TESTIMONIAL EVIDENCE

PRESUMPTION IN FAVOR OF COMPETENCE OF A WITNESS

As a general rule, a person who takes the stand as a witness is presumed to be qualified to testify
and the party that desires to question such must make an objection as soon as the facts tending to
show incompetency are apparent.

Section QUALIFICATION OF WITNESS

20
1. All persons who can perceive, and perceiving; and
2. Can make known their perception to others.
3. Additional – must take either an oath or an affirmation.
4. Additional – must not possess any of the disqualifications imposed by
law or the rules.

ABILITY TO MAKE KNOWN PERCEPTION TO OTHERS

1. Ability to remember; and
2. Communicate what was remembered.

DEAF-MUTES
1. Understand and appreciate the sanctity of an oath;
2. Comprehend facts they are going to testify to; and
3. Communicate their ideas through qualified interpreter.

FACTORS THAT DO NOT AFFECT COMPETENCY

1. Religious belief;
2. Political belief;
3. Interest in the outcome of the case; and
4. Conviction of a crime unless provided by law.

DISQUALIFICATIONS
Section By reason of mental incapacity or immaturity
21
MENTAL INCAPACITY
 Those whose mental condition;
 At the time of their production for examination;
 Are incapable of intelligently known their perceptions to others.

MUST CONCUR
1. Incapable of intelligently making known his perception to others; and
2. Incapability must exist at the time of his production from examination.
 NOTE: Mental incapacity of a witness at the time of his perception of the
events subject of the testimony does not affect his competency as long as he is
competent at the time he is produced for examination.

MINORITY
 Children whose mental maturity is such as to render them incapable of
perceiving the facts respecting which they are examined and of relating
them truthfully.

MUST CONCUR
1. Incapable of perceiving the facts respecting which he is examined; and
2. Incapable of relating his perception truthfully.

CHILD WITNESS
 At the time of giving testimony is below the age of 18 years or over 18
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.
 Every child is presumed qualified to be a witness.
 Court shall conduct a competency examination of the child, motu
propio or on a motion of a party.
 Party seeking competency examination must present proof of necessity
of a competency examination, other than age.

Section Disqualification by reason of marriage

22 (Marital Disqualification or Spousal Immunity)

 During their marriage;

 Neither the husband nor the wife;
 May testify for or against the other without the consent of the affected
spouse;
 Exceptions:
o In a civil case by one against the other; or
o In a criminal case, for a crime committed by one against the
other or the latter’s direct descendants or ascendants.

REASONS
 Society’s interest to preserve marriage;
 Discourage commission of perjury.
 Identity of interest between the spouses;
 Prevent domestic disunion and unhappiness; and
 Danger of punishing one spouse through the hostile testimony of the
other.

NOTES
  Essential that they be validly married;
 Prohibited testimony in one that is given or offered during the
existence of the marriage.
 Prohibited only over the objection of the affected spouse, may be
waived.
 Exception do not apply to collateral relatives of either of the spouses.
 BY ESTRANGED SPOUSE – Where the marital and domestic
relations are so strained that there is no more harmony to be preserved
nor peace and tranquility fails.

Section Disqualification by reason of death or insanity of adverse party

23 (Dead man’s statute or Survivorship disqualification rule)

 Applies only to a civil case or special proceeding over the estate of a

deceased or insane person.

ELEMENTS:
1. The suit is upon a claim by the plaintiff against the estate of said
deceased or person of unsound mind;
2. The defendant in the case is the executor or administrator or a
representative of the deceased or the person of unsound mind;
3. The witness is the plaintiff, or an assignor of that party, or a person in
whose behalf the case is prosecutor; and
4. The subject of the testimony is as to any matter of fact occurring
before the death of such deceased person or before such person became
of unsound mind.

HOW TO APPLY
1. Know the parties;
2. Nature of the case;
3. Against the estate; and
4. Persons prohibited to testify.

