Evidence

Question 1

What is evidence?

Answer 1

It is the means, sanctioned by these Rules, of ascertaining in a judicial proceeding the truth respecting a matter of fact. (Rule 128, Section 1)

Question 2

What are the requisites for admissibility of evidence? (2)

Answer 2

For evidence to be admissible, two elements must concur, namely:

1. the evidence is relevant (it must have such a relation to the fact in issue as to induce belief in its existence or non-existence); and
2. the evidence is not excluded by the Constitution, the law, or the Rules of Court or the evidence is competent.

Question 3

What is the distinction between (1) proof and (2) evidence.

Answer 3

The former (proof) is not the evidence itself. There is proof only because of evidence. It is merely the probative effect of evidence and is the conviction or persuasion of the mind resulting from a consideration of the evidence.

Proof is the effect or result of evidence, while (2) evidence is the medium of proof.

Question 4

What is the application of rules on evidence? (versus Rules on Electronic Evidence)

Answer 4

The application of the rules on evidence in the Rules of Court contrasts with the application of the Rules on Electronic Evidence.

While the definition of “evidence” under the Rules of Court makes reference ONLY to JUDICIAL proceedings, the provisions of the Rules on Electronic Evidence apply as well to QUASI-JUDICIAL and ADMINISTRATIVE cases. (Section 2, Rule 128)

Question 5

What is the difference between (1) direct evidence and (2) circumstantial evidence?

Answer 5

Direct evidence proves a fact without drawing any inference from another fact. When the court does NOT have to make an inference from one fact to arrive at a conclusion, the evidence is direct.

While circumstantial or indirect evidence is the exact opposite of direct evidence. When the evidence is circumstantial, a fact is established by making an inference from a previously established fact. In this type of evidence, the court used a fact from which an assumption is drawn. It refers to proof of collateral facts and circumstances wherein the existence of the main fact may be inferred according to reason and common experience.

In a criminal case, circumstantial evidence may be sufficient for conviction provided the following requisites concur:

(1) There is more than one (1) circumstance;
(2) The facts from which the inferences are derived are proven; and
(3) The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. A judgment of conviction based on circumstantial evidence can be sustained when the circumstances proved form an unbroken chain that results in a fair and reasonable conclusion pointing to the accused, to the exclusion of all others, as the perpetrator.

Question 6

What does burden of proof mean?

Answer 6

Burden of proof (or onus probandi) is the duty of a party to present evidence on the facts in issue necessary to establish his or her claim or defense by the amount of evidence required by law.

Burden of proof NEVER shifts.

Question 7

What is burden of evidence?

Answer 7

Burden of evidence is the duty of a party to present evidence to establish or rebut a fact in issue to establish a prima facie case.

Burden of evidence may shift from one party to the other in the course of the proceedings, depending on the exigencies of the case.

Question 8

What is a presumption? What are its kinds?

Answer 8

Presumption is an assumption of fact resulting from a rule of law which requires such fact to be assumed from another fact or group of facts found or otherwise established in the action. It is an inference of the existence or non-existence of a fact which courts are permitted to draw from proof of other facts.

Presumptions are classified into (1) presumptions of LAW and (2) presumptions of FACT.

Presumptions of LAW are, in turn, either conclusive or disputable. It is CONCLUSIVE when the presumption becomes irrebuttable upon the presentation of the evidence and any evidence tending to rebut the presumption is not admissible. Whereas, it is DISPUTABLE or REBUTTABLE if it may be contradicted or overcome by other evidence.

While, a presumption of FACT does NOT arise from any direction of law. It arises because reason itself allows a presumption from the facts.

Question 9

What is judicial notice and what is its function?

Answer 9

Judicial notice matters are those matters which the court may take cognizance of without evidence.

It takes the place of proof and is of equal force. Judicial notice displaces evidence and fulfills the purpose for which the evidence is designed to fulfill. Hence, it makes evidence UNNECESSARY.

