Evidence Midterm PDF

EVIDENCE l Midterm l Atty.
Joseph Randi Torregosa l For the exclusive use of EH 404 AY 2016-2017
Classification of Evidence Based on Form the photograph of the knife and this time it will be offered as
demonstrative evidence. What is offered is not the real object but
Classification of Evidence based on Form still an evidence of the existence of the knife.
1. Object Evidence – addressed to the senses of the court
2. Documentary Evidence – offered as proof of documents’ contents Important: Whether the evidence is real or demonstrative, it requires
3. Testimonial Evidence – witness’ reconstruction of past events to be authenticated. Only that there are different rules for the process.
conveyed to the court
Admissibility of Evidence
Important: The determination depends on the purpose for which
evidence is offered. It does not relate to physical form. A stone or paper Admissibility of Evidence
may either be documentary, object, or testimonial. It is indispensable to Just as any other evidence, object evidence must comply with certain
determine what specific type it is classified under as it is governed by requisites for their admissibility.
different rules.
Requisites:
1. Must be relevant (it must comply with the reqs of relevancy)
Object Evidence 2. Must be authenticated
Object evidence 3. Authenticated by a competent witness
This is for the purpose of allowing the court to view, examine, or observe 4. It must be formally offered
the evidence.
Important: As will be discussed later on, authentication is not a
Classifications: requisite for admissibility in drug cases. (See discussion on page 3)
1. Real Evidence Authentication, defined

2. Demonstrative Evidence The process of establishing in court that the thing presented is the very
3. Scientific Evidence thing that the proponent claims it to be. Simply stated, what we see is
what we get.
Real Object Evidence
If the proponent claims that the knife being offered is the knife
Real Object Evidence recovered in the scene of the crime, then that is exactly the purpose of
If it is the very thing subject of the case or the very thing used to prove authentication, and that is what the proponent must establish. In the
a fact in issue. interim, the possession and custody of the knife may have transferred
from one custodian to another but the chain of custody should be duly
Examples: accounted for. Otherwise, if there is breach of the chain of custody,
there is a failure of authentication. There is now doubt if the thing
(a) In an action for damages for physical injury, the injury, if offered presented in court is really the object that the proponent claims it to be.
in court for viewing, is the subject of the case and is thus, the real
object. The court will appreciate it and fairly arrive at the amount
Chain of Custody
of damages for the victim.
Chain of Custody
Sir: But trial takes time, it then becomes impossible and This is one of the most important principle in authenticating evidence.
impracticable to produce the victim and exhibit his body before The application of this principle, however, is dependent on the kind of
the court. What will only remain there is a scar and no longer the real object evidence.
wound or the injury itself. Because of limitation of time, the real
object may not be the advisable choice. In this case, you may For purposes of authentication, real object evidence is also classified
resort to demonstrative evidence which could consist of a into three kinds:
photograph of the injury taken immediately after the incident. As
between the scar and the photograph, the latter is more 1. Identifiable Object – those objects which have peculiarities.
convincing to the court.
Ex: Handgun with a serial number.
Instead of bringing to the court the person suffering the actual
injury, in practice, the existence and extent of the injury may be 2. Non-identifiable but can be made identifiable – objects which
proved by other evidence. Not the real object but demonstrative exhibit similar or identical physical attributes or conditions as the
as in the case of photograph or testimony witnesses like the rest of objects of the same kind. These are non-identifiable that
physician who attended the victim including the corresponding can be made identifiable by placing distinguishing marks.
medical report. The medical report is part of the testimony. So in
that respect, the report can be considered as testimonial Ex: Fan Knife – placing of initials
evidence. Presentation of the real object could be more dramatic.1
3. Inherently Unidentifiable – that which cannot be distinguished.
(b) In a prosecution for murder, the knife there is the real object. But
if it cannot be presented during the trial, the option is to use of
1
If you watch American TV series, they have jury trial involving damage suits, the injured victim not here where it may result to an absurd situation where at the time of the trial the victim has
will really be brought to court and be viewed by the jury. This is to play up the case and in the already recovered, so how can damages be awarded.
hope of getting more damages. That applies in the US where the trial is immediately done and
1|U N I V E R S I T Y OF SA N C AR LOS
EVIDENCE l Midterm l Atty. Joseph Randi Torregosa l For the exclusive use of EH 404 AY 2016-2017
Ex: Blood, poison, liquid substances, powder. 2. Inventory and photograph-taking
Important: Chain of custody requirement is strictly applied in this Section 21, RA 9165 IRR
kind of evidence. (Inherently unidentifiable)
(a) The apprehending officer/team having initial custody and
For objects under the first two, it is not required that all the control of the drugs shall, immediately after seizure and
custodian or possessors of the item should be presented in court. confiscation, physically inventory and photograph the same in
But when it comes to the third type of evidence, the rule is that, the presence of the accused or the person/s from whom such
all the possessors who have handled the evidence should be items were confiscated and/or seized, or his/her
presented in court to authenticate. representative or counsel, a representative from the media
and the Department of Justice (DOJ), and any elected public
Example: Shabu official who shall be required to sign the copies of the
inventory and be given a copy thereof.
Chain of custody requires strict compliance. All custodians should
testify in court for authentication. Otherwise there would be breach Sir: All the seized items after being marked should be listed in the
in the link, and there is failure to comply with the chain of custody. inventory receipt, signed by all those involved (accused, witnesses,
This is fatal because this will result in the failure of the prosecution officer who conducted the inventory of the items). Witnesses and
to prove the identity or corpus delicti of the drugs subject of the the accused should be given copy of the inventory.
case. There is a serious doubt that the shabu presented in court is
the shabu that the prosecution claims to have been recovered from If the accused refuses to sign, officer conducting the inventory
the suspect. Presence of that doubt means acquittal.2 should indicate in the receipt that the accused refused to sign.
Chain of Custody Requirement for purposes of Drug cases Important: Inventory itself should show that witnesses were
(Section 21, RA 9165) given copies. Mere signature in the inventory receipt is not enough
because it merely signifies that they were present during the
1. Immediately upon seizure, the seizing officer should mark inventory, not proof that they received copies. So the inventory
the drugs. receipt should bear an indication that “Copies received by: _____”
The rules do not mention any specific time. Jurisprudence provides Venue for purposes of inventory
that “immediate marking” is done at the place of seizure.
Section 21, RA 9165 IRR
Requirement during marking: Provided, that the physical inventory and photograph shall be
conducted at the place where the search warrant is served; or at
People v. Larry Mendoza the nearest police station or at the nearest office of the
apprehending officer/team, whichever is practicable, in case of
The presence of the witnesses is required during the marking and
warrantless seizures.
more importantly even during the actual seizure or operation.3
GR: The Rule requires a specific venue. You cannot just conduct
Note: If asked to be the defense counsel, you can argue that there inventory anywhere. The Rule distinguishes:
were no witnesses during the actual seizure and no witnesses
during the actual marking. A. If seizure was effected with a warrant – at the place of seizure
B. If seizure was effected without a warrant – at the nearest
There is wisdom in the Mendoza doctrine. The SC said that the police station or at the office of the seizing officer, whichever
obvious purpose of Section 21, particularly the requirement on the
is practicable.
presence of the witnesses, is to prevent the planting of drugs, and
planting is most possible if done at the beginning of the operation,
XPN: Substantial compliance
before the witnesses are even called to the crime scene. So if the
witnesses are not required to be present during the actual seizure, Section 21, RA 9165 IRR
how could their presence prevent planting? They would not be in Provided, further, that non-compliance with these requirements
the position to guaranty that these items were really recovered under justifiable grounds, as long as the integrity and the
from the suspect. evidentiary value of the seized items are properly preserved by the
apprehending officer/team, shall not render void and invalid such
Important: Hence, their presence should be required during the seizures of and custody over said items.
seizure because it is only then that the purpose of Sec. 21 is
achieved.
2
One problem of the law enforcers is that in the course of the case, some custodians would 3
However, problem lies in the fact that the witnesses (elected official, media, DOJ) might not
disappear or be separated from the office and the prosecution could not present all the link in be willing to go with the police during the actual operations. Practice-wise, operatives cannot
the chain. Experience taught the police that limited operatives would be the custodians of the comply with Mendoza’s requirement.
items, so that during trial the prosecution would not have a difficulty because one person could
take care of everything.
The following requisites should be complied with: 3. The condition of the seized illegal drugs at the time he/she turned
this over to the succeeding possessor.
1. There should be a recognition or admission on the part of the
prosecution or the police that they failed to comply with Important: The purpose of these facts is to establish that the integrity
Section 21. and the probative value of the seized illegal drugs while in their
possession were duly preserved and the next possessor should also
2. They must be able to offer a justification for non-compliance.4 testify on the similar matters. The idea there is to maintain the strength
of each and every link.7
3. They must prove that the integrity and evidentiary value of
the seized illegal drugs are preserved. Q. What is the effect if the chain of custody requirement is not
duly established for one reason or another?
Q. What should be photographed in the photograph taking?
ANS: The Chain of Custody requirement as prescribed in Section 21 is a
ANS: The Rules only require that the evidence (the seized illegal drugs) whole process of authentication. Normally, failure to comply with the
should be photographed. It does not require that the suspect, the authentication requirement in so far as object evidence is concerned,
witnesses, or the police who participated in the operation should also be results in the evidence being inadmissible. But not in the case of illegal
photographed.5 drugs.
But there is a practical problem often encountered by police involved in In illegal drugs cases, failure to comply with the Chain of Custody
these operations. The Rule requires that these witnesses and the Requirement which results in the failure to comply with the
accused must be present in the conduct of the inventory and photograph authentication requirement, does not render the seizure illegal, neither
taking, but there’s only one inventory. When the Rule says, there should does it render the evidence inadmissible.
be these witnesses present, these witnesses should be present all at the
same time, when the inventory is conducted. But experience has it that Important: Failure to comply with this authentication process has
it is not easy to gather these witnesses all at the same time, and time is nothing to do at all with the issue of the admissibility of the seized illegal
of the essence.6 drugs. Section 21 is not a rule of exclusion. The only effect resulting
from noncompliance with Section 21 is that since there is no
Under this Rule, every movement of the seized illegal drug must be authentication, there is now doubt as to the identity of the illegal drugs
properly documented. And this ‘document’ referred to by the Rules is presented in Court. There is now doubt as to whether or not the illegal
called the “Chain of Custody Form”. drugs presented in Court are the very same illegal drugs that the
prosecution claims it to be.
In actual operation, every possessor of the seized illegal drug will
accomplish the Chain of Custody Form to document the movement of When there is failure to establish identity of the illegal drugs, there is a
the seized illegal drugs from one possessor to another. Failure to comply
failure to establish the corpus delicti. Therefore, there is failure to
with the Chain of Custody requirement could again be a basis for establish the elements of the crime. Hence, there is no crime. Acquittal
acquittal because there is a breach of the chain.
is inevitable.
Q. How do you authenticate each and every link of the chain?

