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LEC NOTES EVIDENCE

Introduction and Rule 128

Atty. Jay Nakao

DEFINITIONS

Factum probandum – the ultimate facts to be proven or the proposition to be established

Example: “A” killed “B” with treachery

Factum probans – evidentiary facts, by which the factum probandum is established

Example: In the afternoon of February 8, 2023, “A” was heard to be saying he wants it
to be dark so he can surprise “B.” When darkness came, “A” approached
“B” and shot him from the back.

Fact-in-issue – Facts considered by the court to persuade them to reach a reasoned belief
upon a probandum

REVIEW OF RELEVANT DOCTRINES

1. One Day Examination of Witness Rule – Examination of witnesses MUST be

terminated within 1 day, inclusive of direct, cross, re-direct and re-cross examination.

2. Most important witness rule – judge can determine who are the most important
witnesses to be presented to limit corroborative witnesses

3. Viatory rights of a witness rule – The following witnesses cannot be compelled to

comply with the subpoena to attend trial: a) those residing 100 km from trial court; b) a
detention prisoner who has no permission from the court where his case is pending

4. Equipoise or equiponderance of evidence rule – When circumstances are capable of 2

or more inferences, that which favors the presumption of innocence must prevail

5. Fruit of the poisonous tree – if the warrant did not comply with the law or any subject of
an illegal search cannot be used as evidence against the accused

6. Doctrine of relaxed admissibility rule –

IN THE MATTER OF PETITION FOR WRIT OF AMPARO IN FAVOR OF

LILIBETH LADAGA; Ladaga vs. Major General Reynaldu Mapagu, GR 189689,
November 13, 2012, en banc: petitioners praying for the grant of the Writ of Amparo
must present substantial evidence to prove that the threats to their life, liberty, and
security are attributable to the unlawful acts or omissions by the government agents.

Jay Nakao Notes – Evidence – Rule 128 (without cases)

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7. Original document rule – if the subject of the inquiry is the contents of a document,
recording or photograph – no evidence shall be admissible other than the original
document itself (s.3, r.130)

8. Parol evidence rule – if the terms of a document is reduced in writing, it is deemed to

contain ALL the terms agreed upon between the parties and their successors in interest –
no evidence acceptable other than the contents of the written agreement (s.10, r.130)

9. Presumed identity approach or processual presumption – if a foreign law is not

pleaded or when pleaded, not proved, it shall be presumed to be the same as ours

10. Assumption of truth rule – When a motion to dismiss is filed, the material allegations in
the complaint are deemed hypothetically admitted

11. Res inter alios acta rule – the rights of a party cannot be prejudiced by an act,
declaration or omission of another – with exceptions s.29 r.130

12. Interlocking confessions – extrajudicial confessions made independently without

collusion, which are identical in their material respects and confirmatory – are admissible
as circumstantial evidence against their co-accused

13. Hypothetical admission rule – It is a hypothetical admission of the facts alleged in the
information. The fundamental test in determining the sufficiency of the material
averments in an Information is whether or not the facts alleged therein, which are
hypothetically admitted, would establish the essential elements of the crime defined by
law. Evidence aliunde or matters extrinsic of the information are not to be considered

14. BUBBLE BURST THEORY: The rule on presumption of law shall not apply in case
there is evidence to the contrary.

15. INDEPENDENT RELEVANT STATEMENT: Regardless of the truth or falsity of a

statement, when what is relevant is the fact that such statement has been made, the
hearsay rule does not apply and the statement may be shown. (Jose Espineli a.k.a Danilo
Espineli vs. People of the Philippines, G.R. No. 179535, June 9, 2014)

16. Parental Privilege Doctrine – no person can be compelled to testify against his parents

17. Filial privilege doctrine – no person can be forced to testify against his other direct
ascendants, children or other direct descendants. Doctrine not applicable to step-children
and step-parents

18. Spousal immunity – during their marriage, neither husband nor wife may testify for or
against the other, without the consent of the affected spouse

 Privileged communication rule of spouses – covers communication received in

confidence by one from the other during marriage – EXCEPT, civil or criminal action
by one against the other

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19. Dead Man Statute – if one party to the alleged transaction is precluded from testifying
by death, insanity, or other mental disabilities, the surviving party is not entitled to the
undue advantage of giving his own uncontradicted and unexplained account of the
transaction – REQUISITES:
 The witness is a party or assignor of a party to case or persons in whose behalf a case
in prosecuted.
 The action is against an executor or administrator or other representative of a
deceased person or a person of unsound mind;
 The subject-matter of the action is a claim or demand against the estate of such
deceased person or against person of unsound mind;
 His testimony refers to any matter of fact of which occurred before the death of such
deceased person or before such person became of unsound mind.