Question 10

When does judicial notice become MANDATORY? Enumerate those matters which fall under this category. (9)

Answer 10

When the matter is subject to MANDATORY judicial notice, no motion or hearing is necessary for the court to take judicial notice of such matter because it is what it says it is - “mandatory”

The following are matters subject to MANDATORY judicial notice:

(1) existence and territorial extent of states;
(2) political history, forms of government and symbols of nationality of states;
(3) law of nations;
(4) admiralty and maritime courts of the worlds and their seals;
(5) political constitution and history of the Philippines;
(6) official acts of the legislative, executive, and judicial departments of the National Government of the Philippines;
(7) laws of nature;
(8) measure of time; and
(9) geographical divisions.

Question 11

When is judicial notice, on the other hand, DISCRETIONARY?

Answer 11

Under the principle of discretionary judicial notice, “A court may take judicial notice of matters which are (1) of public knowledge, (2) or are capable of unquestionable demonstration, or (3) ought to be known to judges because of their judicial functions.” (Section 2, Rule 129)

Question 12

When is a HEARING NECESSARY for a judicial notice?

Answer 12

During the pre-trial and the trial, the court, motu proprio or upon motion, shall hear the parties on the propriety of taking judicial notice of any matter.

Before judgment or on appeal, the court, motu proprio or upon motion, may take judicial notice of any matter and shall hear the parties thereon if such matter is decisive of a material issue in the case.

Question 13

What is a judicial admission?

Answer 13

It is an admission, oral or written, made by the party in the course of the proceedings in the same case, does not require proof. The admission may be contradicted only by showing that it was made through palpable mistake or that the imputed admission was not, in fact, made.

Question 14

What is a pre-trial agreement?

Answer 14

All agreements or admissions made or entered during the pre-trial conference shall be (1) reduced in writing and (2) signed by the accused and counsel, otherwise, they cannot be used against the accused. The agreements covering the matters referred to in Section 1 of this Rule shall be approved by the court.

Question 15

What is the “original document rule?”

Answer 15

Subject to certain exceptions, under the original document rule, when the subject of inquiry relates to the contents of a document, no evidence shall be admissible other than the original document itself.

In other words, one who wants to prove the contents of a document need to present the original document.

Where the purpose of the offeror is one other than to prove the contents of a document, compliance with the original document rule is NOT necessary.

The key, therefore, to understanding of the original document rule is simply to remember that the rule cannot be invoked UNLESS the contents of a writing is the subject of judicial inquiry, in which case, the best evidence is the original writing itself.

Question 16

What is the concept of “authentication?”

Answer 16

It occupies a vital place in the presentation of evidence. Not only objects but also documents introduced in evidence need to be authenticated. It is the preliminary step in showing the admissibility of evidence.

For example, in order for a murder weapon found in the crime scene to be admissible in evidence it must be authenticated which means that it must be shown to the satisfaction of the court that the weapon presented in court as evidence is the very same weapon found at the crime scene. To convince the court, the proponent of the evidence must call someone to identify the weapon and affirm. When he/she affirms it as the same weapon, then the evidence is authenticated.

NOTE: Authentication of a private document does NOT require a seal. There shall be no difference between sealed and unsealed private documnet insofar as their admissibility as evidence is concerned.

Question 17

What is object evidence and what are its requisites for admissibility?

Answer 17

Object evidence refers to those addressed to the senses of the court. When an object is relevant to the fact in issue, it may be exhibited to, examined or viewed by the court.

The basic requisites for the admissibility of an object or real evidence are:

(1) The evidence must be relevant (it must have a relationship to the fact in issue);
(2) The evidence must be authenticated;
(3) The authentication must be made by a competent witness; and
(4) The object must be formally offered in evidence.

Question 18

What is chain of custody: (1) in general and (2) in drug cases?

Answer 18

(1) In general:

When the object evidence is not readily identifiable, were not made identifiable or cannot be made identifiable like drops of oil, drugs in powder form, fiber, grains of sand, and similar objects, the proponent of evidence must establish a chain of custody to authenticate the object in court especially because these objects are easily tampered, altered, or contaminated, whether intentionally or unintentionally.

In a nutshell, the chain of custody means that it must be established that the item subject of the offense is the same substance offered in court as exhibit or evidence.

(2) In Drug Cases:

In the Philippines, the confiscation and seizure of drugs require a stringent specific procedure to establish the chain of custody. The required procedure is embodied in Section 21, Art. II of R.A. No. 9165 or the Comprehensive Dangerous Drugs Act of 2002.

