECTION 32. Applicability of Ordinary Rules. - The provisions

of the Rules of Court on deposition, conditional examination of
witnesses, and evidence shall be applied in a suppletory
character.
B. Rules on Electronic Evidence175
RULE 1
Coverage
SECTION 1. Scope. Unless otherwise provided herein,

these Rules shall apply whenever an electronic document or
electronic data message, as defined in Rule 2 hereof, is offered
or used in evidence.
SECTION 2. Cases covered. These Rules shall apply to all

civil actions and proceedings, as well as quasi-judicial and
administrative cases.
SECTION 3. Application of other rules on evidence. In all

matters not specifically covered by these Rules, the Rules of
Court and pertinent provisions of statutes containing rules on
evidence shall apply.
RULE 2
Definition of Terms and Construction
SECTION 1. Definition of Terms. For purposes of these

Rules, the following terms are defined, as follows:
(a) "Asymmetric or public cryptosystem" means a system

capable of generating a secure key pair, consisting of a private
key for creating a digital signature, and a public key for verifying
the digital signature.
(b) "Business records" include records of any business,

institution, association, profession, occupation, and calling of
every kind, whether or not conducted for profit, or for legitimate
or illegitimate purposes.
175
A.M. No. 01-7-01-SC, effective August 1, 2001 as amended, effective October 14, 2002
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(c) "Certificate" means an electronic document issued to

support a digital signature which purports to confirm the identity
or other significant characteristics of the person who holds a
particular key pair.
(d) "Computer" refers to any single or interconnected device or

apparatus, which, by electronic, electro-mechanical or magnetic
impulse, or by other means with the same function, can receive,
record, transmit, store, process, correlate, analyze, project,
retrieve and/or produce information, data, text, graphics, figures,
voice, video, symbols or other modes of expression or perform
any one or more of these functions.
(e) "Digital Signature" refers to an electronic signature

consisting of a transformation of an electronic document or an
electronic data message using an asymmetric or public
cryptosystem such that a person having the initial
untransformed electronic document and the signer's public key
can accurately determine:
(i) whether the transformation was created using the

private key that corresponds to the signer's public key;
and,
(ii) whether the initial electronic document had been

altered after the transformation was made.
(f) "Digitally signed" refers to an electronic document or

electronic data message bearing a digital signature verified by
the public key listed in a certificate.
(g) "Electronic data message" refers to information generated,

sent, received or stored by electronic, optical or similar means.
(h) "Electronic document" refers to information or the

representation of information, data, figures, symbols or other
modes of written expression, described or however represented,
by which a right is established or an obligation extinguished, or
by which a fact may be proved and affirmed, which is received,
recorded, transmitted, stored, processed, retrieved or produced
electronically. It includes digitally signed documents and any
print-out or output, readable by sight or other means, which
accurately reflects the electronic data message or electronic
document. For purposes of these Rules, the term "electronic
document" may be used interchangeably with "electronic data
message".
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(i) "Electronic key" refers to a secret code which secures and

defends sensitive information that crosses over public channels
into a form decipherable only with a matching electronic key.
(j) "Electronic signature" refers to any distinctive mark,

characteristic and/or sound in electronic form, representing the
identity of a person and attached to or logically associated with
the electronic data message or electronic document or any
methodology or procedure employed or adopted by a person
and executed or adopted by such person with the intention of
authenticating, signing or approving an electronic data
message or electronic document. For purposes of these Rules,
an electronic signature includes digital signatures.
(k) "Ephemeral electronic communication" refers to telephone

conversations, text messages, chatroom sessions, streaming
audio, streaming video, and other electronic forms of
communication the evidence of which is not recorded or
retained.
(l) "Information and Communication System" refers to a system

for generating, sending, receiving, storing or otherwise
processing electronic data messages or electronic documents
and includes the computer system or other similar devices by
or in which data are recorded or stored and any procedure
related to the recording or storage of electronic data messages
or electronic documents.
(m) "Key Pair" in an asymmetric cryptosystem refers to the

private key and its mathematically related public key such that
the latter can verify the digital signature that the former creates.
(n) "Private Key" refers to the key of a key pair used to create a
digital signature.
(o) "Public Key" refers to the key of a key pair used to verify a
digital signature.
The terms "electronic data message" and "electronic document," as

defined under the Electronic Commerce Act of 2000, do not include a
facsimile transmission. Accordingly, a facsimile transmission cannot be
considered as electronic evidence. It is not the functional equivalent of an
original under the Best Evidence Rule and is not admissible as electronic
evidence.
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Since a facsimile transmission is not an "electronic data message"

or an "electronic document," and cannot be considered as electronic
evidence by the Court, with greater reason is a photocopy of such a fax
transmission not electronic evidence.176
The rules use the word "information" to define an electronic