NOTES
 When a counterclaim is set up by the administrator of the estate, the
case is removed from the operation of the “dead man’s statute.”
 Witnesses who testify on the basis of their knowledge of a transaction,
not based on their dealings with the deceased, are not barred.
 May be waived:
o Failing to object to the testimony;
o Cross-examining the witness in the prohibited testimony; or
o Offering evidence to rebut the testimony.

Section Disqualification by reason of privileged communication

24
A Marital privileged communications
 ELEMENTS
1. There must be a valid marriage between the husband and wife;
2. There is a communication received in confidence by one from the
other; and
3. The confidential communication was received during the marriage.

EXCEPTIONS
 In a civil case by one against the other; or
 In a criminal case, for a crime committed by one against the other or
the latter’s direct descendants or ascendants.

NOTES:
 Information acquired by a spouse before marriage, even if received
confidentially, will not fall under this rule (maybe Section 22)
 Made during and by reason of marital relations and is intended not to
be shared with others.

DISTINCTIONS – Section 22 and Section 24A

1. 24A refer to confidential info, 22 – no
2. 22 includes facts, occurrences or information prior to marriage; 24A
only confidential info during marriage
3. 24A may be used even after marriage
4. 22 required that the spouse for or against whom the testimony is
offered is a party to the action.

B Attorney-client privilege

REQUISITES
1. There must be a communication made by the client to the attorney, or
an advice given by the attorney to his client;
2. The communication or advice must be given in confidence; and
3. The communication or advice must be given either in the course of the
professional employment or with a view to professional employment.

NOTES
 Perfected attorney-client relationship is not required.

C Physician-patient privilege
 A person authorized to practice medicine, surgery or obstetrics cannot
in a civil case;
 Without the consent of the patient;
 Be examined as to any advice or treatment given by him or any
information ;
 Acquired in attending such patient in a professional capacity; and
 Would blacken the reputation of the patient.
 NOTES
 Applies to a civil case, whether the patient is a party or not.
 Applies to:
o Advice;
o Treatment; and
o Any information.
 Contractual relationship between doctor and patient not required.
 Privilege survives death of the patient.
 Maybe waived, express or implied.

D Priest/Minister-penitent privilege
 A minister or priest
 Without consent of the person making the confession
 Cannot be examined as to any confession made to or any advice
 Given by him in his professional character
 In the course of discipline enjoined by the church to which the priest or
minister belong.

NOTES
 Extends to both confession and advice given.
 Must be duly ordained or consecrated by his sect.
 Communication must be made pursuant to confessions of sins.

E Privilege communications to public officers

 A public officer cannot be examined during his term or afterwards
 As to communications made to him in official confidence
 When courts finds that the public interest would suffer by the
disclosure.

Presidential Communications Privilege

Executive privilege – The power of the government to withhold information

from the public, the courts, and the Congress.

For the claim of executive privilege to be invoked, there must be a formal

claim of the privilege.

RULES ON ELECTRONIC EVIDENCE

The confidential character of a privilege communication is not lost solely on
the ground that it is in the form of an electronic document.

Section Testimonial Privilege (Parental and Filial Privilege)

25
PARENTAL PRIVILEGE
A parent cannot be compelled to testify against his child or other direct
descendants.

FILIAL PRIVILEGE
A child may not be compelled to testify against his parents or other direct
ascendants.

EXCEPTIONS (Art. 215, Family Code) The descendant may be compelled:

a. When such testimony is indispensable in a crime committed
against said descendant; or
b. In a crime committed by one parent against the other.

NOTE
A person, however, may testify against his parents or children voluntarily but
if he refuses to do so, the rule protects him from compulsion.

OTHER PRIVILEGE MATTERS

a. Editors may not be compelled to disclose the source of published
news;
b. Voters may not be compelled to disclose for whom they voted;
c. Trade secrets;
d. Information contained in tax census returns; and
e. Bank deposits.
 ADMISSIONS AND CONFESSIONS
Admission – act, declaration or omission of a party as to relevant fact may be given in evidence
against him (Section 26);

Confession – declaration of an accused acknowledging his guilt of the offense charged, or of any
offense necessarily included therein may be given in evidence against him (section 33).