20. Attorney-client privilege – s.24, Rule 130

21. Doctor-patient privilege – s.24

22. Priest-penitent privilege – s.24

23. Presidential Privilege Communication – governmental privilege against public

disclosure with respect to state secrets regarding military, diplomatic and other national
security matters – basis separation of powers

24. Deliberative process privilege – matters taken up during arbitration proceedings cannot
be taken as evidence

25. Good Samaritan rule – offer to pay or payment of medical, hospital or other expense
occasioned by an injury is inadmissible as proof of civil or criminal liability for the injury

26. First hand (personal) knowledge rule – witness can only testify on matters of his
personal knowledge

27. Hearsay evidence – Statement OTHER THAN those made while testifying, offered to
prove the truth of the facts asserted therein – s.37, R.130

28. Incomplete testimony rule – When cross-examination is incomplete for causes

attributable to the party who offered the witness – the uncompleted testimony is
inadmissible

29. Revival of present memory rule – allowed to refresh his memory by showing any
anything written or recorded by himself (or under his supervision) when the fact occurred
or immediately thereafter

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30. Revival of past memory rule – a witness may testify from writing or record even if he
retains no recollection of the particular facts, if he is able to swear that the writing or
record correctly stated the transaction – but this must be received with caution

31. Laying the predicate or basis rule – before a witness can be impeached by prior
inconsistent statements, the past statements must be shown to him and he must be allowed
to explain them

32. Ancient document rule – 30 years admissibility of a document produced from a custody
from which it would be naturally found if genuine and that the same be unblemished by
any alteration or any circumstance of suspicion.

DUE PROCESS DOCTRINES

1. ALEJANO vs. PEOPLE (consolidated with Hubert Webb Case, GR 176389, December
14, 2010) –
ISSUE: Whether it violated the right of the accused to due process by the State’s failure
to preserve the semen specimen? No. While the loss of semen specimen was unfortunate,
it did not constitute a violation of Webbs rights under the prevailing legal standards.
There was absence of bad faith or deliberate suppression of evidence on the part of the
government, DNA testing was not yet available at the time; and that the accused did not
actively pursue the DNA testing in the earlier stages of the trial.

2. Is taking of DNA samples violative of the right against self-incrimination –

(Herrera vs. Alba, GR 148220, June 15, 2005) No. The right against self-incrimination
strictly applies to testimonial compulsion wherein an accused as provided under the Bill
of Rights cannot be compelled to testify against himself. The Court clarified that the
privilege against self-incrimination does not extend to physical evidence obtained from a
person’s body.

3. PARRAFIN TESTING OF PERSON UNDER INVESTIGATION –

(PEOPLE vs. FIELDAD, GR 196005, October 1, 2014) No right against self
incrimination is violated. The right against self-incrimination as constitutionally protected
applies only to testimonial compulsion not physical examination.

4. Post-Conviction DNA Testing – s.6, AM No. 06-11-5-SC, October 15, 2007 – DNA
Evidence Rule (s.6) – May be availed WITHOUT NEED OF A COURT ORDER
 There must be a biological sample
 Such sample must be relevant to the case
 Testing would probably result in the reversal or modification of the judgment of
conviction

5. Procedure for post-conviction DNA testing (s.10, AM 06-11-5-SC):

 File a Petition for Habeas Corpus before the court of origin or before CA or SC (or
any of its members)
 Action of CA or SC – may conduct a hearing or remand petition to the court of origin
 Requirement, results must be favorable to the convict

Jay Nakao Notes – Evidence – Rule 128 (without cases)

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RULE 128

KINDS OF EVIDENCE:

1. Object (s.1, R.130) – addressed to the senses of the court; tangible, viewed, exhibited
or demonstrated in open court

2. Documentary (s.2, r.130) – writings, recordings, photographs or other material

containing letters, words, sounds, numbers, figures, or their equivalent or other modes
of written expression
 Electronic document or electronic data message (not the same as electronic
evidence – s.2.h.R.2: Electronic Document Rule AM 01-7-01-SC) – information,
data, figures, etc or other modes of written expression by which a right is
established or an obligation extinguished – received, recorded, transmitted, stored,
etc or produced electronically
 Ephemeral electronic communication – telephone convo, text messages, chat
sessions, other electronic forms of communication the evidence of which is NOT
recorded or retained (s.1.k, R.2 – Electronic Document Rule: AM 01-7-01-SC)

3. Testimonial - oral evidence given by witness

4. Direct evidence – Proves the fact in issue

5. Circumstantial evidence – Series of facts from which the facts in issue can be
established by inference

SALVADOR vs PEOPLE, GR 164266, July 23, 2008 the SC affirmed that

circumstantial evidence is sufficient for criminal conviction if it forms an unbroken
chain leading to one fair and reasonable conclusion: that the accused is guilty to the
exclusion of others

6. Cumulative evidence – same kind and character

7. Corroborative evidence – merely supplements evidence already given

PEOPLE vs. MICHAEL ANDRES, GR 193184, February 7, 2011

A. the SC reiterates the presumption of regularity in the conduct of law enforcement

officers that they have acted within their duties unless the contrary is proved by clear
and convincing evidence.
B. While strict compliance is ideal in the chain of custody of seized items, in this case
allegedly is a prohibited drug, minor procedural lapses are excusable if the integrity and
the evidentiary value of seized items are preserved.

8. Relevant evidence – has a relation to the fact in issue

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TOMAS TAN vs JOSE HOSANA, GR 190846, February 3, 2016 While the DOAS
and SPA were void for being forged, these could still serve as prima facie evidence of
the consideration indicated therein. The SC reinforced that bare allegations cannot
substitute for concrete proof especially regarding payment claims.

9. Primary evidence – assures the greatest certainty of facts sought to be proved and does
not indicate the presence of other and better proof

10. Secondary evidence of the document – evidence other than the original document
itself

11. Evidence in chief – primary and main evidence presented by the parties to prove their
cause or defense

12. Newly discovered evidence – requisites (Motion for New Trial – Berry’s Rule):
 Discovered only AFTER trial
 Could not have been discovered at the trial with reasonable (due) diligence
 Material and impeaching and not merely cumulative or corroborative
 Must affect the merits of the case and produce a different result if admitted

HIERARCHY OF EVIDENTIARY VALUES

1. Proof beyond reasonable doubt – moral certainty in an unprejudiced mind
2. Clear and convincing evidence – establish a firm belief on the existence of the facts in
issue
3. Preponderance of evidence – that which is more convincing to the court as worthy of
belief than what is offered by the opposition a.k.a. greater weight of the credible evidence
4. Substantial evidence – that which a reasonable mind might accept as adequate to justify
a conclusion
5. **reasonable certainty of conviction (prosecutor’s determination of guilt)

COMMON SOURCES OF THE RULES OF EVIDENCE – pp. 73-74

1. Constitution – e.g. exclusionary rules, etc
2. AM 19-08-15-SC – 2019 Amendments to the Rules on Evidence

CONSTRUCTION OF THE RULES

1. Liberal construction (s.6, R.1)

2. TOMAS TAN vs JOSE HOSANA, GR 190846, February 3, 2016

SCOPE (s.2, rule 128): same in all courts except as otherwise provided

NOTES:

1. Rules on evidence will not apply to (suppletory only per s.4, r.1 – Civil Procedure):

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 Land registration
 Cadastral
 Naturalization
 Insolvency
 Labor and impeachment cases

2. Scope of DNA Evidence Rule (AM 06-11-5-SC) – ALL criminal, civil and special
proceedings whenever DNA evidence is offered (s.1)
 Rules on evidence shall apply on matters not covered by rules on DNA evidence
(s.2)

3. Electronic Evidence Rule (AM-01-7-01-SC) – ALL criminal, civil and special

proceedings whenever electronic document is offered
 Applies to ALL criminal, civil, quasi-judicial and administrative cases (s.2)

PEOPLE vs ENOJAS, GR 204894, March 10, 2014 this case reinforced that
ephemeral communications require competent testimony for authentication.