Failure to comply with Section 21 is not an issue of admissibility
ANS: Jurisprudence has it that those who have taken possession of the Even if there is failure to comply with Section 21 and the prosecution
seized items should testify on the following matters: offers in evidence the seized illegal drugs, you cannot object to its
admission because it is not one of the grounds in objecting admissibility.
1. The condition of the item at the time the possessor received it from You cannot also ask for suppression of the evidence on the ground of
the first possessor or in case of the first possessor, the condition non-compliance of Section 21 because it is not a rule of exclusion unlike
of the item at the time he recovered it. in other object evidence where normally, suppression of evidence is a
remedy.
2. How he handled the evidence or the seized illegal drugs while the
item was in his possession, the objective being to ensure that Illustration: Firearms were recovered in your residence without the
during the time the seized illegal drugs were in his possession, search warrant. These are object evidence but if these are recovered
tampering of the seized illegal drugs was impossible. without a search warrant and the situation does not also fall under the
valid warrantless search, these evidence are inadmissible pursuant to
4
Common justification offered but also commonly rejected, is the justification that when the were not actually present during the inventory because had they been there, then they would
operation was conducted, several neighboring residents gathered around the place that have been shown in the photograph. So, what would the police do now is not only take
endangered the safety and security of the raiding team. But this hardly holds water in Court photograph of the seized evidence but take photographs of everybody present (group picture).
because first, it’s easy to establish that there are several members of the raiding team. They
don’t just conduct this type of police operation with just two or three of them and they are also 6
So, to remedy the problem, which ended up not a remedy at all, the police would take individual
in full battle gear. Second, they could not sufficiently establish that these people who allegedly photographs. One photograph of the accused with the evidence, one photograph of the elected
gathered around the place committed overt acts that really endangered their security. They official with the evidence, one photograph of DOJ with the evidence, and one photograph of
must show that overt acts aimed at rescuing the suspects were committed. media with the evidence. So, there will be several photographs but individual photographs. It’s
possible that these were taken at different times and so a good defense counsel would also
5
But because of the creativity of some advocates, they will take advantage of the absence of capitalize on this. In the end the prosecution could not prove using photograph that these
photographs of the witnesses and the accused. Not because it is required, but because the witnesses where present all at the same time when the inventory was conducted.
absence of photographs of the witnesses could be an evidence that these witnesses were not
present during the inventory. So, the defense will dwell on these matters and the prosecution 7
So if you are the defense counsel, look for the Chain of Custody Form. You establish the identity
would often times object, “Your Honor, there is no requirement that photographs of the of the individuals who has taken possession of the seized illegal drugs in the course of the
witnesses should also be taken”. And the defense counsel would say, “I am not trying to prove operation. More often than not, operatives would also fail in this respect.
Your Honor that that’s required. What I’m trying to prove Your Honor is that these witnesses
the fruit of the poisonous tree doctrine. The common and most effective accused is absent during the identification proceedings, you can always
remedy available to the accused is to move for the suppression of these resort to demonstrative evidence consisting of the photographs of the
evidence seized so that they would not be considered in the preparation accused, which formed part of the records especially when the accused
of the complaint against the accused. So if these evidence are has posted bail bond. So, you can ask the witness to identify the
suppressed from the start, then the prosecution or the police cannot photograph. That is allowed. That is demonstrative evidence.
even dare to file a complaint against the suspect because they have no
goods to go forward with. Authentication of Demonstrative Object Evidence
But not in illegal drugs, even if it is not in compliance with Section 2 and Sir: This is answered in the cases of Sison v. People and Missouri v.
is found all over the evidence of record. This remedy is simply not Dayton.
available especially that under the provisions of RA 9165, where there
is this provision where the prosecutor can be held administratively or Sison v. People
criminally liable for dismissing cases on anti-illegal drug cases. So, the Facts: The case involved photographs which captured a mauling
mindset of the prosecutor is really to file and leave everything to the incident. During the trial for murder, these photographs were introduced
court to decide. Sad to say, this contributes to the problem of court but they were authenticated by a witness who was not the
congestion. photographer. So the authentication was questioned and the admission
of the photographs was objected to under the contention that there was
Q. So if it is an object evidence other than the illegal drugs and no proper authentication given that the witness was not the actual
it does not comply with the authenticity, then you can raise the photographer.
defense of inadmissibility. But for illegal drugs, you cannot
question the inadmissibility? Issue: Whether there is proper authentication of the photographs
presented as demonstrative evidence.
ANS: Yes. The evidence undergoes two stages – the admissibility stage
and the weight and sufficiency stage. Before an evidence can be
Ruling: Yes. The Supreme Court said that for purposes of authenticating
considered by the court, it has to pass the test of admissibility. If the demonstrative evidence like photographs, it is not required that the
evidence fails to comply with the authentication, normally, it cannot
photographer should be the one to authenticate, although it is ideal. Any
even pass the test of admissibility. But in illegal drugs cases, even if it witness who is familiar with the person, thing or event captured in the
fails to comply with authentication, that piece of evidence still is
photograph or the person, thing or event that the demonstrative
admissible but it will certainly not pass the test of weight and sufficiency evidence seeks to represent can be a competent witness. So, the witness
because it will not establish the elements of the crime which is the
who is present during the incident necessarily is familiar with the
corpus delicti. So, the practical effect there is that you just have to go incident being depicted now in the photograph.
forward with the trial.
The Supreme Court held:
If you happen to handle drugs cases, just tell your client, let’s just wait
until the case is filed in court and the battle is in the court. Forget about “The correctness of the photograph as a faithful representation of the
getting a dismissal on the prosecutor’s level because you cannot do that. object portrayed can be proved prima facie, either by (1) the testimony
When the trial proceeds, you have two options. of the person who made it or (2) by other competent witnesses, after
which the court can admit it subject to impeachment as to its accuracy.
You may resort to filing of demurrer to evidence. This is done after the Photographs, therefore, can be identified by the photographer or by any
prosecution has presented the evidence and rested its case. Demurrer other competent witness who can testify to its exactness and accuracy.”
to evidence is akin to a motion to dismiss. This is based on the ground
of insufficiency of evidence and that the prosecution is unable to prove Missouri v. Tatum
the guilt of the accused by proof beyond reasonable doubt and
therefore, since the burden rests with the prosecution, the accused need Facts: The photograph in this case is captured with a so-called
not come forward with its defense. The case may be dismissed.8 “regiscope” machine. The accused was photographed from his waist up
at that time when he encashed the check that he stole from the
complainant. The photographs were presented and authenticated by the
Real Demonstrative Evidence saleslady who dealt with the accused at the time of the encashment.
Demonstrative Evidence This was objected to on the ground that there was no competent witness
Demonstrative are the so-called substitutes or the representation of the who authenticated the photographs.
real. In the case of a murder weapon, the photograph of the murder
weapon. In cases involving robbery or theft, the photograph of the Issue: Whether the objection was proper.
stolen item. The stolen item itself is the real object while the photograph
of the stolen item is the demonstrative evidence. The photograph of the Ruling: No. The saleslady was a competent witness. Although the
suspect is a demonstrative. photographer is an ideal witness, anyone who is familiar with the
person, thing or event depicted in the photograph can be a competent
There are cases especially in criminal cases where positive identification witness like the saleslady being the one who personally dealt with the
is required. This can easily be achieved if the accused is present in the suspect when the encashment transpired.
courtroom. Your witness can just point him out to the court but if the
8
Or for financial reasons and if you are not in a hurry although your client is, you can go to full because the prosecution’s evidence is weak. It is pointless to proceed to trial when there is really
blown trial. You are also going to present your evidence. At least, you will have more appearance no evidence.
fees and then eventually later it will be dismissed, not because your evidence is strong but
The Supreme Court held: Important: Paraffin test is admissible in evidence but not conclusive.
By jurisprudence, the results of paraffin test, whether positive or
“The quantum of authentication required for admissibility of a negative is only corroborative, thus standing alone is not sufficient. It
photograph in evidence is simply that some witness (not necessarily the may be considered in light of other evidence and altogether can be
photographer) be able to give some indication as to when, where, and sufficient to support a conclusion.
under what circumstances the photograph was taken, and that the
photograph accurately portray the subject or subjects illustrated.” Corroborative Evidence
The result of paraffin test has only corroborative value. Thus, the claim
Scientific Evidence that the accused fired the gun and thereby killed the victim evidence as
testified by an eyewitness may be corroborated by the positive result of
Sir: Other than the demonstrative object evidence, we also have object paraffin test. On the other hand, if there is no eyewitness, then the
evidence of a special kind. absence of eyewitness can be strengthened by the negative result of
paraffin test.
Scientific Evidence
These are evidence which depend on skill, experience and special DNA Test
training of witnesses who are responsible for these types of scientific
evidence. The common types of scientific evidence in this jurisdiction DNA Evidence
may include: This is most relevant in cases where there are issues about identity, like
1. Lie detector or polygraph test in rape, murder, homicide, and paternity suits. This is based on scientific
2. Paraffin test fact that no two individuals have the same DNA profile except identical
3. DNA test twins.
Lie Detector or Polygraph Test Important: DNA has been accepted in our jurisdiction just recently. It
is governed by the Rules on DNA evidence (A.M. No. 06-11-5-SC).
Lie Detector or Polygraph test
Tijing v. CA
The test is premised on a scientific fact that the person who lies is likely
to exhibit physiological changes in his body. Most common of which is That DNA evidence is a helpful and useful tool in ascertaining truth was
the change in the pattern of breathing, the increase of blood pressure, recognized in this case. While DNA testing is not resorted to and was
eye movement, perspiration and other unusual behavioural not applied in this case, its evidentiary value and importance was
manifestations of the subject. recognized and resorting to DNA testing was encouraged for future
cases.
Important: But take note that by jurisprudence, the polygraph or lie
detector test has not gained acceptance in this jurisdiction especially in Facts: The case involves dispute over the identity of the child. Two
the scientific community and more so, with the court. Results of mothers were claiming to be the mother of the child.
polygraph or lie detector test in this jurisdiction is inadmissible in any
judicial proceedings. Ruling: In resolving issue, the judge resorted to conventional/tradition
method by comparing the physical characteristics or attributes or
Paraffin Test physical resemblance of the mother and child. However, while the court
used the conventional method, the court encouraged the use of DNA
Paraffin test evidence for future cases.
A test which establishes the presence or absence of nitrates in the
subject. This test is more relevant in cases involving homicide, murder “Parentage will still be resolved using conventional methods unless we
adopt the modern and scientific ways available. Fortunately, we have
where firing a firearm or a gun is involved. This would help establish the
identity of one responsible of firing the gun. now the facility and expertise in using DNA test for identification and
parentage testing. The courts should not hesitate to rule on the
Possible results and implications admissibility of DNA evidence. For it was said, that courts should apply
the results of science when competently obtained in aid of situations
A. Positive – a positive result in itself, it is not sufficient to support a presented, since to reject said result is to deny progress. Though it is
not necessary in this case to resort to DNA testing, in future it would be
conclusion. The presence of nitrates may be attributed to several
factors, such as the use of fertilizers, pharmaceutical products, useful to all concerned in the prompt resolution of parentage and
identity issues.”
fireworks, even peanuts, leguminous plants and beans.
People v. Vallejo
Thus, in case where the client is charged with murder and was
found to have positive result of paraffin test, you may want to This case involved rape with homicide of a 9 year old child. The court
establish as defense that the positive result is attributed to other found that the vaginal swabs taken from the victim yielded positive for
factors that the client usually eats peanut, or is a farmer and uses the presence of human DNA. Upon analysis by experts, they showed to
fertilizers in farming. DNA profile of appellant. Thus, the court affirmed the conviction of the
accused.
B. Negative – the absence of nitrates is not conclusive evidence that
the accused did not fire a gun. The negative result may also be People v. Yatar
attributed to several factors, e.g. washing of hands, profuse This case also involved rape with homicide. The DNA specimens of the
perspiration, direction of the wind and climate.
accused and the victim matched, thus the accused was convicted.
Q. When can DNA testing be resorted to? condition precedent should be applied in our jurisdiction to
protect the putative father from mere harassment suits. Thus,
1. Before the filing of the case during the hearing on the motion for DNA testing, the petitioner
must present prima facie evidence or establish a reasonable
DNA Testing can be resorted even without court order by any possibility of paternity.”
interested parties including law enforcement agencies.
Important: The requirement of prima facie case of paternity
2. During the case applies only in paternity suits. If the purpose is other than
paternity, it is enough to comply with the conditions.
DNA testing is only allowed with leave of court. It may be
resorted to by any person interested in the case or by the court Probative value of DNA Test insofar as paternity is
motu proprio. concerned
During the pendency of the case, the person who seeks to resort A. If the result is negative (–)
to DNA testing must comply with the conditions under Sec 4,
Rules on DNA evidence. These are: When there is no match at all between the DNA samples
such that the putative father could not be the biological
a) A biological sample exists that is relevant to the case. father of the child, then this is conclusive evidence of non-
paternity.
b) The biological sample: (i) was not previously subjected to
the type of DNA testing now requested; or (ii) was
B. If the result is positive (+)
previously subjected to DNA testing, but the results may
require confirmation for good reasons.
(a) Probability is less than 99.9% – it is corroborative
c) The DNA testing uses a scientifically valid technique. evidence of paternity.
d) The DNA testing has the scientific potential to produce new
It is admissible but standing alone is not sufficient to
information that is relevant to the proper resolution of the
establish paternity.
case.
e) The existence of other factors, if any, which the court may (b) 99.9% or more –disputable presumption of
consider as potentially affecting the accuracy of integrity of paternity.
the DNA testing.
People v. Umanito
Important: Compliance of these conditions is sufficient in Umanito was charged with rape and this resulted with the
cases involving identity other than paternity suits. birth of a child. His defense was he never had sexual relations
with the mother. On appeal, he resorted to DNA test. The
Requirements in establishing paternity Supreme Court ruled that if it can be established by DNA Test,
then it may alter the result of the case. It allowed the conduct
Lucas v. Lucas of DNA Testing remanded the case to the trial court. On trial,
In paternity suits, the proponent is required to establish the the result of the DNA yielded to 99.99% positive. Conviction
following for purposes of establishing paternity before an order affirmed.
allowing the conduct of DNA testing is granted:
The SC discussed:
1. Compliance of the conditions set forth under Section 4,
Rules on DNA evidence; and “With the advance in genetics and the availability of new
2. Reasonable possibility of paternity or prima facie case of technology, it can now be determined with reasonable
paternity. certainty whether appellant is the father of AAA's child. If he
is not, his acquittal may be ordained. We have pronounced
Sir: The proponent must establish the basis of his claim and why that if it can be conclusively determined that the accused did
he is claiming that the putative father is the biological father of not sire the alleged victim's child, this may cast the shadow
the child. The proponent must prove prima facie case of of reasonable doubt and allow his acquittal on this basis. If he
paternity. Or if the mother is claiming that the child she bore is is found not to be the father, the finding will at least weigh
the biological child of the putative father, the mother must heavily in the ultimate decision in this case.”
establish prior sexual relations. Then, the positive result of DNA
will corroborate the claim of paternity. 3. Post-conviction
In the same case, the court held: Rules:
“In cases in which paternity is contested and a party to the (a) It can only be availed of if the decision is for conviction and
action refuses to voluntarily undergo a blood test, a show cause cannot be availed of if the accused is acquitted.
hearing must be held in which the court can determine whether
there is sufficient evidence to establish a prima facie case which (b) Judgment must be final. His case can no longer be
warrants issuance of a court order for blood testing The same appealed but he has not yet duly served his sentence
(c) Can be resorted without leave of court either by the Documentary Evidence
accused or the prosecution.
Documentary evidence
(d) If post-conviction DNA is favorable to the accused, the
remedy is writ of habeas corpus. It can be filed in RTC, CA Rule 130, Sec. 2 of the ROC
or SC. It should order the release of the convict. Documents as evidence consist of writings or any material containing
letters, words, numbers, figures, symbols, or other modes of written
Rules on DNA Preservation expressions offered as proof of their contents.
Under the DNA rules, the court is legally mandated to preserve the DNA
sample within the given period. Important: Not all documents are documentary evidence. What makes
a document a documentary evidence is that it is offered as proof of the
A. In criminal cases – from the time of trial up to the time the sentence documents’ contents. If offered for something else, not documentary
has been fully served. evidence.
B. In all other cases – from the time of trial up to the time the decision Best Evidence Rule
shall have become final and executory.
Sir: One of the important exclusionary rules in documentary evidence is
Effect if court failed to preserve DNA Samples the Best Evidence Rule.
People v. Hubert Webb Best Evidence Rule