document received, recorded, transmitted, stored, processed, retrieved or
produced electronically. This would suggest that an electronic document is
relevant only in terms of the information contained therein, similar to any
other document which is presented in evidence as proof of its contents.
However, what differentiates an electronic document from a paper-based
document is the manner by which the information is processed; clearly,
the information contained in an electronic document is received, recorded,
transmitted, stored, processed, retrieved or produced electronically.
A perusal of the information contained in the photocopies submitted

by petitioner will reveal that not all of the contents therein, such as the
signatures of the persons who purportedly signed the documents, may be
recorded or produced electronically. By no stretch of the imagination can a
person's signature affixed manually be considered as information
electronically received, recorded, transmitted, stored, processed, retrieved
or produced. Hence, the argument of petitioner that since these paper
printouts were produced through an electronic process, then these
photocopies are electronic documents as defined in the Rules on
Electronic Evidence is obviously an erroneous, if not preposterous,
interpretation of the law. Having thus declared that the offered
photocopies are not tantamount to electronic documents, it is
consequential that the same may not be considered as the functional
equivalent of their original as decreed in the law.177
Short Messaging System or text messages are admissible in evidence

under Section 1(k), Rule 1 of the Rules on Electronic Evidence.178
SECTION 2. Construction. These Rules shall be liberally

construed to assist the parties in obtaining a just, expeditious,
and inexpensive determination of cases.
176
MCC Industrial Sales Corp. v. Ssangyong, G.R. No. 170633, October 17, 2007, 536
SCRA 408, 455; See also Garvida v. Sales, G.R. No. 124893, April 18, 1997, 271 SCRA 767,
779 .
177
National Power Corporation v. Codilla, Jr., G.R. No. 170491, April 3, 2007, 520 SCRA 412,
423.
178
Nuez v. Cruz-Apao, A.M. No. CA-05-18-P, April 12, 2005, 455 SCRA 288; 299, cited in
Vidallon-Magtolis v. Salud, A.M. No. CA-05-20-P, September 9, 2005, 469 SCRA 439, 461-
462.
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The interpretation of these Rules shall also take into

consideration the international origin of Republic Act No. 8792,
otherwise known as the Electronic Commerce Act.
RULE 3
Electronic Documents
SECTION 1. Electronic Documents as functional equivalent of

paper-based documents. Whenever a rule of evidence refers
to the term writing, document, record, instrument,
memorandum or any other form of writing, such term shall be
deemed to include an electronic document as defined in these
Rules.
SECTION 2. Admissibility. An electronic document is

admissible in evidence if it complies with the rules on
admissibility prescribed by the Rules of Court and related laws
and is authenticated in the manner prescribed by these Rules.
SECTION 3. Privileged communication. The confidential

character of a privileged communication is not lost solely on the
ground that it is in the form of an electronic document.
RULE 4
Best Evidence Rule
SECTION 1. Original of an Electronic Document. An

electronic document shall be regarded as the equivalent of an
original document under the Best Evidence Rule if it is a
printout or output readable by sight or other means, shown to
reflect the data accurately.
SECTION 2. Copies as equivalent of the originals. When a

document is in two or more copies executed at or about the
same time with identical contents, or is a counterpart produced
by the same impression as the original, or from the same matrix,
or by mechanical or electronic re-recording, or by chemical
reproduction, or by other equivalent techniques which
accurately reproduces the original, such copies or duplicates
shall be regarded as the equivalent of the original.
Notwithstanding the foregoing, copies or duplicates shall

not be admissible to the same extent as the original if:
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(a) a genuine question is raised as to the authenticity of

the original; or
(c) in the circumstances it would be unjust or inequitable

to admit the copy in lieu of the original.
RULE 5
Authentication of Electronic Documents
SECTION 1. Burden of proving authenticity. The person

seeking to introduce an electronic document in any legal
proceeding has the burden of proving its authenticity in the
manner provided in this Rule.
SECTION 2. Manner of authentication. Before any private

electronic document offered as authentic is received in
evidence, its authenticity must be proved by any of the
following means:
(a) by evidence that it had been digitally signed by the

person purported to have signed the same;
(b) by evidence that other appropriate security

procedures or devices as may be authorized by the
Supreme Court or by law for authentication of electronic
documents were applied to the document; or
(c) by other evidence showing its integrity and reliability

to the satisfaction of the Judge.
SECTION 3. Proof of electronically notarized document. A

document electronically notarized in accordance with the rules
promulgated by the Supreme Court shall be considered as a
public document and proved as a notarial document under the
Rules of Court.
RULE 6
Electronic Signatures
SECTION 1. Electronic signature. An electronic signature or

a digital signature authenticated in the manner prescribed
hereunder is admissible in evidence as the functional
equivalent of the signature of a person on a written document.
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SECTION 2. Authentication of electronic signatures. An

electronic signature may be authenticated in any of the
following manner:
(a) By evidence that a method or process was utilized to