Note: an admission may either be express or implied but a confession should always be express.
: A confession may either be judicial or extrajudicial.

CLASSIFICATION OF ADMISSION:
1. Express admission – positive statement or act.

2. Implied – may be inferred from the declarations or acts of a person.

3. Judicial – made in the course of a judicial proceeding.

4. Extrajudicial – made out of court or even in a proceeding other than the one under
consideration.

5. Adoptive – person manifests his assent to the statements of another person.

a. Expressly agrees to or concurs in an oral statement made by another;

b. Hears a statement and later on essentially repeats it;

c. Utters an acceptance or builds upon the assertion of another;

d. Replies by way of rebuttal to some specific points raised by another but ignores further
points which he or she has heard of the other make; and

e. Reads and subsequently signs a written statement made by another.

NOTES:
1. Judicial confession may sustain conviction while extrajudicial confession will not be sufficient for
conviction unless corroborated by evidence of corpus delicti.

SECTION 27 (OFFER OF COMPROMISE)

Civil case Not an admission of any liability and not admissible in evidence against
the offeror.

Criminal case GR: Offer of compromise by the accused maybe received in evidence as
an implied admission of guilt.

Exceptions:
1. Quasi-offenses (criminal negligence); and
 2. Cases allowed by law to be compromised.

Plea of guilty Not admissible in evidence against the accused who made the plea.
later withdrawn
Unaccepted plea Not admissible
to a lesser offense

RES INTER ALIOS ACTA

- Things done between strangers ought not to injure those who are not parties to them.

- BRANCHES:

o Section 28 – Rights of a party cannot be prejudiced by an act, declaration or omission of

another.

 Exceptions:

 Section 29 – Admission by a co-partner or agent

o Requisites:

 The declaration or act of the partner or agent must

have been made or done within the scope of his
authority;

 Made during the existence of the partnership or agency;

 The existence of the partnership or agency is proven by

evidence other than the declaration or act of the
partner or agent.

Notes:

1. Any declaration made before or after existence of the

partnership or agency are not admissible against the
other partners or principal but remains admissible
against the partner or agent making the declaration.

2. Applies to joint owner, joint debtor or other persons

jointly interested with the party.

 Section 30 – Admission by a co-conspirator (exists when two or more

persons come to an agreement concerning the commission of a felony
and decide to commit it)

o Requisites:
  The declaration or act be made or done during the
existence of conspiracy;

 The declaration or act must relate to the conspiracy;

and

 The conspiracy must be shown by evidence other than

such declaration or act.

 Section 31 – Admission by privies (Privies are persons who are partakers

or have an interest in any action or thing, or any relation to another)

o Requisites:

 There must be an act, declaration or omission by a

predecessor-in-interest;

 Occurred while he was holding the title to the property;

and

 The act, declaration, or omission must be in relation to

the property.

o Section 34 – Evidence of previous conduct or similar acts at one time is not admissible to
prove that one did or did not do the same act at another time.

General rule: The law will not consider evidence that a person has done a
certain act at a particular time a probative of a contention that he has done
a similar act at another time.

When admissible:
1. Specific intent;
2. Knowledge;
3. Identity;
4. Plan;
5. System;
6. Scheme;
7. Habit;
8. Custom;
9. Usage; and
10. The like.
HEARSAY EVIDENCE
Section Hearsay Rule
36  Applies to both written and oral.
 Rests mainly on the ground that there is no opportunity to
cross examine the person to whom statements or writings are
attributed.
 Court is without the opportunity to test credibility.
 AFFIDAVIT: merely hearsay if the affiant or maker did not
take witness stand even if notarized.

WHEN: If the purpose is to prove the truth of the matter asserted.

ELEMENTS:
1. Out of court statement – implied here is the fact that the
witness has no personal knowledge of the matter testified to.
2. That the out of court statement is repeated and offered by the
witness in court to prove the truth of the matters asserted by
the statement.

WHY: To test credibility of witnesses.