R.A. 9165 defines it as:

‘Chain of Custody’ means the duly recorded authorized movements and custody of seized drugs or controlled chemicals or plant sources of dangerous drugs or laboratory equipment of each stage, from the time of seizure/confiscation to receipt in the forensic laboratory to safekeeping to presentation in court for destruction. Such record of movements and custody of seized item shall include the identity and signature of the person who held temporary custody of the seized item, the date and time when such transfer of custody were made in the course of safekeeping and use in court as evidence, and the final disposition. (People v. Gayuso, GR No. 206590)

Question 19

What are the categories of object evidence?

Answer 19

For purposes of authentication of an object or for laying the foundation for the exhibit, object evidence may be classified into the following:

(1) Unique objects or objects that have readily identifiable marks;
(2) Objects made unique or objects that are made readily identifiable; and
(3) Non-unique objects or objects with no identifying marks.

Question 20

What are the links in the chain of custody and who are they (plus their roles)?

Answer 20

Since it is called a chain, there must be links to the chain who are the people who actually handled or had custody of the object. Each of the links in the chain must (1) show how he received the object, (2) how he handled it to prevent substitution, and (3) how it was transferred to another. Each of the handlers of the evidence is a link in the chain and must testify to make the foundation complete.

This is the ideal way to show chain of custody which is as follows:

(1) The seizure and marking of the confiscated drugs recovered from the accused, if practicable, by the apprehending officer;
(2) The turnover of the illegal drug seized by the apprehending officer to the investigating officer;
(3) The turnover by the investigating officer of the illegal drug to the forensic chemist for laboratory examination; and
(4) The turnover and submission of the marked illegal drug by the forensic chemist to the court.

Question 21

What is (1) parol evidence and (2) parol evidence rule (plus exceptions)?

Answer 21

(1) Parol Evidence: means something “oral” or verbal but, with reference to contracts, it means evidence which are outside of or extraneous to the written contract between the parties. It also called as evidence aliunde.

(2) Parol Evidence Rule: When the terms of an agreement have been reduced to writing, it is considered as containing all the terms agreed upon and there can be, as between the parties and their successors in interest, no evidence of such terms other than the contents of the written agreement.

EXCEPTION: However, a party may present evidence to modify, explain, or add to the terms of the written agreement if he or she PUTS IN ISSUE in a VERIFIED pleading:

(1) An intrinsic ambiguity, mistake, or imperfection in the written agreement;
(2) The failure of the written agreement to express the true intent and agreement of the parties thereto;
(3) The validity of the written agreement; or
(4) The existence of other terms agreed to by the parties or their successors in interest after the execution of the written agreement.

NOTE: The term “agreement” includes wills.

Question 22

What are (1) documentary evidence and (2) its requisites for admissibility?

Answer 22

(1) Documentary Evidence: consists of writings, recordings, photographs or any material containing letters, words, sounds, numbers, figures, symbols, or their equivalent, or other modes of written expression OFFERED AS PROOF OF THEIR CONTENTS. Photographs include still pictures, drawings, stored images, x-ray films, motion pictures or videos.

(2) To admissible as documentary evidence:

(a) The document must be relevant;
(b) The evidence must be authenticated;
(c) The document must be authenticated by competent witness; and
(d) The document must be formally offered in evidence.

Question 23

What does “original” mean under the Rules on Evidence?

Answer 23

According to Section 4 of Rule 130, Original of document means:

(a) An “original” of a document is the document itself or any counterpart intended to have the same effect by a person executing or issuing it. An “original” of a photograph includes the negative or any print therefrom. If data is stored in a computer or similar device, any printout or other output readable by sight or other means, shown to reflect the data accurately, is an “original.”

(b) A “duplicate” is a counterpart produced by the same impression as the original, or from the same matrix, or by means of photography, including enlargements and miniatures, or by mechanical or electronic re-recording, or by other equivalent techniques which accurately reproduce the original.

(c) A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances, it is unjust or inequitable to admit the duplicate in lieu of the original.”

Question 24

What is (1) secondary evidence applies and (2) when does it apply?

Answer 24

(1) Secondary evidence refers to evidence OTHER THAN the original instrument or document itself.