establish a digital signature and verify the same;
(b) By any other means provided by law; or
(c) By any other means satisfactory to the judge as

establishing the genuineness of the electronic signature.
SECTION 3. Disputable presumptions relating to electronic

signatures. Upon the authentication of an electronic
signature, it shall be presumed that:
(a) The electronic signature is that of the person to

whom it correlates;
(b) The electronic signature was affixed by that person

with the intention of authenticating or approving the
electronic document to which it is related or to indicate
such person's consent to the transaction embodied
therein; and
(c) The methods or processes utilized to affix or verify

the electronic signature operated without error or fault.
SECTION 4. Disputable presumptions relating to digital

signatures. Upon the authentication of a digital signature, it
shall be presumed, in addition to those mentioned in the
immediately preceding section, that:
(a) The information contained in a certificate is correct;
(b) The digital signature was created during the

operational period of a certificate;
(c) No cause exists to render a certificate invalid or

revocable;
(d) The message associated with a digital signature has

not been altered from the time it was signed, and,
(e) A certificate had been issued by the certification

authority indicated therein.
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RULE 7
Evidentiary Weight of Electronic Documents
SECTION 1. Factors for assessing evidentiary weight. In

assessing the evidentiary weight of an electronic document, the
following factors may be considered:
(a) The reliability of the manner or method in which it

was generated, stored or communicated, including but
not limited to input and output procedures, controls, tests
and checks for accuracy and reliability of the electronic
data message or document, in the light of all the
circumstances as well as any relevant agreement;
(b) The reliability of the manner in which its originator

was identified;
(c) The integrity of the information and communication

system in which it is recorded or stored, including but not
limited to the hardware and computer programs or
software used as well as programming errors;
(d) The familiarity of the witness or the person who made

the entry with the communication and information
system;
(e) The nature and quality of the information which went

into the communication and information system upon
which the electronic data message or electronic
document was based; or
(f) Other factors which the court may consider as

affecting the accuracy or integrity of the electronic
document or electronic data message.
A computer print out must be authenticated or its due execution be

duly established to deserve evidentiary weight.179
SECTION 2. Integrity of an information and communication

system. In any dispute involving the integrity of the
information and communication system in which an electronic
179
Aznar v. Citibank, N.A. (Philippines), G.R. No. 164273, March 28, 2007, 519 SCRA 287,
308.
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document or electronic data message is recorded or stored, the

court may consider, among others, the following factors:
(a) Whether the information and communication system

or other similar device was operated in a manner that did
not affect the integrity of the electronic document, and
there are no other reasonable grounds to doubt the
integrity of the information and communication system;
(b) Whether the electronic document was recorded or

stored by a party to the proceedings with interest
adverse to that of the party using it; or
(c) Whether the electronic document was recorded or

stored in the usual and ordinary course of business by a
person who is not a party to the proceedings and who
did not act under the control of the party using it.
RULE 8
Business Records as Exception to the Hearsay Rule
SECTION 1. Inapplicability of the hearsay rule. A

memorandum, report, record or data compilation of acts, events,
conditions, opinions, or diagnoses, made by electronic, optical
or other similar means at or near the time of or from
transmission or supply of information by a person with
knowledge thereof, and kept in the regular course or conduct of
a business activity, and such was the regular practice to make
the memorandum, report, record, or data compilation by
electronic, optical or similar means, all of which are shown by
the testimony of the custodian or other qualified witnesses, is
excepted from the rule on hearsay evidence.
SECTION 2. Overcoming the presumption. The presumption

provided for in Section 1 of this Rule may be overcome by
evidence of the untrustworthiness of the source of information
or the method or circumstances of the preparation,
transmission or storage thereof.
RULE 9
Method of Proof
SECTION 1. Affidavit evidence. All matters relating to the

admissibility and evidentiary weight of an electronic document
may be established by an affidavit stating facts of direct
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EVIDENCE
personal knowledge of the affiant or based on authentic records.

The affidavit must affirmatively show the competence of the
affiant to testify on the matters contained therein.
SECTION 2. Cross-examination of deponent. The affiant

shall be made to affirm the contents of the affidavit in open
court and may be cross-examined as a matter of right by the
adverse party.
RULE 10
Examination of Witnesses
SECTION 1. Electronic testimony. After summarily hearing

the parties pursuant to Rule 9 of these Rules, the court may
authorize the presentation of testimonial evidence by electronic
means. Before so authorizing, the court shall determine the
necessity for such presentation and prescribe terms and
conditions as may be necessary under the circumstances,
including the protection of the rights of the parties and
witnesses concerned.
SECTION 2. Transcript of electronic testimony. When

examination of a witness is done electronically, the entire
proceedings, including the questions and answers, shall be
transcribed by a stenographer, stenotypist or other recorder
authorized for the purpose, who shall certify as correct the
transcript done by him. The transcript should reflect the fact
that the proceedings, either in whole or in part, had been
electronically recorded.
SECTION 3. Storage of electronic evidence. The electronic