4. Judicial Affidavits Rule applies to ALL proceedings (s.1).

5. Judicial Affidavits Rule in criminal actions (s.9, JAR) –

 Where maximum penalty does not exceed 6 years
 Where accused agrees to the use of JA regardless of the penalty
 With respect to the civil action regardless of the penalties involved

6. When to submit the judicial affidavit of witnesses (s.9.b – JAR)

 5 days prior to pre-trial – all documentary or object evidence shall be attached to
JAR
 Accused – within 10 days from receipt attached with documentary and object
evidence

ADMISSIBILITY OF EVIDENCE (s.3, r.128)

1. When relevant to the issue
2. When not excluded by law, rules or Constitution

NOTES:

1. Relevant evidence, definition: Having a relation to the fact in issue

2. Incompetent evidence – see pp. 94-95 of text

3. TOMAS TAN vs. JOSE JOSANA (supra)

4. KINDS OF ADMISSIBILITY:
 Conditional admissibility – when at the time of its offer, it appears to be immaterial
or irrelevant; it can be admitted on condition that its materiality or relevancy would
appear when other facts are proved, otherwise it will be stricken out

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 Multiple admissibility – When it is relevant or material for 2 or more purposes, i.e.

dying declaration can also be admitted as part of the res gestae
 Curative admissibility – a party may introduce incompetent evidence where the
court has admitted the same kind when adduced by the adverse party – requisites:
a) When the incompetent evidence of the adverse party was seasonably objected
b) Objection was overruled and it will cause a plain and unfair prejudice on the
party against whom it was admitted

5. PEOPLE vs. PATRICK JOHN MERCADO, GR 218702, October 17, 2018

REQUIREMENTS FOR DYING DECLARATIONS:

 The declaration must concern the cause and surrounding circumstances of the
declarant's death.
 At the time the declaration was made, the declarant must be under the
consciousness of an impending death. There must be a fixed belief in inevitable
and imminent death must be entered by the declarant. It is the belief in impending
death and not the rapid succession of death in point of fact that renders the dying
declaration admissible. The test is whether the declarant has abandoned all hopes
of survival and looked on death as certainly impending.
 The declarant is competent as a witness had he survived. (in the absence of
evidence, presumption of competence)
 The declaration offered in a criminal case for homicide; murder, or parricide, in
which the declarant is the victim

AS PART OF THE RES GESTAE

Requisites:
 The principal act, the res gestae, is a startling occurrence;
 The statements were made before the declarant had time to contrive or devise; and
 The statements concern the occurrence in question and its immediately attending
circumstances

6. ADMISSIBILITY OF NEWLY DISCOVERED EVIDENCE

 Overview: As a rule, evidence cannot be considered if they were not pre-marked at
the preliminary conference and stated in the Pre-Trial Order. Motions for newly
discovered evidence are filed after trial but before judgment becomes final.

 REYNANTE TADEJA ET. AL. vs. PEOPLE, GR 145336, February 20, 2013

REQUIREMENTS FOR NEWLY DISCOVERED EVIDENCE TO BE

ADMISSIBLE:
a) It must be discovered after trial;
b) It could not have been discovered and produced at the trial even with the
exercise of reasonable diligence;
c) It is material, not merely cumulative, corroborative or impeaching; and
d) It is of such weight that it would probably change the judgment if admitted.