EXAMPLES OF NON-HEARSAY EVIDENCE

 Where a statement is not offered for the truth of the matter
asserted but is offered for an evidentiary purpose, not
dependent on the truth of the matter.
 Not offered for the truth of the matter but only to show that it
was made; merely to show what was said.
 Shown for non-hearsay purpose like statements relating to the
state of mind of the declarant and relating to state of minds of
listeners (the effect of the declarant’s statement on the hearer
and why the listener acted in a particular manner).
 Independently relevant statements (IRS) – have relevance to
the issue from the mere fact that the words were spoken or
written irrespective of the truth or falsity of the assertion.
o CLASSIFICATION OF IRS
▪ First class
 Statements which are the very facts in
issue; and
 Statements which are circumstantial
evidence of the fact in issue.
▪ Second class
 Statement or a person showing his state
of mind;
 Statements of a person showing his
physical condition;
 Statements of a person from which an
inference may be made as to the state
of mind of another;
 Statements which may identify the
place, date and person in question; and
 Statements showing the lack of
credibility of a witness.
 EXCEPTIONS TO THE HEARSAY RULE
 Circumstantial guarantees of trustworthiness sufficient to justify non-production of
declarant in person
 Necessity
 Diminished risk of untrustworthiness because the motivation to lie is less
 No other better evidence is available to prove an act, such that their admissibility is
predicated on compelling necessity.
Section Dying declarations
37 1. Declaration made under the consciousness of an impending
death.
2. His death is the subject of an inquiry.
3. As evidence of the cause and surrounding circumstances of
his death.

ELEMENTS
1. The declaration concerns the cause and surrounding
circumstances of the declarant’s death;
2. Made when death appears to be imminent and the declarant is
under a consciousness of an impending death;
3. The declarant would have been competent to testify had she
or he survived; and
4. The dying declaration is offered in a case in which the subject
of inquiry involves the declarant’s death.

REASONS FOR ADMISSIBILITY

 Necessity, because the declarant’s death rendered it
impossible for him to take witness stand.
 Trustworthiness, because the declaration is made in extremity,
when the party is at the point of death, when every motive to
falsehood is silenced and the mind is induced by the most
powerful considerations to speak the truth.

OBJECTIONS
 Premised on requisites of admissibility under Section 37, Rule
130.

NOTES:
 Mere consciousness of death is not enough, must be conscious
of impending (near and certain, near at hand) death.
 The declarant, at the time of declaration, believed that he was
in a dying condition and had given up the hope of surviving.
 Consciousness of an impending death maybe established by
other circumstances.
 There is nothing in the rules that prohibits the admission of a
dying declaration that is favorable to the accused, it may be
introduced by him and are admissible in his favor.
 If the utterances of the victim could not be appreciated as a
dying declaration, his statements may still be appreciated as
part of res gestae.
ASSAILING A DYING DECLARATION
 May be attacked in the same manner as one would do to a
testimony in open court.
 Objecting counsel may demonstrate that the declarant has no
personal knowledge of the identity of the assailant.
 The declarant would not have been a competent witness even
if he had survived.
 Same rules applied in testing the credibility and testimony of
a witness in court.
Section Declaration against interest
38  The declaration was made by a person deceased or unable to
testify
 Against the interest of the declarant
 If the fact asserted in the declaration was at the time it was
made was so far contrary to the declarant’s own interest, that
a reasonable man in his position would not have made such
declaration unless he believed it to be true
 Maybe received in evidence against himself or his successors
in interest and against third persons.

NOTES
 Declarant knew that the statement was against his interest and
which he would not have made had it not been true.
 This exception will not apply where the declarant is available
as witness (must be dead or unable to testify).
 Declaration must be against interest.
Section Act or declaration about pedigree
39  The act or declaration of a person deceased or unable to
testify
 In respect to pedigree of another person related to him by
birth or marriage
 May be received in evidence
 Where it occurred before the controversy
 And, the relationship between the two persons is shown by
evidence other than such act or declaration.

REQUISITES
1. Declarant is dead or unable to testify;
2. The declarant is related by birth or marriage to the person
whose pedigree is in issue;
3. The declaration was made before the controversy; and
4. The relationship between the two persons is shown by
evidence other than such act or declaration.