evidence and recording thereof as well as the stenographic
notes shall form part of the record of the case. Such transcript
and recording shall be deemed prima facie evidence of such
proceedings.
RULE 11
Audio, Photographic, Video, and Ephemeral Evidence
SECTION 1. Audio, video and similar evidence. Audio,

photographic and video evidence of events, acts or
transactions shall be admissible provided it shall be shown,
presented or displayed to the court and shall be identified,
explained or authenticated by the person who made the
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recording or by some other person competent to testify on the

accuracy thereof.
SECTION 2. Ephemeral electronic communications.

Ephemeral electronic communications shall be proven by the
testimony of a person who was a party to the same or has
personal knowledge thereof. In the absence or unavailability of
such witnesses, other competent evidence may be admitted.
A recording of the telephone conversation or ephemeral

electronic communication shall be covered by the immediately
preceding section.
If the foregoing communications are recorded or

embodied in an electronic document, then the provisions of
Rule 5 shall apply.
RULE 12
Effectivity
SECTION 1. Applicability to pending cases. These Rules

shall apply to cases pending after their effectivity.
SECTION 2. Effectivity. These Rules shall take effect on the

first day of August, 2001 following their publication before the
20th of July, 2001 in two newspapers of general circulation in
the Philippines.
C. The Electronic Commerce Act, Rep. Act No. 8792180
1. Implementing Rules and Regulations of the Electronic Commerce Act
2. Implementing Rules and Regulations on Electronic Signatures
3. Joint DTI-DOST Department Administrative Order No. 02 Providing

Implementing Rules and Regulations of Electronic Authentication and
Electronic Signatures
180
SECTION 42. Effectivity. This Act shall take effect immediately after its publication in
the Official Gazette or in at least two (2) newspapers of general circulation. Approved: June
14, 2000; Published in Malaya and Philippine Post on June 19, 2000. Published in the Official
Gazette, Vol. 96 No. 48, page 7675 on November 27, 2000.
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The full text of the foregoing law, together with its implementing
rules and regulations and Administrative Order No. 2, are all appended to
this work and in the CD version of the bench book.
181
D. Rule on DNA Evidence
SECTION 1. Scope. This Rule shall apply whenever DNA

evidence, as defined in Section 3 hereof, is offered, used, or
proposed to be offered or used as evidence in all criminal and civil
actions as well as special proceedings.
As gatekeepers of evidence and, more importantly, as fact-finders

and initial decision-makers in the Philippine legal system, trial judges are
tasked with ascertaining the admissibility of expert evidence, including
testimony on DNA test results and, thereafter, assessing their credibility.
In performing these tasks, trial judges should not only be aware of the
underlying technology of DNA evidence and its real significance but, more
importantly, should be given prescribed parameters on the requisite
elements for reliability and validity (i.e., the proper procedures, protocols,
necessary laboratory reports, etc.), the possible sources of error, the
available objections to the admission of DNA test results as evidence, as
well as the probative value of DNA evidence.182
We have now the facility and expertise in using DNA test for
identification and parentage testing. The University of the Philippines
Natural Science Research Institute (UP-NSRI) DNA Analysis Laboratory
has now the capability to conduct DNA typing using short tandem repeat
(STR) analysis. The analysis is based on the fact that the DNA of a
child/person has two (2) copies, one copy from the mother and the other
from the father. The DNA from the mother, the alleged father, and child
are analyzed to establish parentage.183
A person may be compelled to submit to fingerprinting,

photographing, paraffin, blood and DNA, as there is no testimonial
compulsion involved.184
In case proof of filiation or paternity would be unlikely to

satisfactorily establish or would be difficult to obtain, DNA testing, which
examines genetic codes obtained from body cells of the illegitimate child
181
A.M. NO. 06-11-5-SC, effective October 15, 2007.
182
The Court Systems Journal, Vol. 12, No. 3, September 2007, p. 74.
183
Tijing, et al v. CA, et al., G.R. No. 125901, March 8, 2001, 354 SCRA 17, 26.
184
People v. Yatar, G.R. No. 150224, May 19, 2004, 428 SCRA 504, 518.
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EVIDENCE
and any physical residue of the long dead parent, could be resorted to. A
positive match would clear up filiation or paternity.185
DNA print or identification technology has been advanced as a

uniquely effective means to link a suspect to a crime, or to exonerate a
wrongly accused suspect, where biological evidence has been left. For
purposes of criminal investigation, DNA identification is a fertile source of
both inculpatory and exculpatory evidence. It can assist immensely in
effecting a more accurate account of the crime committed, efficiently
facilitating the conviction of the guilty, securing the acquittal of the
innocent, and ensuring the proper administration of justice in every
case.186
SECTION 2. Application of Other Rules on Evidence. In all