 BAYLOSIS vs. PEOPLE, GR 152119, August 14, 2007

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Circumstantial evidence if forming an unbroken chain leading to guilt, can sustain a

conviction

7. ADMISSIBILITY OF ELECTRONIC DOCUMENT

 To be admissible, it must comply with the rules on admissibility and authenticated
as under the Rules of Court (s.2, r.3 electronic evidence rule or AM 01-7-01-SC)
 Manner of authentication of private electronic document (s.2, r.5 electronic
evidence rule or AM 01-7-01-SC):
a) Proved by evidence that it had been digitally signed by the purported person
b) Evidence that other appropriate security procedures or devices were applied to
the document (hence, editable documents are questionable)
c) Other evidence showing its integrity and reliability

 RCBC BANKARD SERVICES CORP. vs. ORACION, GR 223274, June 19,

2019
Sec 2, Rule 5 of the Rules on Electronic Evidence sets forth the required proof
of authentication:
a) Proved by evidence that it had been digitally signed by the purported person
b) Evidence that other appropriate security procedures or devices were applied to
the document (hence, editable documents are questionable)
c) Other evidence showing its integrity and reliability

Sec.1 of Rule 9 of same rules also provides:

SECTION 1. Affidavit of evidence. - All matters relating to the admissibility

and evidentiary weight of an electronic document may be established by an
affidavit stating facts of direct 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.

 "Business Records as Exception to the Hearsay Rule" of Rule 8 of the Rules on

Electronic Evidence requires authentication by the custodian or other qualified
witness:

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.

 See ENOJAS decision on text messages – but this must be authenticated

8. AUDIO, PHOTOGRAPHIC, VIDEO EVIDENCE (s.1, r.11 AM 01-7-01-SC)

9. EPHEMERAL ELECTRONIC COMMUNICATION (EEC) –

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 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. (definition of terms, paragraph K)
 Note, if the evidence is stored/ recorded then it is an electronic document, per par h
 S.2, R.11 – the EEC must be proven by testimony of one of the parties or one who
has personal knowledge – in their absence, competent evidence
 Recorded phone conversations shall be deemed as audio evidence under s.1, r.11

10. Confidentiality of Birth Records – birth records cannot be admitted as evidence if

obtained in violation of s.24, Adm. Order 1, 1993. Records can only be obtained by:
 The person himself or person authorized by him
 Spouse, parent, direct descendant, guardian if he is a minor
 Court or proper public official when needed in judicial or other proceedings
 Nearest kin – if he is dead

11. USE OF DEPOSITIONS AS EVIDENCE (s.4, r.23)

 By the party taking the deposition – he can only use it in lieu of testimony in a
CIVIL CASE if:
a) witness is dead – note there is a process on perpetuation of testimony
b) witness resides at a distance more than 100 kilometers from the place of trial
c) witness is out of the Philippines
FOR (b) & (c) – unless they absence was procured by party offering the deposition
d) age, sickness, infirmity, or imprisonment;
e) party offering the deposition has been unable to procure the attendance of the
witness by subpoena – usually an adverse party, if not, may need to have the
witnessed declared as a hostile witness
f) upon application and notice

 by adverse party – they can use the deposition as admissions against the party
taking the deposition, or use it to impeach the deponent if offered to testify

12. Prosecutor cannot rule upon the admissibility of evidence since they are only concerned
with finding probable cause (Liza Masa vs. Judge Turla, GR 187094, Feb 15, 2017)

13. Exclusionary provisions under the Constitution

14. Evidentiary rules required by statute for certain crimes – Section 21 of RA 9165
 FRANKLIN B. VAPOROSO AND JOELREN B. TULIKLIK VS PEOPLE OF
THE PHILIPPINES, G.R. No. 238659, June 3, 2019

This was a case of a search incidental to an arrest where the accused was convicted
of illegal possession of dangerous drugs. At the onset, the initial body search after a
lawful arrest yielded nothing incriminating. However, at the second time, now in the
police station, the accused were frisked and sachets of shabu were found in their
possession.
The SC ruled that this search was invalid because it was neither contemporaneous
with the arrest nor conducted in the immediate vicinity violating the constitutional
safeguards against unreasonable searches.
The ruling reinforced that lawful arrest does not automatically validate subsequent
searches.

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 PEOPLE vs. TOMAWIS (G.R. No. 228890, April 18, 2018)

Inventory must be done at the scene, unless there are compelling reasons to do it
elsewhere. There were inconsistencies as to how the seized drugs were handled and
that the chain of custody was observed under section 21 of RA 9165. The inventory
form lacked critical details such as proper witness identification and timestamps.
The Court emphasized that the prosecution must explain every link in the chain of
custody to justify deviations from section 21.