When the subject of the inquiry is the contents of the document, no
Taking cue from the case of Hubert Webb when the accused was evidence shall be admissible other than the original document. You
convicted by RTC, affirmed by CA but acquitted by the SC. One of the cannot present the substitute.
issues was the failure of the government to make accessible to the
defense DNA samples taken from the vaginal swabs of Carmela Important: This has nothing to do with probative value. It does not
Vizconde. necessarily mean that the original is wittier. It just presents a
preference. The original should take the front seat. If the original is not
During trial, prosecution moved for the conduct of DNA test. It was available, the second-seater can take the front seat. Either way, both of
denied by the judge. On appeal, they argued that the refusal of the state them can take the front seat.
to grant them DNA Test violates due process. The Supreme Court citing
Maryland v. Youngblood (American Jurisprudence), the due process Whether the secondary evidence can be admitted as evidence under the
clause in the Constitution does not require the state to make DNA conditions described, the secondary evidence is as good as the original
samples accessible to the defense except if the government is guilty of which is not presented for one reason or another.
bad faith.
It is not correct to say that the original is the most credible or most
In the case of Webb, the Supreme Court justified its ruling that there sufficient because that is not the purpose of the BER. It is merely an
was no violation of due process: order of presentation. If you have the original, present the original.
Otherwise, present the secondary.
1. At the time the accused moved for the conduct of the DNA test,
there was not yet rule that requires the State to preserve DNA Sir: Since BER provides the rule of preference in favor of the original, it
samples. is indispensable to know what an “original document” is.
2. The accused failed to pursue their motion to resort to DNA test
when it was denied by the trial court to the appellate court;
Original Document
deemed waiver
Original document
Important: With the current rules in DNA, the ruling in Webb no longer Refer to Section 4, Rule 140. It does not refer to the document first
applies. The rules in DNA now explicitly mandates the court to preserve produced because it is not a question of order in time.
DNA samples. Failure to comply with the requirement would result in
violation of due process. Three contexts of original under the rules:
Rule 140, Section 4. Original of document. —
(a) The original of the document is one the contents of which are the
subject of inquiry.
(b) 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.
(c) When an entry is repeated in the regular course of business, one

being copied from another at or near the time of the transaction,
all the entries are likewise equally regarded as originals.
1. The original of the document is one the contents of which But, the BER applies only when the terms of a writing are in
are the subject of inquiry. issue. When the evidence sought to be introduced concerns
external facts, such as the existence, execution or delivery of
It does not talk about the first document produced or created. What the writing, without reference to its terms, the BER cannot be
makes it original is the fact that its contents are the subject of invoked. In such a case, secondary evidence may be admitted
inquiry, regardless if it is not the first document produced. even without accounting for the original.
Important: It does not refer to a genuine document. For BER, a In this action for quieting of title, it is not denied that this does
falsified document can be an original document. A photocopy can be not involve the terms or contents of the deed of sale with right
an original document, so long as the contents are the subject of to repurchase. The principal issue raised by the respondents
inquiry. as the plaintiffs, which Prodon challenged head on, was
whether or not the deed of sale with right to repurchase, duly
Example: If there is a deed of sale, such is already one copy and is executed by the late Maximo Alvarez, had really existed.
original and genuine. However its photocopy was altered such that
it was already forged. In a prosecution for falsification, under the However, Prodon did not preponderantly establish the
BER, since the subject of the inquiry is the contents of the allegedly existence and due execution of the deed of sale with right to
falsified photocopy, then by definition it is the original document and repurchase. In contrast, the records contained ample indicia
thus should be presented. of the improbability of the existence of the deed.
Q. How to prove that it is falsified? Important: The purpose of the BER is to ensure that the
ANS: By presenting the original genuine and then the photocopy for exact wordings, terms and contents of the document must be
brought before the court. To ensure accuracy and precision.
purposes of comparison to establish falsification.
Accuracy and precision are important in disputes involving

Both can be considered original in this case and therefore, the
documents in their original state should be brought to court. contents of documents because even a slight difference in the
wordings, terms and contents could spell difference and
It cannot be a photocopy of the falsified photocopy, a photocopy of change the entire meaning of the document to the prejudice
of the parties. If there is a dispute as to the content, the Rule
the first genuine copy, or a testimony of any witness who may have
seen these documents because the rule requires that these original requires that evidence that could ensure accuracy. It seeks to
avoid the evils of inaccuracy and imprecision.9
documents in their original state should be presented.
There is no margin of inaccuracy if the original is presented