matters not specifically covered by this Rule, the Rules of Court
and other pertinent provisions of law on evidence shall apply.
SECTION 3. Definition of Terms. For purposes of this Rule, the

following terms shall be defined as follows:
(a) "Biological sample" means any organic material

originating from a person's body, even if found in inanimate
objects, that is susceptible to DNA testing. This includes
blood, saliva and other body fluids, tissues, hairs and bones;
(b) "DNA" means deoxyribonucleic acid, which is the chain

of molecules found in every nucleated cell of the body. The
totality of an individual's DNA is unique for the individual,
except identical twins;
(c) "DNA evidence" constitutes the totality of the DNA

profiles, results and other genetic information directly
generated from DNA testing of biological samples;
(d) "DNA profile" means genetic information derived from

DNA testing of a biological sample obtained from a person,
which biological sample is clearly identifiable as originating
from that person;
(e) "DNA testing" means verified and credible scientific

methods which include the extraction of DNA from biological
samples, the generation of DNA profiles and the
185
Tecson, et al., v. COMELEC, et al., G.R. No. 161434, March 3, 2004, 424 SCRA 277, 345.
186
People v. Yatar, supra note 184 at 514 reiterated in People v. Umanito, G.R. No. 172607,
October 26, 2007, 537 SCRA 553, 560.
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EVIDENCE
comparison of the information obtained from the DNA

testing of biological samples for the purpose of determining,
with reasonable certainty, whether or not the DNA obtained
from two or more distinct biological samples originates from
the same person (direct identification) or if the biological
samples originate from related persons (kinship analysis);
and
(f) "Probability of Parentage" means the numerical estimate

for the likelihood of parentage of a putative parent
compared with the probability of a random match of two
unrelated individuals in a given population.
DNA is an organic substance found in a persons cells which

contains his or her genetic code. Except for identical twins, each persons
DNA profile is distinct and unique.187
DNA is a molecule that encodes the genetic information in all living

organisms. A person's DNA is the same in each cell and it does not
change throughout a person's lifetime; the DNA in a person's blood is the
same as the DNA found in his saliva, sweat, bone, the root and shaft of
hair, earwax, mucus, urine, skin tissue, and vaginal and rectal cells. Most
importantly, because of polymorphisms in human genetic structure, no two
individuals have the same DNA, with the notable exception of identical
twins.
DNA evidence collected from a crime scene can link a suspect to a

crime or eliminate one from suspicion in the same principle as fingerprints
are used. Incidents involving sexual assault would leave biological
evidence such as hair, skin tissue, semen, blood, or saliva which can be
left on the victim's body or at the crime scene. Hair and fiber from clothing,
carpets, bedding, or furniture could also be transferred to the victim's body
during the assault. Forensic DNA evidence is helpful in proving that there
was physical contact between an assailant and a victim. If properly
collected from the victim, crime scene or assailant, DNA can be compared
with known samples to place the suspect at the scene of the crime.188
SECTION 4. Application for DNA Testing Order. The

appropriate court may, at any time, either motu proprio or on
application of any person who has a legal interest in the matter in
litigation, order a DNA testing. Such order shall issue after due
hearing and notice to the parties upon a showing of the following:
(a) A biological sample exists that is relevant to the case;
187
People v. Vallejo, G.R. No. 144656, May 9, 2002, 382 SCRA 192, 208.
188
People v. Yatar, supra note 184 at 514-515
F-71
EVIDENCE
(b) The biological sample: (i) was not previously subjected

to the type of DNA testing now requested; or (ii) was
previously subjected to DNA testing, but the results may
require confirmation for good reasons;
(c) The DNA testing uses a scientifically valid technique;
(d) The DNA testing has the scientific potential to produce

new information that is relevant to the proper resolution of
the case; and
(e) The existence of other factors, if any, which the court

may consider as potentially affecting the accuracy or
integrity of the DNA testing.
This Rule shall not preclude a DNA testing, without need of

a prior court order, at the behest of any party, including law
enforcement agencies, before a suit or proceeding is commenced.
When a crime is committed, material is collected from the scene of

the crime or from the victim's body for the suspect's DNA. This is the
evidence sample. The evidence sample is then matched with the
reference sample taken from the suspect and the victim.
The purpose of DNA testing is to ascertain whether an association

exists between the evidence sample and the reference sample. The
samples collected are subjected to various chemical processes to
establish their profile. The test may yield three possible results:
1) The samples are different and, therefore, must have originated from
different sources (exclusion). This conclusion is absolute and requires
no further analysis or discussion;
2) It is not possible to be sure, based on the results of the test, whether

the samples have similar DNA types (inconclusive). This might occur
for a variety of reasons, including degradation, contamination, or failure
of some aspect of the protocol. Various parts of the analysis might then
be repeated with the same or a different sample, to obtain a more
conclusive result; or
3) The samples are similar, and could have originated from the same
source (inclusion). In such a case, the samples are found to be similar,
the analyst proceeds to determine the statistical significance of the
similarity.189
189
People v. Vallejo, supra note 187 at 208-209.
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EVIDENCE
In Gan v. Pondevida,190 the Supreme Court affirmed the Court of