PEDIGREE: Includes
 Relationship;
 Family genealogy;
 Birth;
 Marriage;
 Death;
 Dates when and the places where these facts occurred;
 Names of relatives; and
 Facts of family history intimately connected with pedigree.
Section Family reputation or tradition regarding pedigree
40  The reputation or tradition existing in a family
 Previous to the controversy
 In respect to the pedigree of any one of its members

Section Common reputation

41  Common reputation existing previous to controversy;
 Respecting facts of public or general interest more than 30
years old or respecting marriage or moral character;
 May be given in evidence.

INCLUDING: Monuments and inscriptions in public places.

Section Part of the res gestae
42
Res Gestae – Circumstances, facts and declarations that grow out of
the main fact and serve to illustrate its character and are so
spontaneous and contemporaneous with the main fact as to exclude
the idea of deliberation and fabrication.

TEST OF ADMISSIBILITY
Whether the act, declaration, exclamation is so intimately interwoven
with the principal fact or event that it characterizes as to be regarded
as a part of the transaction itself, and also whether it clearly negatives
any premeditation or purpose to manufacture testimony.
Spontaneous CHARACTERISTICS
Statements 1. There is a startling event or occurrence taking place;
2. A statement was made while the event is taking place, or
immediately prior to, or subsequent thereto;
3. The statement was made before the declarant had time to
contrive or devise a falsehood; and
4. The statement relates to circumstances of the startling event or
occurrence or that the statements must concern the occurrence
in question and its immediate attending circumstances.

BASIS OF ADMISSIBILITY
Anchored on the theory that the statement was uttered under
circumstances where the opportunity to fabricate is absent.

OBJECTIONS
 Standards set forth in Section 42.
 WON the event is a startling one, sufficient to disturb the
emotional and mental equilibrium of the average, reasonable
person.

NOTES
 Matter of judicial discretion.
 The statement must describe the event perceived.
 A declaration by a deceased person concerning the
circumstances of his death may not be considered a dying
declaration if it cannot be established that he uttered his
statement while conscious of his impending death but the
utterance of the victim made immediately after sustaining
injuries may be considered the “incident” speaking through
the victim.

WHEN
1. The principal act, the res gestae, is a startling occurrence;
2. The statements were made before the declarant had time to
contrive or devise a falsehood; and
3. The statements concern the occurrence in question and its
immediately attending circumstances.
 Verbal Acts VERBAL ACTS: Statements accompanying an equivocal act
material to the issue, and giving it legal significance.

REQUISITES
1. Principal act to be characterized must be equivocal;
2. The equivocal act must be material to the issue;
3. The statement must accompany the equivocal act; and
4. The statement gives a legal significance to the equivocal act.

Section Entries in the course of business (Business Records Rule)

43  Entries made at, or near the time of transactions to which they
refer
 By a person deceased or unable to testify, who was in a
position to know the facts therein stated
 May be received as prima facie evidence
 If such person made the entries in his professional capacity or
in the performance of duty
 In the ordinary or regular course of business or duty.

REQUISITES
1. The person who made the entry must be dead or unable to
testify;
2. The entries made at or near the time of the transactions to
which they refer;
3. The entrant was in a position to know the facts stated in the
entries;
4. The entries were made in his professional capacity or in the
performance of a duty; and
5. The entries were made in the ordinary or regular course of
business or duty.

RULES ON ELECTRONIC EVIDENCE

- Expressly exempt business records from the application of the
hearsay rule provided the mechanics of record-keeping of
such records are shown by the testimony of the custodian or
other qualified witnesses. The reliability of business records
is, therefore, presumed.
Section Entries in official records
44  Entries in official records;
 Made in the performance of his duty by a public officer of the
Philippines;
 Or by a person in the performance of a duty specially enjoined
by law
 Prima facie evidence of facts therein stated.