Purpose of the Best Evidence Rule
because you are dealing with the disputed document itself.
Heirs of Prodon v. Heirs of Alvarez
If instead of the original, witnesses come forward purporting
Facts: A complaint for quieting of title was filed against Margarita to prove the contents of the disputed document, with more
Prodon alleging that their parents were the registered owners of a reason that there is high risk of error from a witness testifying
land covered by a TCT but they could not locate the owner’s out of his memory. Witnesses can also be motivated by greed
duplicate copy of the TCT but the original copy on file with the RoD and deception which would influence the way they testify in
of Manila was intact. The original copy contained an entry stating court, wittingly or unwittingly, and they will not be testifying
that the property had been sold to defendant Prodon subject to the accurately. Furthermore, there is the possibility that the
right to repurchase; and that the entry had been maliciously done witnesses would not be able to convey to the court all the
by Prodon because the deed of sale with right to repurchase terms and contents of the document, but rather only a part
covering the property did not exist. thereof. This would be very dangerous since it could result to
undue and misleading inferences which are taken from the
Issue: Whether the pre-requisites for the admission of secondary incomplete contents.
evidence had been complied with.
So BER is designed to conquer the evils of mistransmission,
Ruling: The Best Evidence Rule was not applicable herein. BER fraud and misleading inferences by requiring the production
excludes any evidence other than the original writing to prove the of the original document itself.
contents thereof, unless the offeror proves:
2. When a document is in two or more copies executed at or
1. The existence or due execution of the original. about the same time, with identical contents, all such copies
2. The loss and destruction of the original or the reason for its are equally regarded as originals.
non-production in court.
3. The absence of bad faith on the part of the offeror to which Any of them may be presented for purposes of the BER, without
the unavailability of the original can be attributed. accounting for the others.
9
To achieve this purpose, the Rule requires the presentation of the original document, not its of the document manually, there is risk of erroneous transmission). If the copy is allowed to be
copy and not the testimony of witnesses. If a copy is allowed to be presented in lieu of the presented instead of the original, the margin of inaccuracy is high.
original, it involves risk of inaccuracy brought about by the pitfalls in transmission (by copying
Example: Official receipts, usually prepared in duplicate/triplicate Consolidated Bank and Trust Co. v. Del Monte motor Works
using a carbon sheet. Any of these copies are considered original
Facts: This involves a promissory note. Del Monte obtained a loan from
and can be presented.
Consolidated Bank. The promissory note was signed by the officers who
were also required to execute the joint and solidary undertaking. For
People v. Tan
non-payment of the loan, the Bank went to court to collect.
Facts: This case involves falsification of public documents by having
made it appear that certain relief supplies were purchased for In their answer, the corporation Del Monte alleged that the promissory
distribution to calamity indigents when in fact, no such distributions note was issued without consideration. On their part, the two officers in
had ever been made. Document presented was the triplicate copies their answer alleged that they merely signed the promissory note as
of receipt. officers of the corporation and not under individual and personal
capacity. During the trial, the Bank offered in evidence a photocopy of
Ruling: Supreme Court ruled that if the documents or papers to be the promissory note sued upon which was objected to under the best
introduced in evidence were produced by the use of carbon sheets, evidence rule.
and which thereby produced a facsimile of the originals including the
figures and the signatures on the originals, they are regarded as Issue: Whether the BER is applicable.
duplicate originals and may be introduced as such, even without
accounting for the non-production of the other originals. Ruling: No. The best evidence rule comes into play if the subject of
inquiry is the contents of a document. And the contents of a document
3. When an entry is repeated in the regular course of business, can only become the subject of inquiry if there is an issue as to the
one being copied from another at or near the time of the accuracy of the wordings, the terms and the contents of the document.
transaction, all the entries are likewise equally regarded as
originals. Here, there was no issue as to the accuracy of the wordings and terms
found on the face of the promissory note. There was no allegation
Unlike the second, this requires that it be done in the regular course contrary to what appears on the face of the promissory note. The
of business. It refers to entries being copied from one another. defense of the corporation was that there was no consideration.
However, the corporation never disputed the accuracy of the terms
Example: Journal used in business. You have a sari-sari store, one found. In the same manner that the officers never disputed the accuracy
is recorded into the journal for the husband, the other for the wife, but only interposed the defense that it’s not their personal liability.
so you just copy the entries. For purposes of BER, the entries in
either of the journals are considered originals. Since the contents of the note not being the subject of inquiry, the Best
Evidence Rule does not apply. Thus, it is alright for the bank to present
Important: So these are the original documents for purposes of the a photocopy of the promissory note.
best evidence rule. Not all cases involving documents are covered by
the best evidence rule. Original documents are only required if the best When Best Evidence Rule Does Not Apply
evidence rule applies. The best evidence rule applies if the subject of
the inquiry is the contents of the documents. Instances when BER does not apply
1. Collateral fact rule (when document is merely incidental to the
Q. When does a content of a document become subject of the issue in the case)
inquiry? 2. When the purpose of the evidence is to prove a fact which has an
existence independent from the document
ANS: This was answered in the case of Consolidated Bank v. Del Monte 3. When the purpose of the evidence is to prove facts extraneous to
Motor Works. the contents of the document
4. When a party admits expressly or impliedly the genuineness and
The Supreme Court ruled that the contents of a document become the due execution of the document
subject of inquiry when there is a dispute as to the accuracy of the 5. Waiver of objection
wordings or the terms of the document.10
Important: If it falls under any of these instances, the Best Evidence
Sir: This is not about truth or falsity of the wordings, terms or contents Rule will not apply. Thus, you may present secondary evidence without
of the document. What is at issue there is the accuracy. The relevant regard to complying with the condition of secondary evidence (i.e.
question involved is what the document really contains. This accounting for the loss of the originals, etc.) However, if you have the
presupposes a situation where one party says that the document original with you, it would be best to just present the original. The only
contains green but the other party says blue. So the question is what advantage is that, even if you choose not to present the original, the
does the document really contains. This can be resolved by presenting same cannot be objected to on the ground of inadmissibility.
the original document itself so that we can see if it’s really green or if
it’s really blue.
10
Spectra: If there is dispute as to its exact wordings, exact figures, exact terms and conditions.
(This is actually not found in the case.)
1. Collateral Fact Rule (b) In establishing the fact of death
The dispute involves a document which is only collateral to the fact The adverse party cannot insist that the death certificate
in issue. The document is only incidental. This was illustrated aptly should be presented because a death certificate happens
in the case of Air France vs. Carrascoso. only to be one of the evidence that can be presented. The
death certificate is not the only evidence that can establish
Air France v. Carrascoso the fact of death. The fact of death can also be established
by evidence other than the death certificate (i.e. testimony
Facts: An action for damages arising from breach of contract of
of the witness who saw the killing, testimony of the witness
carriage filed by a passenger who was unfairly bumped off during
who attended the wake or the burial, etc.)
his travel. In his testimony in court, he narrated the incident and
made mention that his altercation with a crewmember was heard
(c) In establishing the fact of marriage
by another crew member who incidentally recorded the incident in
his notebook. This was the purser.
The same goes for establishing the fact of marriage. If you
want to establish marriage, the marriage contract is not the
The Airlines objected to this portion of the testimony referring to
only evidence available. It can also be established by the
the fact that the purser recorded the incident into his notebook and
testimony of witnesses and such testimony cannot be
under the BER, this notebook should have been presented.
excluded just because there is a marriage contract.
Ruling: SC said the fact in issue here is not the contents of the
Meyers v. US
notebook. There was no dispute as to the contents of the
notebook. The fact in issue was about the fact that he was bumped Facts: This involved a criminal prosecution for subornation of
off and as a result, an altercation ensued between the plaintiff and perjury. Mr. Meyers was a government official connected with the
the crewmember. The reference to the notebook was only a Department of Defense of the US. After the war and wanting to
collateral matter. So the testimony of the witness was admitted. investigate reports of corruption perpetrated by officers of
department of defense, the US Senate conducted an investigation.
2. If the purpose of the evidence is to establish a fact which One of those investigated was Mr. Meyers who was accused of
has an existence independent from the document or maintaining financial interest in a certain business entity which
writing although incidentally that fact is evidenced by a conducted substantial business transactions with the government.
document or reduced into writing. This corporation, Aviation Electric Corporation (AEC), was engaged
in the business of manufacturing airplane parts and accessories.
So the document may be involved in a dispute but there is just the
evidence of a fact which such fact can be established by evidence One of the witnesses and also accused in the case was Mr. Lamarre
other than the document. who was the President of AEC. During his testimony before the
Senate Committee, he testified under oath that Mr. Meyers had no
Examples: financial interest or has no connection to AEC. At other point of his
testimony, he also made a contradictory claim that indeed Mr.
(a) In a case for murder Meyer had financial interest in the corporation or otherwise has
substantial interest in the corporation.
Here, Mr. Cabatana is the accused. The murder allegedly
took place in Cebu. The defense of Mr. Cabatana is that on Because of the allegedly perjurious testimony of Mr. Lamarre, he
such and such a date and time, he was in Manila. The issue was charged with three counts of perjury for falsely denying that
there is whether or not, on such a date and time, Mr. Mr. Meyers had interest in the company when in truth and in fact,
Cabatana was in Manila. The fact in issue is whether Mr. Mr. Meyers has financial interest in the corporation. During the
Cabatana, on such given time and day really travelled from arraignment, Mr. Lamarre pleaded guilty to the charges but he
Cebu to Manila. Of course, travelling from Cebu to Manila confessed that before he gave his perjurious testimony before the
would normally be evidenced by a document consisting of Senate Investigation Hearing, he testified that Mr. Meyers
the Airline ticket. instructed him to lie under oath. On the basis of this information,
three counts of subornation of perjury were filed against Mr.
Under this instance, the fact that Mr. Cabatana travelled Meyers. In our jurisdiction, we refer this as principal by instigation.
from Cebu to Manila has its own independent existence. In
other words, it can be proved by evidence other than the During trial of Mr. Meyers and in order to prove the requisites of
Airline ticket. So, someone could testify that on such a date the crime of subordination of perjury committed, the prosecution
and such a time, he travelled with Mr. Cabatana so how should prove that someone was suborned to commit perjury. To
could he have committed the crime of murder; He cannot be prove this fact, the prosecution presented the special counsel who
in two places at the same time. So, the adverse party cannot presided the hearing, the one who examined Mr. Lamarre as
insist under the BER, the exclusion of the testimony of the witness to testify as to what exactly Mr. Lamarre testified or
witness and demand that the ticket should be presented perjured. No party objected to the testimony of the special counsel
because the BER does not apply in this case. and this was not raised as a defense by the accused.
In relation to the best evidence rule (BER), this came about when
a Justice in his dissenting opinion argued that the testimony of the
special counsel on the perjurious statement of Mr. Lamarre should
10 | U N I V E R S I T Y OF SAN C AR LOS
not have been admitted under the BER. The dissenting Justice Ruling: Overruled the objection holding that the gravamen of the
insisted that the transcript should only be the admissible evidence offense of violation of BP 22 is the mere issuance of a bank check
being the original document. and never the contents of the check.
Issue: Whether or not the testimony of the special counsel is Best evidence rule does not apply and presentation of the
inadmissible under the BER. photocopy of the check is sufficient. By presenting the photocopy
of the subject check, the prosecution merely wanted to prove the
Ruling: No. The majority of the Justices disagreed with the fact of issuance. There is no dispute as to the contents of the check.
dissenting justice pointing out that the BER does not apply in the
case because there was no dispute over the contents of the 4. When the party admits expressly or impliedly the
transcript. genuineness and due execution of the document
The purpose of the testimony of the special counsel is to prove the Effect of admission: The admitting party recognizes that the terms,
exact testimony Mr. Lamarre gave during the senate investigation wordings, and contents are in order, precise, and accurate. This
hearing where he made contradictory statements. He was not would negate the application of the best evidence rule
presented to prove the contents of the transcript of stenographic
notes. Consolidated Bank v. Del Monte Motor Works
Facts: This case involves an action to collect a loan obligation
Important: The fact sought to be established in this case has its
initiated by the bank against the borrower. In their defense, the
own independent existence that can be proved by evidence other
borrower corporation interposed that the subject promissory note
than the transcript. While the exact testimony of Mr. Lamarre could
(PN) was issued without consideration, hence void. On the other
also be proved by the transcript, it does not mean that the
hand, the individual defendants, who were officers of the
transcript is the only evidence of that fact. The fact of the exact
corporation advanced the defense that they could not be held liable
testimony of Mr. Lamarre can be proved either by the transcript or
under the PN or under their individual capacities because they
someone who heard him testify. In this case, the special counsel.
signed the same as officers of the corporation. During the trial, the
bank presented a photocopy of the PN signed by the officers.
3. If the purpose of presenting the evidence is to prove facts
extraneous or external matters outside the contents of the
Issue: Whether the photocopy of the PN is inadmissible in light of
document.
the BER.
TN: An instance mistaken to be covered by the best evidence rule.
Ruling: The Best Evidence Rule applies only when the dispute or
the subject of the inquiry is the contents of the document. In this
The subject of inquiry may relate to facts external to the content
case, the defendants never disputed the contents of the document.
like its existence, its issuance, its execution or delivery.
In fact, based on their answer, they admitted the genuineness and
due execution of the PN although they interposed defenses which
People v. Tandoy
are outside its genuineness and due execution.
Facts: This involves the prosecution for violation of Dangerous
Drugs Act where the accused was caught in the very act of selling When they interposed the defense of lack of consideration, they in
marijuana. effect admitted that the PN contains exact wordings, terms, and
conditions except that it was issued without consideration. Hence,
One of the requisites of the crime is the evidence of actual sale. the contents of the PN were never subject of inquiry and the BER
Accordingly, there is actual sale when there is a consideration does not apply. The argument that they cannot be held liable under
(money). The consideration in the case was a ten-peso bill. their individual capacities was also one outside the purview of the
promissory notes.
During the trial, the prosecutor presented the photocopy of a ten-
peso bill. This was objected under the best evidence rule being a TN: Actionable document must be denied under oath in the answer
photocopy. The defense argued that the marked money should be of the complaint or in the reply of an answer.
presented because it is the original document.
5. If the objection to the admission of an otherwise
Issue: Whether or not the BER applies. inadmissible evidence is waived.
Ruling: Objection overruled. Best evidence rule does not apply. Reason: The Best evidence rule like other exclusionary rules is not
The subject of the inquiry is not the wordings, figures, number or a self-executing provision. It has to be invoked by the proper party
contents of the marked money. The fact sought to be established at the right time.
by presenting the photocopy of the ten-peso bill was to establish
there was consideration in the sale of marijuana.
Arceo v. People (The same principle was applied)