Appeals denial of petitioners Motion to Direct Parties to Submit to DNA
Testing since he had been long declared in default, precluding him to
present evidence on appeal.
The Supreme Court affirmed the order of the Court of Appeals

remanding the case to the trial court for DNA testing even if one of the
parties had died during appeal, citing Section 4 of this Rule. The Supreme
Court held that the death of the petitioner does not ipso facto negate the
application of DNA testing for as long as there exists appropriate biological
samples of his DNA.191
SECTION 5. DNA Testing Order. If the court finds that the

requirements in Section 4 hereof have been complied with, the
court shall
(a) Order, where appropriate, that biological samples be
taken from any person or crime scene evidence;
(b) Impose reasonable conditions on DNA testing designed

to protect the integrity of the biological sample, the testing
process and the reliability of the test results, including the
condition that the DNA test results shall be simultaneously
disclosed to parties involved in the case; and
(c) If the biological sample taken is of such an amount that

prevents the conduct of confirmatory testing by the other or
the adverse party and where additional biological samples
of the same kind can no longer be obtained, issue an order
requiring all parties to the case or proceedings to witness
the DNA testing to be conducted.
An order granting the DNA testing shall be immediately

executory and shall not be appealable. Any petition for certiorari
initiated therefrom shall not, in any way, stay the implementation
thereof, unless a higher court issues an injunctive order. The grant
of a DNA testing application shall not be construed as an
automatic admission into evidence of any component of the DNA
evidence that may be obtained as a result thereof.
SECTION 6. Post-conviction DNA Testing. Post-conviction DNA

testing may be available, without need of prior court order, to the
prosecution or any person convicted by final and executory
judgment provided that (a) a biological sample exists, (b) such
190
Gan v. Pondevida, G.R. No. 145527, May 28, 2002, 382 SCRA 357, 361, 363.
191
Estate of Rogelio Ong v. Diaz, G.R. No. 171713, December 17, 2007, 540 SCRA 480, 497.
F-73
EVIDENCE
sample is relevant to the case, and (c) the testing would probably
result in the reversal or modification of the judgment of conviction.
SECTION 7. Assessment of Probative Value of DNA Evidence.

In assessing the probative value of the DNA evidence presented,
the court shall consider the following:
(a) The chain of custody, including how the biological

samples were collected, how they were handled, and the
possibility of contamination of the samples;
(b) The DNA testing methodology, including the procedure

followed in analyzing the samples, the advantages and
disadvantages of the procedure, and compliance with the
scientifically valid standards in conducting the tests;
(c) The forensic DNA laboratory, including accreditation by

any reputable standards-setting institution and the
qualification of the analyst who conducted the tests. If the
laboratory is not accredited, the relevant experience of the
laboratory in forensic casework and credibility shall be
properly established; and
(d) The reliability of the testing result, as hereinafter

provided.
The provisions of the Rules of Court concerning the

appreciation of evidence shall apply suppletorily.
The Vallejo standards, according to the Supreme Court, is that in

assessing the probative value of DNA evidence, courts should consider,
among others things, the following data: how the samples were collected,
how they were handled, the possibility of contamination of the samples,
the procedure followed in analyzing the samples, whether the proper
standards and procedures were followed in conducting the tests, and the
qualification of the analyst who conducted the tests.192
The science of DNA typing involves the admissibility, relevance and

reliability of the evidence obtained under the Rules. DNA profiling
requires a factual determination of the probative weight of the evidence
presented.193
The issue of DNA tests as a more accurate and authoritative

means of identification, than eyewitness identification, need not be
192
People v. Vallejo, supra note 187 at 209; See also Herrera v. Alba, supra at 212.
193
People v. Yatar, supra note 184 at 519.
F-74
EVIDENCE
belabored. The accused were all properly and duly identified by the
prosecutions principal witness.194
SECTION 8. Reliability of DNA Testing Methodology. In

evaluating whether the DNA testing methodology is reliable, the
court shall consider the following:
(a) The falsifiability of the principles or methods used, that is,

whether the theory or technique can be and has been tested;
(b) The subjection to peer review and publication of the

principles or methods;
(c) The general acceptance of the principles or methods by

the relevant scientific community;
(d) The existence and maintenance of standards and

controls to ensure the correctness of data generated;
(e) The existence of an appropriate reference population

database; and
(f) The general degree of confidence attributed to

mathematical calculations used in comparing DNA profiles
and the significance and limitation of statistical calculations
used in comparing DNA profiles.
SECTION 9. Evaluation of DNA Testing Results. In evaluating