REQUISITES
1. The entry was made by a public officer or by another person
specially enjoined by law to do so;
2. It was made by the public officer, or by such other person in
the performance of a duty specially enjoined by law; and
3. The public officer or other person had sufficient knowledge of
the facts by him or her stated, which must have been acquired
by the public officer or other person personally or through
official information.
Section Commercial lists and the like
45  Evidence of statements of matters of interest to persons
engaged in an occupation contained in a list, register,
periodical, or other published compilation
 Admissible as tending to prove the truth of any relevant
matter so stated
 If that compilation is published for use by persons engaged in
the occupation and is generally used an relied upon by them
therein.
Section Learned Treatises
46
 A published treatise, periodical or pamphlet on a subject of
history, law, science, or art
 Admissible as tending to prove the truth of a matter stated
therein
 If the court takes judicial notice
 Or a witness expert in the subject testifies that the writer of
the statement in the treatise, periodical or pamphlet is
recognized in his profession or calling as expert in the subject.
Section Testimony or deposition at a former proceeding
47  Testimony or deposition of a witness deceased or unable to
testify
 Given in a former case or proceeding, judicial or
administrative
 Involving the same parties and subject matter
 May be given in evidence against the adverse party who had
the opportunity to cross examine him.

REQUISITES
1. The witness is dead or unable to testify;
2. His testimony or deposition was given in a former case or
proceeding, judicial or administrative, between the same
parties or those representing the same interests
3. Same subject matter although different cause of action;
4. Same issue testified to in the former case; and
5. The adverse party had opportunity to cross examine the
witness in the former case.
Rule on Examination Hearsay statement of child maybe admitted in evidence in any
of Child witness criminal or non-criminal proceeding.

REQUISITES
 Testimony is offered in child abuse cases;
 Statement made by the child is one describing any act or
attempted act of child abuse;
 Proponent shall make known to the adverse party the intention
to offer such statement and its particulars;
 If the child is available, the court, upon motion of adverse
party, require the child to be present at the presentation of the
statement for cross-examination; and
 If unavailable, the fact of such circumstance must be proved
by the proponent and the statement must be supported by
other admissible evidence.
OPINION EVIDENCE
Section GR: Opinion of witnesses is not admissible.
48 Exceptions:
1. Opinion of expert witness requiring special knowledge, skill,
experience or training which he is shown to possess (section
49);and
2. Opinion of ordinary witness for which proper basis is given,
regarding:
a. The identity of a person to whom he has adequate
knowledge;
 b. A handwriting with which he has sufficient familiarity;
and
c. Mental sanity of a person with whom he is sufficiently
acquainted.
d. He may also testify on his impressions of the emotion,
behavior, condition or appearance of a person. (Section
50)
REASON
It is for the court to draw conclusions from the facts testified to.

Section Opinion of Expert Witness

49  The Court is not bound by the expert opinion, it should weigh
such in the light of its own general knowledge and experience
upon the subject of inquiry.

Section Opinion or Ordinary Witness

50
CHARACTER EVIDENCE
 Character – aggregate of the moral qualities which belong to and distinguish an
individual person; the general result of ones distinguishing attributes.

Section GR: Character evidence not admissible.

51 Exceptions:
1. Criminal cases:
a. The accused may prove his good moral character which
is pertinent to the moral trait involved in the offense
charged.
b. Unless in rebuttal, the prosecution may not prove his
bad moral character which is pertinent to the moral trait
involved in the offense.
c. The good or bad moral character of the offended party
may be proved if it tends to establish in any reasonable
degree the probability or improbability of the offense
charged.
2. Civil cases
a. Admissible only when pertinent to the issue of character
involved in the case.
NOTES
  In criminal cases, the prosecution cannot prove the bad moral
character of the accused in its evidence-in-chief. It can only
do so in rebuttal. Thus, the prosecution must wait until the
accused puts his character in issue during the proceedings.

SEXUAL ABUSE SHIELD RULE

The following evidence is not admissible in any criminal proceeding
involving alleged child sexual abuse:
1. Evidence to prove that the alleged victim engaged in other
sexual behavior; and
2. Evidence offered to prove the sexual predisposition of the
alleged victim.

EVIDENCE OF GOOD CHARACTER OF A WITNESS

Not admissible until such character has been impeached.