Facts: Involves prosecution for the violation of BP22. During the
trial, the prosecution presented only a photocopy of the subject
check. The admission of the photocopy was objected to under the
best evidence rule.
Exceptions to the BER (Rule 130, Section 3) Citibank v. Teodoro

Facts: This involves a collection suit for sum of money arising from a
Exceptions to the BER
credit card transaction. Teodoro was a credit cardholder of Citibank.
Rule 130, Section 3 When Teodoro allegedly failed to pay the purchases on time, Citibank
When the subject of inquiry is the contents of a document, no evidence sued him. During the trial, and in order to prove the loan obligation,
shall be admissible other than the original document itself, except in the Citibank presented the invoices and receipts the cardholder is required
following cases: to sign during every transaction. However, only photocopies were
presented. Invoking the BER, Teodoro argued that these photocopies
1. When the original has been lost or destroyed, or cannot be should be inadmissible.
produced in court, without bad faith on the part of the offeror
2. When the original is in the custody or under the control of the party Ruling: Revisiting the requisites laid down in De Vera, the SC added an
against whom the evidence is offered, and the latter fails to additional requisite. They held that there should be reasonable effort in
produce it after reasonable notice looking for the original.
3. When the original consists of numerous accounts or other
documents which cannot be examined in court without great loss While it was established that the officer of Citibank requested for the
of time and the fact sought to be established from them is only the production of the original from the custodian of the invoices, it was also
general result of the whole established that there was never any follow-up on the request. The SC
4. When the original is a public record in the custody of a public officer held that this did not amount to “reasonable diligence.”
or is recorded in a public office
Important: Summary of requisites for 1st instance to apply:
Important: Take note that the exceptions to the BER should not be 1. Prove the existence and due execution of the original document
confused with the instances when BER does not apply. They are 2. Prove the fact of loss of the original
different as to treatment and effect. (A more comprehensive discussion 3. Prove the contents of the original document
about the difference will be made later, p. 15) 4. Reasonable effort in looking for the original.
Exceptions, discussed 1-Prove the existence and due execution or genuineness of the
original document
1. Original is lost, destroyed, cannot be produced in court
A proponent who wishes to avail of the secondary evidence rule can
When the original has been lost or destroyed, or cannot be prove the existence and due execution of original document by
produced in court, without bad faith on the part of the offeror. testimony of witnesses.
This instance contemplates of a situation where the original cannot be Who are the possible witnesses? The case of De Vera v. Aguilar
produced either because of loss, destruction or may include a situation enumerates them. They must be someone who is competent to testify
where the original is existing but for one reason or another it cannot be as to the fact.
produced in court.
(a) Parties
Examples:
Parties to the document are in the best position to testify as to
(a) The subject of inquiry are the writings engraved in a tombstone. the existence and its due execution.
As such, it is considered a documentary evidence. Under the BER,
normally, had it been a movable property, that should have been (b) Witness to the contract
presented in Court physically. But by its very nature, it is not
practicable to bring the tombstone and exhibit it to the Court. One who witnessed execution – one who has personal knowledge
of the execution of document. The importance of witness in a
(b) Tattoos on the sensitive parts of the human body. By reason of contract is not in the validity of the contract but more on the
morality and public policy, it would be not be proper to produce evidentiary purpose. It may happen that the parties are no longer
the same. available so one can count on the help of the witnesses.
Important: But before secondary evidence may be allowed under the (c) Notary public
first exception, the rule requires some conditions to be complied with.
In case of a public document, one which is notarized, possible
Requisites for first exception to apply: witness to establish the fact of its existence is the notary public
himself. If you don’t have the parties and witnesses, one can
De Vera v. Aguilar count on the notary public.
1. The offeror must establish the existence and due execution of the (d) Any person who was shown a copy of the original document
original document
2. Prove the fact of loss of the original In case no party, no witness and no notary public. Someone with
3. Prove the contents of the original document no personal knowledge of the execution of contract but one time
or another, subsequent to the execution had the occasion to SEE
the document. Even if he was not present at the time of the
execution of contract but subsequently he personally saw the Possible secondary evidence as far as 1st exception is concerned.
document.
(a) Copy of the original
(e) Any person who was made aware by either party about the
execution of the contract It is the replica of the original.
Neither a party, nor a witness, nor the notary public, nor one who (b) Recital of the contents of the documents as found in an authentic
subsequently seen the document after execution but simply writing
someone who was MADE AWARE OF the existence subsequent to
execution BY EITHER of the parties of the contract. This Authentic writing bears the entries or contents of the original
information was just relayed to him by the parties. document. The secondary evidence consists of the recitals of the
contents of the original document.
Usually involve the friends and confidants of the parties.
Example: Excerpt of a marriage contact or Birth certificate.
Sir: Use this as the last option. Be careful with this witness.
A copy of the excerpt can be issued by the local civil registrar. But
Sir’s Reservation on last witness: If you accept this, is it not its form is not like the one you get from NSO (certificate with
hearsay? He really has no personal knowledge as to the due signature) since it is only an excerpt, only contain important
execution of the document. The basis for his knowledge is the entries lifted in the birth certificate. Excerpt is the recitals of the
mere say so of either of the parties. It does not fall under any original record of birth certificate. It is pro-forma of the birth
exceptions of Hearsay Rules. certificate.
2-Prove fact of loss of original (c) Testimony of witnesses
The case of De Vera v. Aguilar enumerates the possible witnesses who If you don’t have a copy and recital, then present a witness to
can attest as to the fact of loss. prove the contents of the original document which is now lost or
destroyed. This type of secondary evidence I presented last.
(a) Any person who is personally aware of the fact of loss
Important: According to Atty. T, some commentators say that there is
When original document was eaten by termites, one who no need to follow the order of presentation of secondary evidence, but
personally observed this happening can testify and attest personal for our purposes, to be safe about it, follow the order.
knowledge.
4-Establish that witness exerted reasonable diligence in
(b) Someone who was not able to personally witness the loss but looking for the original document
exerted due diligence in looking for the missing original in a place
where similar documents, are usually kept by the custodian. Citibank v. Teodoro
One can present a witness who has exerted reasonable effort in trying
Witness who has no personal knowledge of the fact of loss but
to find the original document. Request to produce is not enough. Follow
executed reasonable effort to locate the original not just in any
up should be made. There must be in good faith, effort at locating,
place but places where documents of similar character are usually
producing, the original claimed to be unavailable.
found.
Applying the Sec. 5, Rule 130 of the Rules of Court to the present case,
(c) A person who made any other form of examination to locate the
before a party is allowed to adduce secondary evidence to prove the
original.
contents of the original sales invoices, the offeror must prove the
following: (1) the existence or due execution of the original; (2) the loss
Any other witness who exerted effort to locate the missing original
and destruction of the original or the reason for its nonproduction in
in some other place and in any other manner. (TN: Places referred
court; and (3) on the part of the offeror, the absence of bad faith to
here are those where the document is not usually kept.)
which the unavailability of the original can be attributed. The correct
order of proof is as follows: existence, execution, loss, and contents. At
Important: In proving the fact of loss, it must be established first how
the sound discretion of the court, this order may be changed if
many originals there were. After establishing this, the loss of all originals
necessary.
must be accounted for. It is not enough that you establish the loss of
one or some and not all of the originals. Non-compliance with this
In the present case, the existence of the original sales invoices was
requisite will not justify the presentation of secondary evidence because
established by the photocopies and the testimony of Hernandez.
the fact of loss is deemed not duly established.
Petitioner, however, failed to prove that the originals had been lost or
could not be produced in court after reasonable diligence and good faith
3-Prove the contents of the original document
in searching for them. Indeed, the sales invoices might have been found
by Equitable. Hernandez, testifying that he had requested the originals
This is the condition where the proponent now has to apply the
from Equitable, failed to show that he had subsequently followed up the
Secondary Evidence Rule. Precisely, secondary evidence may be used in
request.
proving the contents of the missing original.
2. Original in the custody of the other party proponent to the first exception, so he may now present a secondary
copy, recitals or testimonial witnesses.
When the original is in the custody or under the control of the
party against whom the evidence is offered, and the latter fails Important: The adverse party who refuses or fails to produce the
to produce it after reasonable notice. original despite reasonable notice cannot subsequently come forward
and present the original wherein the secondary evidence was offered
There are instances when the proponent believe that the original and admitted by the Court. This is based on the principle of estoppel
document is in the adverse party’s possession. Definitely, he cannot because he was even given reasonable notice to produce it, it is now
produce the original, this paves the way for production or admission of late in the day for the adverse party to come with that original.
Secondary evidence. But there are still certain requisites before this
secondary evidence may be allowed. 3. Original consists of numerous accounts
Requisites for second exception to apply:

When the original consists of numerous accounts or other
documents which cannot be examined in court without great
1. Prove the fact, existence and due execution of the original
loss of time and the fact sought to be established from them is
(How to prove this? Refer to the witnesses under the 1st exception)
only the general result of the whole.
2. Prove that the original is in the possession of the adverse party