the results of DNA testing, the court shall consider the following:
(a) The evaluation of the weight of matching DNA evidence

or the relevance of mismatching DNA evidence;
(b) The results of the DNA testing in the light of the totality
of the other evidence presented in the case; and that
(c) DNA results that exclude the putative parent from

paternity shall be conclusive proof of non-paternity. If the
value of the Probability of Paternity is less than 99.9%, the
results of the DNA testing shall be considered as
corroborative evidence. If the value of the Probability of
Paternity is 99.9% or higher, there shall be a disputable
presumption of paternity.
194
Andal, et al. v. People, G.R. Nos. 138268-69, May 26, 1999, 307 SCRA 650, 654.
F-75
EVIDENCE
In this age of genetic profiling and deoxyribonucleic acid (DNA)

analysis, the extremely subjective test of physical resemblance or
similarity of features will not suffice as evidence to prove paternity and
filiation before the courts of law.195
In [a] paternity test, the forensic scientist looks at a number of these

variable regions in an individual to produce a DNA profile. Comparing next
the DNA profiles of the mother and child, it is possible to determine which
half of the child's DNA was inherited from the mother. The other half must
have been inherited from the biological father. The alleged father's profile
is then examined to ascertain whether he has the DNA types in his profile,
which match the paternal types in the child. If the man's DNA types do not
match that of the child, the man is excluded as the father. If the DNA types
match, then he is not excluded as the father.
It is not enough to state that the child's DNA profile matches that of
the putative father. A complete match between the DNA profile of the child
and the DNA profile of the putative father does not necessarily establish
paternity. For this reason, following the highest standard adopted in an
American jurisdiction, trial courts should require at least 99.9% as a
minimum value of the Probability of Paternity ("W") prior to a paternity
inclusion. W is a numerical estimate for the likelihood of paternity of a
putative father compared to the probability of a random match of two
unrelated individuals. An appropriate reference population database, such
as the Philippine population database, is required to compute for W. Due
to the probabilistic nature of paternity inclusions, W will never equal to
100%. However, the accuracy of W estimates is higher when the putative
father, mother and child are subjected to DNA analysis compared to those
conducted between the putative father and child alone.
DNA analysis that excludes the putative father from paternity

should be conclusive proof of non-paternity. If the value of W is less than
99.9%, the results of the DNA analysis should be considered as
corroborative evidence. If the value of W is 99.9% or higher, then there is
refutable presumption of paternity. This refutable presumption of paternity
should be subjected to the Vallejo standards.196
Obtaining DNA samples from an accused in a criminal case or from

the respondent in a paternity case, will not violate the right against self-
incrimination. This privilege applies only to evidence that is
communicative in essence taken under duress.197
195
Cabatania v. Court of Appeals, et al., G.R. No. 124814, October 21, 2004, 441 SCRA 96,
105.
196
Herrera v. Alba, G.R. No. 148220, June 15, 2005, 460 SCRA 197, 209-211.
197
Herrera v. Alba, supra at 219.
F-76
EVIDENCE
SECTION 10. Post-conviction DNA Testing. Remedy if the Results

Are Favorable to the Convict. The convict or the prosecution
may file a petition for a writ of habeas corpus in the court of origin if
the results of the post-conviction DNA testing are favorable to the
convict. In case the court, after due hearing, finds the petition to be
meritorious, it shall reverse or modify the judgment of conviction
and order the release of the convict, unless continued detention is
justified for a lawful cause.
A similar petition may be filed either in the Court of Appeals

or the Supreme Court, or with any member of said courts, which
may conduct a hearing thereon or remand the petition to the court
of origin and issue the appropriate orders.
A new trial on the ground of post-conviction DNA testing is different

from a new trial under Rule 121, which is available only before final
judgment. Unlike a new trial under Rule 121, a new trial for post-
conviction DNA testing does not vacate the judgment of conviction, which
stands until recalled by the court as a result of the new trial. A new trial
after final conviction may be ordered only on the sole ground that DNA
testing will establish that the convicted felon could not have committed the
crime. Moreover, DNA testing must not have been available or possible
during the original trial.
However, such a remedy is sui generis to give the convicted felon a

chance to adduce DNA evidence until Rule 121 of the Revised Rules of
Criminal Procedure is revised anew.198
SECTION 11. Confidentiality. DNA profiles and all results or

other information obtained from DNA testing shall be confidential.
Except upon order of the court, a DNA profile and all results or
other information obtained from DNA testing shall only be released
to any of the following, under such terms and conditions as may be
set forth by the court:
(a) Person from whom the sample was taken;
(b) Lawyers representing parties in the case or action where