(2) Under Section 5 of Rule 130, secondary evidence may be admitted only by LAYING THE BASIS for its production. Specifically, laying such basis requires compliance of the following:

(a) The offeror must prove the execution or evidence of the original document;
(b) The offeror must show the cause of its unavailability such as the loss or destruction of the original;
(c) The offeror must show that the unavailability was not due to his bad faith; and
(d) The offeror must show that due diligence had been exercised in searching for it.

NOTE: The presentation of secondary evidence should be in the following order:

(a) a copy of the original;
(b) a recital of the contents of the document in some authentic document; or
(c) by the testimony of witnesses.

Accordingly, the correct order of proof is as follows: existence, execution, loss and contents.

Question 25

What are the distinctions between (1) original document rule and (2) parol evidence rule?

Answer 25

(1) The former (ODR) establishes a preference for the original document over a secondary evidence thereof. The latter (PER) is not concerned with the primacy of evidence but presupposes that the original is available.

(2) ODR precludes the admission of secondary evidence if the original document is available. Whereas, PER precludes the admission of other evidence to prove the terms of a document other than the contents of the document itself for the purpose of varying the terms of the writing.

(3) The former can be invoked by ANY litigant to an action whether or not said litigant is a party to the document involved. The latter can be invoked ONLY by the parties to the document and their successors-in-interest.

(4) ODR applies to ALL forms of writing. PER applies to WRITTEN AGREEMENTS (contracts) and “wills.”

Question 26

What is (1) ancient document and (2) what is its significance?

Answer 26

(1) A private document is considered as an ancient document when it is (1) MORE THAN 30 years old, (2) is produced from a custody which it would naturally be found if genuine, and (3) is unblemished by any alteration or circumstance of suspicion.

(2) Its significance is that when a document is ancient, evidence of its authenticity need NOT be given (there is no need to prove its genuineness and due execution). This means there is NO necessity for observance of the authentication process under Section 20 such as the testimony of the person who saw the document executed or by one who will show evidence of the genuineness of the handwriting of the maker of the document.

Question 27

What are the qualifications of a witness (Rule 35)?

Answer 27

The basic qualifications of a witness are the following, namely:

(1) He can perceive; and
(2) He can make known his perception to others.

In addition:

(1) He must take either an oath or an affirmation; and
(2) He must not possess any of the disqualifications imposed by law or the rules.

Question 28

What are the distinctions between (1) marital disqualification rule (Sec 23) and (2) marital privileged communication rule (Sec 24, a)?

Answer 28

(1) Section 24 (a) of Rule 130 has reference to confidential communications received by one spouse from the other during the marriage. The (1) marital disqualification rule under Sec 23 of Rule 130 does NOT refer to confidential communications between the spouses. It will NOT come into play when the fact pattern in a problem makes reference to confidential communications between husband and wife during marriage. Section 24 (a) of Rule 130 will, instead, APPLY.

However, communications that are not intended to be confidential because they were uttered in the presence of third parties are NOT deemed confidential even when made during the marriage, but Sec 23 could apply, instead of Sec 24 (a), when used as parts of a testimony for or against the party-spouse.

The (2) marital privileged communication rule in Sec 24 (a) applies ONLY to testimonies of a confidential nature received by one spouse from the other during the marriage and obviously does NOT include acts merely observed by the spouse unless such acts are intended as a means of conveying confidential communication by one to the other.

(2) Sec 23 of Rule 130 (Disqualification by reason of MARRIAGE) includes facts, occurrences or information even PRIOR to the marriage unlike Sec 24 (a) (Disqualification by reason of PRIVILEGED COMMUNICATION) which applies ONLY to confidential information received DURING the marriage. In this sense, the former is broader because it prevents testimony for or against the spouse on ANY fact and NOT merely a disclosure of confidential information.

(3) When Sec 24 (a) applies, the spouse affected by the disclosure of the information or testimony may object even AFTER the dissolution of the marriage. The privilege does NOT cease just because the marriage has ended. Under Sec 23, on the other hand, the marital disqualification rule CANNOT be invoked once the marriage is dissolved. It may be asserted only DURING the marriage. In this sense, Sec 24 (a) is broader.