This refers to a situation where the original documents are so numerous,
since it is not practicable to bring all these original documents in court
3. Prove that you gave reasonable notice and despite that, the
for examination.
adverse party fails or refuses to produce the original.
The secondary evidence that may be allowed here in lieu of the
Three possible ways to prove reasonable notice:
numerous voluminous original could be a summary of all entries found
in the individual original numerous accounts or records.
1. File a Motion for Production of Original Document believed to be in
the possession of the adverse party (Rule 27 of the ROC which is
Important: This exception applies only when the fact sought to be
a mode of discovery procedure)
established is the general result of the whole or of the entire truckload
of documents.
2. Ask the court to issue subpoena duces tecum
Sir: A common dispute that normally causes the application of this
3. By any motion oral or in writing.
exception may include the prosecution for estafa or qualified theft filed
by corporations and banks against their employees accused of
During the hearing, the proponent can orally move or request the
embezzling company funds that lasted over several periods. You can
adverse party to produce the original. That will suffice. This was
imagine the numerous volume of documents involved which may be
the kind of notice that was resorted to in the case of Shangrila Edsa
used as proof of the scheme.
v. BF Corporation.
But since the purpose of the proponent is only to establish the total
EDSA Shangrila v. BF Corporation
amount of the embezzled funds, then summary can be prepared and
Facts: During one of the hearings, the lawyer for BF Corporation, can serve as a secondary evidence in lieu of the numerous or voluminous
manifested in open court that the original invoices that the BF Corp accounts or records. The summary is now practicable to bring in Court
intended to present were in the possession of Shangrila. The Court for purposes of proving the fact sought to be established which is the
asked the lawyer of Shangrila if his client was in the possession of the total amount of the embezzled funds.
original of the invoices. In response, the lawyer said that he would refer
the matter to his client and give his feedback to the parties and the Requisites:
court, but he never did.
Compania Maritima v. Allied Free Workers
When the time for offering the photocopies of the invoices came,
question as to its admissibility was raised. The proponent BF Corporation 1. The proponent should establish the numerous and voluminous
justified its presentation of the invoices under this exception. nature of the records.
Ruling: The Supreme Court sustained the corporation. The SC said, in 2. The proponent must sufficiently show that the adverse party was
one of those hearings, the lawyers of the BF Corporation specifically given access to the numerous accounts or voluminous records to
requested for the production of the original invoices believed to be in enable the adverse party to test the accuracy during cross
the possession of the adverse party, Shangrila. But Shangrila never examination.
produced the originals.
TN: The adverse party cannot be expected to conduct an intelligent
Q. What happens if these conditions are duly met? cross examination with a witness using only that summary. What
is important there is that access is given. Whether the adverse
ANS: Secondary evidence may now be offered. Because when the party takes advantage of that access, that is his problem.
adverse party who is in the possession of the original, unjustifiably fails
and refuses to produce the original, the proponent can always consider In so far as the proponent is concerned, it is enough that he is able
the original as lost, destroyed or cannot be produced which leads the to prove that indeed such access was made available. This could
be achieved by filing manifestations in the Court that the numerous Sir: It would useless and futile for you to comply with secondary
accounts or voluminous records are available for examination of evidence rule if the dispute does not fall under any of the exceptions,
the adverse party from 8am to 5am, Monday to Friday at a certain but rather falls under the instances.
place. That would be in compliance of the requirement.
Instances Exceptions
3. The fact sought to be established is a mere general result of the
whole instrument. BER does not apply completely BER applies, but falls under the
exceptions
4. Original is a public record
When the original is a public record in the custody of a public Secondary evidence may Secondary evidence may be
officer or is recorded in a public office. automatically be presented presented, provided the
requisites are complied with
Two ways in offering a public document:
1. Ask the court for issuance subpoena duces tecum or ad Q. We said that if the contents of the document is not the
testificandum addressed to the public officer. subject of the inquiry, BER will not apply. Thus, secondary
evidence may be presented without accounting for the
Sir: But this is discouraged because as a general rule, under the originals. However, in one of your questions during recitations,
ROC, custodians of legal documents are prohibited from bringing you asked: “If a document is offered in evidence merely to
out originals in their possession. Also, it would be a waste of time prove its existence, BER will not apply. But, is there really no
and public money for the custodian to attend every hearing. need to account for the originals?” And then you cited the case
of Heirs of Prodon.
2. Secondary evidence – the certified true copy of the original public
document, issued by the legal custodian, suffices for purposes of ANS: Well, it is one thing to say that the situation is not covered by the
presenting evidence. Best Evidence Rule and it is an entirely different thing to say that the
situation falls under the exceptions. If the situation is covered by the
Sir: The common practice is the second way. Note that this must BER, the effect there is that the proponent should present the original
be issued by the legal custodian and not just by anyone else (e.g. because it is the situation that is contemplated by the rule- a situation
photocopying machine operator). where the subject of the inquiry is the contents of the document.
Difference between Instances and Exceptions So since this is covered by BER, the rule there is to present the original.
If the original cannot be produced or it falls under any of the exceptions,
Important: Master the difference between (a) instances when BER you can present the secondary. But before you can present with the
does not apply and (b) exceptions to the BER. secondary, you have to comply with the preconditions. If the exception
relates to the first or the second, you have to account for the lost or
Sir: A question about this would definitely come out in the exam. missing original. And in accounting for the lost or missing original, there
are so many requirements to comply.
Instances
These are instances which are often times mistaken to be covered by But if the situation falls under the instances, which are not really covered
Best Evidence Rule when in truth and in fact, they are not. If any of by the best evidence rule, then you have no obligation to present the
these instances is involved in the dispute, the Best Evidence Rule is original. You can present any evidence you have to prove the fact in
completely irrelevant. No objection can be made and no argument can issue, which has nothing to do with contents of the document. So,
be insisted that the original should be presented. theoretically, you are not required to produce the original, it is your
discretion which evidence you want to offer to prove the fact in issue.
This should be distinguished from the exceptions. But in court, you have to explain.
Exceptions Example: There is a document and you want to prove the existence of
Here, the Best Evidence Rule applies, but falls under the exceptions. the document. It is not under the best evidence rule because it is only
the existence of the document. Let’s say you claim that you received a
Do not confuse one from the other because there are different letter from Mr. Bantugan where he made some threatening remarks or
treatments. a letter blackmailing you for something. You want to prove in court the
existence of that letter.
A. If the dispute falls under the instances – BER does not apply. Any
evidence may be admitted without need of observing the Best There is no dispute as to the contents but you just prove that there was
Evidence Rule, the Secondary Evidence Rule, i.e. account for the this threatening letter sent by Mr. Bantugan. This is not covered by the
loss, destruction, etc. of the original. Any evidence will do. best evidence rule, which means that you have no obligation to present
the original letter. So, you can choose to present the testimony of
B. If the dispute falls under the exceptions – the case falls under the witness. Maybe you testify that such and such a date, you received a
coverage of the Best Evidence Rule. Thus, secondary evidence may letter from Mr. Bantugan wherein he made some threats. He blackmailed
only be allowed if certain stringent conditions are met (follow the you. Theoretically, that is allowed because it is not covered by the best
requisites for presentation of secondary evidence, i.e. account for evidence rule but you have to explain to the court because the court
the loss of the originals, etc) would normally ask you, where is the letter? So, it is all about credibility
and probative value. So, that your testimony would be believed by the Important: Both in ROC and REE, the BER is expressly made applicable
court, you have to explain. to documents and when the subject of the inquiry is the contents of the
document. The difference lies in the fact that documents are understood
Important: Your allegation will have more weight and probative value slightly differently from the perspective of the ROC and REE.
had you presented the letter. It is not about admissibility of your
testimony, it’s about making your evidence more credible. So you just Electronic Document
have to explain why instead of the letter, you offer testimonial evidence.
So in a way, you also have to account for the letter which you did not Rule 2, Section 1 (h) of the REE
present. But in so accounting, you need not follow that stringent Electronic document refers to information or the representation of
requirements under the exceptions. information, data, figures, symbols or other modes of written
expression, described or however represented, by which a right is
Electronic Evidence established or an obligation extinguished, or by which a fact may be
proved and affirmed, which is received, recorded, transmitted, stored,
Rules on Electronic evidence (A.M. No. 01-7-01-SC) processed, retrieved or produced electronically.
An offshoot of the Electronic Commerce Act, SC promulgated the Rules
on Electronic Evidence. This took effect August 1, 2001. It includes digitally signed documents and any print-out or output,
readable by sight or other means, which accurately reflects the
Important: Under its provisions, this is only applicable to civil and electronic data message or electronic document. For purposes of these
administrative proceedings. After 1 year, October 14, 2002, the Rules Rules, the term "electronic document" may be used interchangeably
were amended to now cover criminal cases. with "electronic data message".
Rustan Ang v. CA Important: The common denominator of these seven processes is that
they are all electronic.
Facts: This involves the prosecution of a case involving the Anti-Violence
of Women and Children Act (Anti-VAWC). A man and a woman who were
Q. What happens if there is manual intervention?
lovers eventually broke up but the man could not move on. The man
kept on sending the woman nasty text messages and nude pictures of
NPC v. Codilla
the woman herself. It turns out that the nude picture messages were
from another woman’s naked body downloaded from the internet. He Facts: An action for damages arising from a vehicular accident was filed
only superimposed the face of his former lover. when a vessel rammed against the power barges of NPC. During trial,
NPC presented bundles of photocopies of documents. Most of these
The woman cried foul and sued the man criminally under RA 9262. The contained the manual signatures of the purported sender of these
pictures downloaded from the laptop or cellphone were presented in letters. The admission of these photocopies was objected to under BER.
court. One of the issue raised is the admissibility of the picture messages
which are electronic evidence. NPC confidently argued that REE now enforced does not distinguish an
original and a photocopy because the two are both regarded as originals.
Issue: Whether the picture messages are admissible under the Rules on Photocopies are functional equivalents of the original. The matter was
Electronic Evidence eventually raised to SC.
Ruling: SC ruled that the Rules on Electronic Evidence cannot be applied Issue: Whether the photocopied documents are considered originals
in criminal cases.
Sir: However, the SC made a mistake as the illegal act committed in this Ruling: Before we dwell on the issue of whether these photocopies can
case happened in 2005. This case was also decided in 2010. Both took be regarded as originals under REE, it is first necessary to determine if
place long after the amendment took effect. these copies are electronic in the first place.
People v. Noel Enojas The court ruled that what makes a document electronic is the fact that
all the processes involved are electronically done. The fact that these
Here, the Supreme Court corrected itself. It is now settled that the Rules
documents bear manual signatures of the parties negates the electronic
on Electronic Evidence applies to criminal cases as well. (Forget about
character of these documents.
Rustan Ang case)
The court concluded that the photocopies are not electronic documents.
Q. What is the impact of the Rules on Electronic Evidence (REE)
Therefore, they are not to be governed by REE, but instead the rules on
on the Rules of Court (ROC)?
ordinary paper-based documents – BER. Thus, under BER, these
photocopies, which are secondary evidence, without the accounting for
ANS: It has a huge impact to the ROC. One of the Exclusionary Rules
the original are inadmissible. This is a precondition before the admission
significantly affected by the REE is the Best Evidence Rule (BER), among
of a secondary evidence. NPC, unfortunately, failed to comply with BER
others.
in this case.
The BER now differs its treatment when the document is:
Sir: The court is therefore impliedly saying that if only these photocopies
1. Paper-based
are electronic, they would have been regarded as functional equivalent
2. Electronic
of the original documents.
Important: SC made a definitive ruling that what makes an electronic The traditional type of facsimile machine cannot be considered
document is the fact that the processes involve should be electronic so electronic for two reasons:
the presence of a manual intervention such as a manual signature of a
party found in the document takes out the document from its electronic 1. By definition
character.
Our definition of electronic document/electronic data message is
MCC Industrial Sales v. Ssanyong Corp. actually patterned from the model law. The model law being
adapted by United Nation Commission of international trade law.
Whether or not a photocopy of a document can be considered functional
equivalent of the original.
During the deliberation of the Electronic Commerce Act in the
senate floor, it was pointed out that the definition of EDM includes
Facts: MCC is a domestic corporation engaged in importing and selling
several electronic processes some of which includes telegram, telex
stainless steel bars. One of the suppliers of its products is Ssanyong, an
and telecopy. This is the definition adapted by the model law which
international trader. Ssangyong as the supplier would send, through fax,
the Philippines was supposed to adapt but in the final version of
invoices to MCC detailing all the particulars of the transaction (e.g.
the Electronic Commerce Act, there has been observed a slight
specification of the products, quantity, design and the purchase price).
variation in the definition.
And if the proposed terms are acceptable to MCC, its authorized
representative would sign the invoices and resend it to Ssangyong. It
Congress deleted certain processes particularly telegram, telex and
was their agreement that MCC would open a letter credit before the
telecopy. According to experts, the process involved in facsimile
items are shipped to the Philippines.
transmission is telecopy. Taking cue from the omission of these
processes from our own definition of electronic document, SC said
One of these transactions bugged down. Failure or refusal of MCC to
the obvious purpose of the framers in deleting telegram, telex and
open the required letter of credit prompted Ssangyong to suspend the
telecopy is to exclude facsimile transmissions, meaning facsimile
shipment of the products. The problem however was that Ssangyong
transmission purposely by definition were not intentionally
already ordered the products from its own suppliers. In the process of
considered as electronic.
keeping the products on hold, Ssangyong naturally incurred some
expenses - most of it represented storage fees. Ssangyong went to court
2. Rationale of the law
to collect damages arising from expenses it incurred. To prove the
transaction, Ssangyong presented photocopies of the invoices which
The obvious purpose of the electronic commerce act and its
were resent by MCC to Ssangyong through facsimile transmission.
implementing rules (now the Rules on Electronic Evidence) is to
promote a paperless writing as opposed to ordinary paper-based
The documents involved were photocopies of a fax copy as received by
documents. The SC noted that in a facsimile transmission, there
Ssangyong from MCC, not the original. This was objected to on the
are two paper-based document involved: the original paper-based
ground of the Best Evidence Rule. Ssangyong argued that under the
document which is being fed into the fax machine, scanned and
rules on Electronic Evidence, a photocopy is regarded as the functional
sent to the other line and reprinted at the other end in the form of
equivalent of the original. And so, when this issue was raised before the
another paper-based facsimile copy.
Supreme Court, SC ruled that in order to rule on the issue of whether or
not the photocopy was a functional equivalent of the original under the
According to SC, the fact that the facsimile transmission originated
rules on electronic evidence, there is a need to determine first if the
from a paper-based document and ended with another paper-
document involved are really electronic.
based document is corrosive to the concept of paperless writing.
So, the resulting facsimile copy as reprinted on the other end is an
Issue: Whether or not the facsimile copy can be considered as an
ordinary paper-based document and therefore, it cannot be
electronic document.
governed by the rules on electronic evidence.
Ruling: No. The Supreme Court ruled that the photocopies are not
The documents presented in court was the photocopy of the
electronic evidence. The court distinguished between two kinds of
facsimile copy and under the best evidence rule that governs
facsimile transmissions:
ordinary paper-based document, these are not admissible without
accounting for the original copies thereof.
1. Traditional or ordinary
Sir’s discussion:
Where the info originated from an ordinary paper-based doc fed
The ruling laid down in MCC v. Ssanyong has posed some disturbing
into the machine, scanned, sent thru the telephone line and
questions especially the second justification that the facsimile copy
reprinted at the receiving end
cannot be considered electronic because it started with a paper-based
document. Impliedly saying that for a document to be electronic, it must
2. Computer-generated fax machine
not start with a paper base.11
Where the original data is electronically generated and sent to the
To be consistent with Ssanyong, a photocopy of the printout of an
other end thru the telephone line resulting in a facsimile copy
electronic document cannot be considered electronic because the
printout is paper-based as opposed to digital.
11
What will happen now if an electronic document generated through computer is printed out process and then subsequently printed out? In these two instances, the resulting paper-based
and the print out is reproduced a number of times to photocopying machine? Or what will copies, the physical paper, were all generated from an equally paper- based documents.
happen if an ordinary paper- based document is converted into a digital form using scanning
In the same manner that an ordinary paper-based document converted Three originals:
into a digital form using scanning process, to be consistent with
Ssanyong, the resulting copy should be deemed paper-based and not 1. Original electronic document in its digital form stored in the
electronic. computer.
Scanning 2. A printout readable by sight or other means.