the DNA evidence is offered and presented or sought to be
offered and presented;
(c) Lawyers of private complainants in a criminal action;
(d) Duly authorized law enforcement agencies; and
198
In Re: The Writ of Habeas Corpus for Reynaldo de Villa, G.R. No. 158802, November 17,
2004, 442 SCRA 706, 734.
F-77
EVIDENCE
(e) Other persons as determined by the court.
Whoever discloses, utilizes or publishes in any form any

information concerning a DNA profile without the proper court
order shall be liable for indirect contempt of the court wherein such
DNA evidence was offered, presented or sought to be offered and
presented.
Where the person from whom the biological sample was

taken files a written verified request to the court that allowed the
DNA testing for the disclosure of the DNA profile of the person and
all results or other information obtained from the DNA testing, the
same may be disclosed to the persons named in the written
verified request.
SECTION 12. Preservation of DNA Evidence. The trial court

shall preserve the DNA evidence in its totality, including all
biological samples, DNA profiles and results or other genetic
information obtained from DNA testing. For this purpose, the court
may order the appropriate government agency to preserve the
DNA evidence as follows:
(a) In criminal cases:
i. for not less than the period of time that any person is
under trial for an offense; or,
ii in case the accused is serving sentence, until such

time as the accused has served his sentence; and
(b) In all other cases, until such time as the decision in the
case where the DNA evidence was introduced has become
final and executory.
The court may allow the physical destruction of a biological

sample before the expiration of the periods set forth above,
provided that:
(a) A court order to that effect has been secured; or
(b) The person from whom the DNA sample was obtained
has consented in writing to the disposal of the DNA
evidence.
F-78
EVIDENCE
SECTION 13. Applicability to Pending Cases. Except as

provided in Sections 6 and 10 hereof, this Rule shall apply to
cases pending at the time of its effectivity.
SECTION 14. Effectivity. This Rule shall take effect on October

15, 2007, following publication in a newspaper of general
circulation.
F-79

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What are the two main problems involved in the study of evidence?

What are the two main problems involved in the study of evidence?

What are the requirements for evidence to be considered admissible?

What are the requirements for evidence to be considered admissible?

EVIDENCE

I. WHEN EVIDENCE IS NECESSARY

Evidence is the means of proving the truth of a fact in judicial

There is a question of law if the issue raised is capable of being

II. ADMISSIBILITY OF EVIDENCE

A. Axiom of Admissibility of Evidence

Evidence is admissible when it is relevant to the issues and is

Collateral matters are those outside of the controversy or not

from the partys pleadings. It is allowed if it tends in any reasonable

Relevancy or materiality of evidence is a matter of logic, since it is

The opposites of the two requisites for admissibility of evidence, viz.,

B. Proper Presentation of Evidence

Every piece of evidence, regardless of its nature, requires certain

It is to be noted that there is now a preclusion rule.14 [N]o evidence

following cases: (a) those to be used on cross-examination or re-cross-

Object evidence must generally be marked (Exhibits A, B, etc.

Oral evidence is presented through the testimony of a witness.

However, the requirement of qualifying an expert witness may

(a) the adverse counsel stipulates on the experts

(b) the court takes judicial notice of the witness expertise,

It has been ruled that where the supposed experts testimony

Rule 132, Sec. 34 provides that the court shall consider no

The view can be advanced, however, that although the

therefore, that unlike documentary and object evidence which are

Documentary evidence is (1) marked; (2) identified as the

An instrument, document or paper which is required by law to

4. Jurisprudential guidelines on evidence admissible to establish

In People v. Pruna, 24 the Supreme Court set the following

1. The best evidence to prove the age of the offended

2. In the absence of a certificate of live birth, similar

3. If the certificate of live birth or authentic document is

a. If the victim is alleged to be below 3 years

4. In the absence of a certificate of live birth,

5. It is the prosecution that has the burden of

6. The trial court should always make a categorical

In Sierra v. People, 25 the Supreme Court held that it is the

C. Formal Offer of Evidence; Need for Statement of the Purpose of

Evidence not formally offered will not be considered by the court in

On the last hearing day allotted for each party, he is required to

The formal offer of ones evidence is deemed waived after failing to

The pre-trial guidelines and Rule 132, Sec. 35 jointly considered, it

The party desiring to make a written offer of evidence should,

A party makes a formal offer of his evidence by stating its

is offered. 31 Without a formal offer of evidence and, hence, without a

The trial court is bound to consider only the testimonial evidence

It must be stressed that there is a significant distinction between

Annexes attached to pleadings, if not offered formally, cannot be

1. Under the Rule on Summary Procedure, where no full blown trial is

3. Documents whose contents are taken judicial notice of by the court;

4. Documents whose contents are admitted by the parties;

5. Object evidence which could not be formally offered because they

6. In land registration, cadastral and election cases, naturalization and

III. MODES OF EXCLUDING INADMISSIBLE EVIDENCE

There are two ways of excluding inadmissible evidence. One is by