(4) Sec 23 requires that the spouse for or against whom the testimony is offered is a PARTY to the action. This is NOT required in Sec 24 (a) which applies REGARDLESS of whether the spouses are parties or not.

NOTE: In Sec 23, the prohibition is TESTIMONY for or against the other. In Sec 24 (a), what is prohibited is EXAMINATION of a spouse as to matters received in confidence by one from the other DURING the marriage.

Question 29

What are the kinds of examination (plus descriptions)?

Answer 29

The kinds of examination are as follows:

(1) Direct examination: It is the examination-in-chief of a witness by the party presenting him on the facts relevant to the issue. It is a procedure for obtaining information from one’s own witness in an orderly fashion. Its purpose is to elicit facts about the client’s cause of action or defense. This is subject to Judicial Affidavit Rule.

(2) Cross-examination: It is the examination of the witness by the adverse party after said witness has given his testimony on direct examination. It has two basic purposes: (1) To bring out facts favorable to counsel’s client NOT established by the direct testimony; and (2) To enable counsel to impeach or to impair the credibility of the witness. (Questions must be answerable by YES OR NO)

(3) Re-direct examination: It is the examination conducted AFTER the cross-examinaton of the witness. It is the examination of a witness by the counsel who conducted the direct examination. In here, the counsel may elicit testimony to correct or repel any wrong impression or inference that may have been created in the cross-examination. It may also be an opportunity to rehabilitate a witness whose credibility has been damaged.

(4) Re-cross examination: It is the examination conducted UPON THE CONCLUSION of the re-direct examination. Here, the adverse party may question the witness on matters stated in his re-direct exam and also on such matters as may be allowed by the court in its discretion.

Question 30

What are the (1) requisites and (2) definitions of extrajudicial and judicial admissions?

Answer 30

Extrajudicial admission

I. Requisites: (1) It must be voluntary; (2) must be made with the assistance of competent and independent counsel; (3) must be express; and (4) must be in writing.

II. Definition: It is a declaration made voluntarily and without compulsion or inducement by a person under custodial investigation, stating or acknowledging that he had committed or participated in the commission of a crime.

Judicial admission:

I. Requisites: (1) made by a party; (2) in the course of the proceedings; and (3) in the same case.

II. Definition: It is an admission, verbal or written, made by a party in the course of the proceedings in the same case, which dispenses with the need for proof with respect to the matter or fact admitted.

Question 31

(1) What is res inter alios acta and (2) what are the exceptions to it (first branch)?

Answer 31

(1) The expression if FULLY expressed reads: res inter alios acta alteri nocere non debet which literally means that “things done between strangers ought not to injure those who are NOT parties to them.” It has two branches namely:

(a) The rule that the rights of a party CANNOT be prejudiced by an act, declaration, or omission of another and
(b) The rule that 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.

(2) The first branch of the rule admits of certain exceptions, to wit:

(a) admission by co-partner or agent;
(b) admission by conspirator;
(c) admission by privies.

The basis for admitting the above admissions is that the person making the statement is under the same circumstances as the person against whom it is offered.

Question 32

What is hearsay evidence or when does an evidence become “hearsay?”

Answer 32

To constitute hearsay, there must be:

(1) an out-of-court statement, oral, written, or non-verb conduct, made by one OTHER THAN the one made by the declarant or witness testifying at the trial; and

(2) the out-of-court statement MUST BE OFFERED to prove the truth of the matter asserted in the out-of-court statement.

Question 33

What is a dying declaration or what are its elements?

Answer 33

It is a famous exception to the hearsay evidence rule. The following are the elements of a dying declaration:

(1) the declaration concerns the cause and the surrounding circumstances of the declarant’s death;
(2) it is 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 he or she survived; and
(4) the dying declaration is offered in a case in which the subject of inquiry involves the declarant’s death.

Question 34

What is the importance of offer of evidence?

Answer 34

Under the Rules of Court, the court shall consider NO evidence which has NOT been formally offered.

A formal offer is necessary since judges are REQUIRED to base their findings of fact and their judgment SOLELY and STRICTLY upon the evidence offered by the parties at the trial. To allow parties to attach their documents in their pleadings and expect the court to consider such as evidence, EVEN WITHOUT FORMAL OFFER AND ADMISSION, may draw UNWARRANTED consequences.