The problem is, as regards scanning, the SC came up with a contrary
ruling. In the cases of Maliksi v. Comelec and Chato v. HRET, the Ex: You have your electronic document in the computer as you
documents involved were printouts of the digital form of an ordinarily compose it, you print it out. The printout is an original electronic
paper-based document consisting of ballots manually filled up by the document.
voters.
3. An output readable by sight or other means.
Take note that the source document here is paper-based because it's
manually filled up. Ex: When you open your computer, the data is now being displayed
in the screen of your computer. It is an output readable by sight
In NPC v. Codilla, SC ruled that if the process is distorted by manual which is also original.
intervention then it is no longer electronic. So that we can assume that
a ballot filled up by the voters is no doubt paper-based and not Important: In other words, we have as originals the document stored
electronic. in the computer’s hard drive, the one displayed in the computer screen
(output readable by sight), and the printout.
But the opposite was ruled in the two cases previously mentioned. In
fact, the issue in these two cases was whether or not the recount can Two types of functional equivalent of the originals
be done using the print out of the digital form of the paper ballots. These
printouts coming from the PCOS machine originated from the paper- Rule 4, Section 2, REE
based ballots in the precinct level. 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,
Supreme Court held: 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
“The printouts thereof are the functional equivalent of the paper ballots by chemical reproduction, or by other equivalent techniques which is
filled out by the voters and, thus, may be used for purposes of revision accurately reproduces the original, such copies or duplicates shall be
of votes in an electoral protest." regarded as the equivalent of the original.
Sir: Section 2 of Rule 4 provides the certain copies or counterparts which
So this ruling rebuts the reasoning of the SC in Ssanyong.12 are regarded as functional equivalent of the original. So aside from the
digital forms stored in the hard drive, the document displayed in the
Important: computer screen which is output readable by sight, and the printout,
Ssanyong – the resulting facsimile copy was not electronic. there are other counterparts or copies regarded as functional equivalent
Maliksi and Chato – the resulting printout coming from the PCOS of the originals. For all intents and purposes, these are all originals. For
machine using scanning process is electronic. This, despite the fact that purposes of the best evidence rule, any of these can be presented as
the source document is paper-based. evidence, and admissible as evidence.
Original Electronic Evidence 1. When the original consists of two or more copies executed
at or about the same time with identical contents.
Sir: In so far as the photocopy is concerned, prepare your attention to
Rule 4, Section 2 of the REE. The Rule also defines what an original All such copies are regarded as originals. So more or less the same
electronic evidence is: as the Rules of Court.
Original Electronic Evidence Example: Ms. Ibanez composed a letter for this coming Valentine's
Day addressed to Mr. Bantugan. Ms. Ibanez did not only send the
Rule 4, Section 1, REE. love letter to Mr. Bantugan's account but cc all her classmates, and
Original of an electronic document – An electronic document shall be relatives at Bacolod on their respective email accounts.
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 So this involves an original consisting of two or more copies
means, shown to reflect the data accurately. executed at or about the same time with identical contents. So any
of those copies sent may be introduced in evidence and is
Sir: That is the original. So when it comes to electronic document, it is admissible without accounting for the other, without accounting for
possible that there are two or more originals. the one specifically directed to or sent to Mr. Bantugan because all
12
In Ssanyong, it is not even certain that the source document there was purely paper- based involved there and therefore was classified as paper- based. But assuming the source documents
or even electronic as it was not established that the source document there was manually on both cases are the same level as ordinary purely paper based because there are manual
prepared. It was not certain in the records although there was some mention there that in their interventions. The rulings are contradictory.
practice, if the terms are agreeable to the MCC sales, the representative will also agree. So we
would like to think that maybe the invoices there sent by Ssanyong to MCC were manually
prepared or pro forma invoices or maybe there were some manual interventions that were
these copies are regarded as original under that first type of Q. What is a digital signature?
counterparts.
ANS: Atty. T’s take is that the signature should be in digitally created. It
2. Counterpart produced by the same impression as the does not contemplate the signature we do in LTO where we manually
original, or from the same matrix, or by mechanical or sign and it is transformed electronically.
electronic re-recording, or by chemical reproduction, or by
other equivalent techniques which is accurately Sir: That is also unique. It cannot be altered. That is why it is admitted
reproduces the original. as a signature that can authenticate. One of the modes of authenticating
electronic documents is if it is digitally signed, it can be altered
Common denominator is it produces counterpart or copies that electronically. That’s the theoretical concept of digital signature but I
truly and is an accurate reproduction of the original. just don’t know how it is done in practice. Because the one in LTO, I do
not think it is electronic. It’s just a photograph of signature and pasted
A printout of an electronic document is an original. When you it there. I do not think this is the one contemplated by the rule as digital
reproduce that printout by photocopying machine, which is signature.
electrical or mechanic process or under the equivalent technique,
the reproduction is accurate. So a photocopy of a printout of an Plus under Section 2, whatever the reproduction the original undergoes
electronic document is a functional equivalent of the original and the reproduction involves those processes mentioned in the law, it
electronic document. is a counterpart. What is important there is that the reproduction is
accurate. Be it mechanical, electronic and other equivalent technique.
Sir: This negates the Ssanyong ruling but Section 2 of Rule 4 really That’s the thing there. It’s an all-encompassing technique. So, the rule
considers counterparts and copies as functional equivalent of of thumb now really is that there is no more distinction between the
originals, so long as the conditions are met. It is a reproduction of original and a copy or a counterpart.
the original through these processes.
Q. Suppose you lose the original, none of those printouts can
In the light of Section 2, an argument can be made that if a be attained, computers are also destroyed. How do you now
printout, which is an original of an electronic document, is further comply with the best evidence rule?
reproduced through a photocopying machine, the resulting copies
are regarded as originals. ANS: If it were an ordinary paper-based document, you can always
apply the Secondary Evidence Rule. Apply the copy and if there is no
Other forms of reproduction of counterparts produced under the copy, then recitals of witnesses. But the rules of electronic evidence do
same matrix or under the same impression: not contain any provision on secondary evidence. Precisely why there
(a) CD-R are no copies, all are originals. In this case, you cannot prove the
(b) DVD-R contents of the electronic document.
Example: A love letter of Ms. Ibañez is stored in her laptop and she Q. Can we not apply the Rules of Court suppletorily?
stored it using her USB. Friends would want a digital copy of the
letter, they borrowed her USB and saved it in their computer. The ANS: Well, the rules on electronic evidence provide that on matters not
love letter is now stored in another’s computer, it is a covered by the rules on electronic evidence, the rules of court apply
copy/counterpart. Another friend saves it and uploaded in her own suppletorily. So, witnesses can prove the contents of an electronic
computer, yet another copy/counterpart. document.
Under the counterpart’s rule, all these reproductions are Sir: But does the Best Evidence Rule under the Rules of Court apply to
considered a functional equivalent of the original. electronic documents? Is an electronic document considered
documentary evidence under the Rules of Court? So, what is the
Important: As the rule now stands, there is no more copy when difference between the best evidence rule under the rules of court and
the document is electronic. All are originals. That is precisely the the best evidence rule under the electronic?
purpose of Electronic Evidence Rule, to eliminate the distinction
between the original and the counterpart. Important: The Rules of Court covers Electronic because the definition
of documentary evidence under ROC does not make any distinction. It
The ruling in Ssanyong is really disturbing. Although one could simply says any writing or material and so on and so forth. It does not
argue that that ruling should be circumscribed because of the qualify the nature of the document whether it is electronic or paper-
second justification, the justification based on definition. It is also based.13
safe to take the position that the process involved in the
reproduction or copying is that of a traditional fax machine, then
there is no harm adhering to the ruling in the case.
13
But if you have the proponent of an electronic document, you have a good fighting chance if In the cases of Codilla and Ssanyong, the issues there where really whether the documents
you invoke electronic evidence rule because copies are considered originals. Whereas if you which are all photocopies are regarded as functional equivalents of the original because
apply the Best Evidence Rule under the ROC, you have a problem with the absence of the obviously, these were invoked as electronic documents. But the Supreme Court said before we
original because a photocopy or a copy is not original. So in that sense, an electronic document will rule on the issue on whether the photocopies can be considered functional equivalent of the
is also a paper-based. The definition says it is paper-based. Documentary evidence. So if you original, let us first determine if these documents are electronic. And in these two cases, the
want to smuggle in your copy and avoid objection under the best evidence rule, you invoke the Supreme Court ruled that these documents are not electronic. Hence, these photocopies cannot
Electronic Evidence Rule. Just make sure it is really electronic. No manual intervention. be regarded as functional equivalent of the original. Again, implying that had the documents
been electronic, the photocopies are regarded as originals.
Q. How to authenticate ephemeral electronic communication?