INSULATING WITNESSES SHOULD BE PRESENT AT THE BUY-BUST

 Warrantless search of a public servant valid in work-related misconduct – Allowed.

POLLO vs. CONSTANTINO-DAVID, GR 181881, October 18, 2011

Although not explicitly written in the decision, this author is of the opinion that the
SC has completely sent a message out of this case that there is no reasonable
expectation of privacy over work-related tools or materials i.e., computers. In this
case, the court emphasized that the files originating from Pollo’s computer under his
direct control raise a presumption that he was responsible for their creation or use.

15. Evidence must be identified and pre-marked at the Pre-Trial

16. EVIDENCE OBTAINED IN VIOLATION RA 4200 (Anti-Wiretapping Law)

 RAMIREZ vs. COURT OF APPEALS (GR 93833 September 28, 2005) the SC
reiterated that the Anti Wiretapping law covers not only third persons but also
among the active participants of a conversation and that punishments for secretly
recording the same is in within the purview of the law.

 PEOPLE vs. NAVARRO (GR 121087, August 26, 1999) the ruling of the SC on
this case is that RA 4200 does not apply to conversations made in public spaces.
Stated otherwise, if and when an environment within which conversation or
communication where made does not reasonably expect of privacy, RA 4200 does
not operate.

17. Failed applications for discharge as state witness (s.17, r.119) – inadmissible against
the applicant/accused

18. Falsius in unos Falsius in Omnibus – PEOPLE vs. GALVES (GR 181827, February
2, 2011)

19. ALIBI – Alibi is inherently a weak defense since it is easy to fabricate and highly
unreliable

 Requisites before alibi can prosper – VICTOR RONDINA vs. PEOPLE (GR
179059, June 13, 2012) A. Physical Impossibility. This involves both
demonstrating both geographical distance and lack of access between the claimed
location and the crime scene. B. Corroboration and Credibility. An alibi is

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credible when corroborated by disinterested witnesses. C. Ill Motive Allegations.

When the victim’s testimony is incredible and not supported by evidence.

 Quantum of proof in proving alibi – clear and convincing evidence (People vs.
Lomaque, GR 189297, JUNE 5, 2013) alibi cannot prevail over the victim’s
testimony when the same is categorical, consistent, and detailed.

 Alibi must be established by other credible persons.

20. RECANTATION AFTER CONVICTION– Looked at with disfavor

 PEOPLE vs. LAMSEN (G.R. No. 198338, November 13, 2013)

Post-conviction recantations are viewed with extreme skepticism and rarely suffice
to overturn verdicts. The burden remains on the defense to demonstrate the
recantations credibility through rigorous scrutiny of timing, motive, and
corroborative evidence.

 But if there is recantation before cross-examination -

21. FRAME-UP – just like alibi

 Less plausible when corroborated by relatives or friends
 Frame-up must be established by clear and convincing evidence (People vs Gani,
GR 195523, June 5, 2013)

22. OUT OF COURT IDENTIFICATION

PEOPLE vs. PINEDA (GR 141644, May 27, 2004) the SC pointed out the unduly
suggestive method of identification of the accused where witnesses were only shown
two photographs whereby creating an impermissibly suggestive line up that singled out
accused Pineda. The limited selection in the presented photo (rogues) gallery failing to
meet the totality of circumstance test which requires fairness in the line up composition
and witness recall accuracy.

23. WHEN TO OBJECT (Section 36, Rule 132) –

 Objection to offer of evidence must be MADE ORALLY IMMEDIATELY AFTER
OFFER
 Objection to testimony of witness for lack of offer must be made immediately
before the witness begins to testify
 Objection to a question in the course of examination must be made orally
immediately when the ground becomes apparent

SECTION 4 – RELEVANCY; COLLATERAL MATTERS

1. Relevant evidence MUST:

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 Relation to the fact in issue

 Induce a belief in its existence or non-existence

2. Evidence on collateral matters – allowed ONLY when it tends in any reasonable

degree to establish the probability or improbability of the fact in issue

TEST OF RELEVANCY – logical connection between the fact offered and the fact to be
proved

Jay Nakao Notes – Evidence – Rule 128 (without cases)