Rules on Authentication of Electronic Evidence
Important: Authentication under these rules depends on the purpose ANS: (1) By the parties to the communication, or (2) By one who has
for which the evidence is offered. If the document is offered as proof of personal knowledge thereof.
its contents, then it is documentary evidence. If not, then it is an object
evidence. Depending on the kind of evidence, there are special ways to Rule 11, Section 2, REE
authenticate. Ephemeral electronic communications shall be proven by the testimony
of a person who was a party to the same or has personal knowledge
Documentary evidence thereof. In the absence or unavailability of such witnesses, other
competent evidence may be admitted.
Rule 5, Section 2, REE
Manner of authentication. – Before any private electronic document A recording of the telephone conversation or ephemeral electronic
offered as authentic is received in evidence, its authenticity must be communication shall be covered by the immediately preceding section.
proved by any of the following means: If the foregoing communications are recorded or embodied in an
electronic document, then the provisions of Rule 5 shall apply.
(a) By evidence that it had been digitally signed by the person

Q. If the text message is saved, it is no longer ephemeral. So
purported to have signed the same.
how do we authenticate this evidence?
(b) By evidence that other appropriate security procedures or devices

ANS: It depends on the purpose. If you offer it as documentary evidence
as may be authorized by the Supreme Court or by law for
(offered as proof of its contents), and it is electronically done, so you
authentication of electronic documents were applied to the
follow the rule on authenticating documentary electronic evidence. If
document.
you offer it as object evidence, then follow the rules on authentication
of object evidence.
(c) By other evidence showing its integrity and reliability to the
satisfaction of the judge.
The same as a recorded telephone conversation, you follow the rule on
object-demonstrative evidence. So you now present the person who
Object evidence recorded. Whereas if it was an ephemeral telephone conversation, the
only witnesses who can authenticate are the parties or someone who
Rule 11, Section 1, REE heard.
Audio, video and similar evidence. – Audio, photographic and video
evidence of events, acts or transactions shall be admissible provided it People v. Navarro
shall be shown, presented or displayed to the court and shall be
This case involves a reporter who was killed by a policeman in the
identified, explained or authenticated by the person who made the
precinct. One of the issues there is the sufficiency of authentication of
recording or by some other person competent to testify on the accuracy
the audio recording. The heated altercation was recorded and so the
thereof.
other reporter who survived, testified and authenticated the audio
recording. The Supreme Court in that case enumerated the requisites in
Sir: Like photograph or video. Under the Rules of Evidence, this can be
authenticated by the one who took the video or the picture or anyone
authenticating an audio recording. It specifically stated there how such
should be done:
who may be familiar with the person, event, or thing depicted in the
camera or the video.
1. Authenticated by the one who took the recording.
2. Identify the voice in the recording.
Under the Rules on Electronic Evidence, there is this unique kind of
3. Establish that the voice in the recording is the voice of the person
evidence called Ephemeral Electronic Communication.
claimed to belong to.
Ephemeral Electronic Communication People v. Enojas
This refers to text messages, telephone conversations, chat sessions, The evidence involved there was a text message but retained and
video and audio streaming, and other similar forms of electronic recorded in the cellphone. The Supreme Court held that that such can
communication, evidence of which is not retained or recorded. be authenticated by (a) the parties to the communication or (b) any
person who may have personal knowledge of the text message.
Sir: The definition simply enumerates the forms of Ephemeral Electronic
Communication but the common denominator of all of these is the fact
that the communication is not retained.
Important: So if a telephone call is made and the conversation is not

recorded, it is an Ephemeral Electronic Communication. If it happens
that the conversation is recorded, then by definition, it is no longer
Ephemeral.
Parol Evidence Rule Balungot v. Poblete

Facts: This involves a contract of loan between the lender and the
Parol evidence rule14 borrower. The contract is secured by a mortgage, and conditioned upon
This is an exclusionary rule that specifically covers or applies to non-payment of the loan. Under their contract, the borrower promised
documentary evidence. to pay the loan within one month. The borrower failed to pay the loan
within one month, thus, the creditor foreclosed the mortgage.
Rule 130, Section 9, ROC
When the terms of an agreement have been reduced to writing, it is Subsequently the borrower filed a complaint to nullify the foreclosure of
considered as containing all the terms agreed upon and there can be, the mortgage on the ground that the foreclosure proceedings was
between the parties and their successors in interest, no evidence of such prematurely instituted given that the period for payment of the loan
terms other than the contents of the written agreement. obligation was actually one year. This testimony of the borrower was
objected to under the PER as it tends to prove that the period of
Parol, meaning. payment is one year which contradicts their contract which provides that
The term parol literally means oral but for purposes of our discussion, payment should be made within one month.
parol means extraneous evidence – either oral or documentary. What
makes this parol is the fact that this piece of evidence is something other Ruling: SC sustained the objection. PER prohibits the admission of
than the written agreement of the parties and this piece of evidence is testimony tending to establish the one-year period as the period for
extraneous evidence as it tends to modify, vary, or is contrary, to the payment where the contract indubitably provides one month.
terms that are written in the agreement.
Instances when Parol Evidence Rule does not apply
Important: If there is a dispute over the contents or terms of the
written agreement, the only allowable evidence is the written agreement Instances when PER does not apply
itself. Any evidence whether oral or written that would tend to vary or 1. When the document does not constitute a written contract or
modify the terms of agreement is inadmissible, and can be excluded, agreement
and objected to, under this Rule. 2. If at least one of the parties to the suit is not a party to the written
agreement
Purpose of PER 3. When the prior or contemporaneous agreement is independent
1. To give certainty to the written agreement, preserve its integrity from or not inconsistent with a written agreement (collateral
and protect the liability under the contract or written agreement agreement rule)
2. To prevent fraud. 4. When the adverse party fails to object (waiver)
5. When any of the exceptions to the parol evidence rule applies
Important: Unlike the Best Evidence Rule, its purpose is to ensure
accuracy and precision of the terms or the contents of the document. 1. Document does not constitute a written contract
Yutek and Co. v. Gonzales Foundation of PER is a written or contractual agreement

PER applies only to documents that contain the written agreement –
Facts: A contract was entered into between Yutek and Co. and Mr.
contract. Thus, not all documents are governed by PER unlike the BER.
Gonzales whereby Mr Gonzales undertook for a consideration to deliver
BER applies to all kinds of documents.
an agreed quantity of sugar in favour of Yutek and Co. within the
stipulated period. It was further agreed that should Mr. Gonzales fail to
There is a contract or written agreement when all the elements of a
deliver the sugar within the stipulated period, he shall return the amount
contract are present:
received by him from Yutek and Co. as payment of the sugar.
1. Parties
2. Consideration
Mr Gonzales failed to deliver the sugar which prompted Yutek and Co to
3. Object
file suit against Mr. Gonzales to recover the amount. Mr Gonzales
4. Terms
however argued that the filing of the complaint is premature because
accordingly it was their agreement that the sugar he undertook to
When all these are found in document, that document is classified as a
deliver in favour of Yutek and Co were to be sourced from his own sugar
contract – a written agreement. When there is an issue as to the terms
cane plantation. Since the plantation failed to give him sufficient harvest
of agreement, PER is applicable.
he was not able to deliver on time.
This testimony was objected to under PER because there is no
Cruz v. Court of Appeals
stipulation in the contract between Mr. Gonzales and Yutek that the
sugar he undertook to deliver were to be sourced from his own Facts: There is a sub-lease contract involving a fish pond between Mr
plantation. Cruz and Mr Salonga. One day, Mr. Cruz received the amount of P35K
from Mr Salonga evidenced by a written acknowledgement receipt
Ruling: The objection should be sustained. Mr Gonzales’ testimony tends signed by Mr. Cruz.
to vary, alter or modify the terms and conditions of the written
agreement. Mr. Salonga alleged that the P35K was actually a loan of Mr Cruz
obtained from the latter. Despite demand, Mr Cruz failed to pay the loan
which led to the filing of this collection case.
14
Take note of the spelling of Parol, not with an “e”. There will be 2-point deduction for every
wrong spelling.
During the trial and by way of defense, Mr Cruz, while admitting that he Ruling: The SC said the foundation of parol evidence rule is a contractual
received the amount of P35K from Mr Salonga and had signed a receipt agreement between parties. This is premised that the parties are bound
acknowledging the same, contended that such amount was actually a by the contract. Parol evidence can only be invoked by a party and can
payment of Mr. Salonga’s obligation to him. This obligation arose from also be invoked against a party.
pakyaw arrangement between them representing the rentals of their
sublease contract involving a fish pond. In a situation in which one of the parties in litigation is not a party to
the written agreement, neither party in the litigation can invoke parol
This testimony was objected to under PER because the receipt Mr Cruz evidence rule against each other. So, even if Lechugas was a party to
signed did not contain such statement. The receipt simply states that the deed of sale, she was not allowed to invoke the parol evidence rule
“received from MR. Salonga the amount P35K.” Nowhere in the receipt against the defendants because the defendants are not parties to the
was it stated that it represents payment of Mr. Salonga’s obligation to written agreement subject of the litigation.
him.
Q. Will the answer be different if Lechugas were included in the
Issue: Whether the objection should be sustained. suit?
Ruling: No, the objection should be overruled. The PER applies only in ANS: The answer would be the same. The rules says if at least one of
cases where there is a dispute as to the terms of the written agreement the parties is not a party to the written agreement subject of the case,
– a contract. It does not cover situation where the dispute is over a parol evidence rule does not apply.
document that merely contains a mere statement of fact as in the case
of a receipt. The document simply contains a statement of fact that a “xxx There can be, between the parties and their successors in
certain amount was received by one from another. It does not contain interest, no evidence of such terms other than the contents of
the requisites or elements of a contract – like the parties, consideration, the written agreement.
the subject and the terms
Gaje v. Dalisay
Sir: The foundation of PER is the contractual agreement. This is Facts: Husband Sr. and wife purchased a land from a seller. It was
premised on the fact that parties are bound by the terms and conditions
agreed in the deed of sale that the name of the buyer to be reflected is
of the contract. The contract is the law between the parties and once the name of the junior as the purported buyer. Since the senior is the
the contract is executed, they are bound by law to comply the terms in
buyer and real owner of the land, the senior continued to take
good faith. They are not supposed to alter or modify it to the prejudice possession and enjoy the property until his death. When he died, wife
of the other.
took over as administratix.
2. A party to the suit is not a party to the written contract When the junior learned the deed of sale was placed in his name, he
sold it to a third party. When the wife learned of the sale by the junior,
Parol evidence applies by and against the party to a written the wife sued for recovery of land against the junior and succeeding
agreement buyers. During trial, the wife testified that while the deed of sale
Insofar as the parties to the contract are concerned, the terms and contains the name of the junior, the real party who bought the property
conditions are conclusive. Based on this premise, only parties can invoke was the senior. The testimony of the mother was objected under the
the parol evidence rule in the same manner as parol evidence rule can parol evidence rule since it contradicts the terms of the written
only be invoked against the party. agreement.
Important: If at least one of the parties in a suit is not a party to the Ruling: The SC said the testimony of the wife is admissible since the
written agreement subject of the suit, the parol evidence cannot be parol evidence rule does not apply because it only applies to parties to
invoked by either party. The presence of the third party in the litigation a written agreement. In this case, the wife was not a party to the deed
takes the dispute out of the context of the parol evidence rule. of sale.
Lechugas v. Court of Appeals Q. Was the wife a successor-in-interest of the senior?

Facts: Lechugas bought a parcel of land from Lasangue. Parties
executed a deed of absolute sale. The problem was the deed of sale ANS: Yes. But the parol evidence rule binds only the parties of the
reflected a different lot. Later, the defendants occupied the lot which is written agreement and their respective successors-in-interest.
the one indicated in the deed of sale erroneously indicated believing that
the land occupied by the defendants is the land she bought from Q. Who is a party in contemplation of the parol evidence rule?
Lasangue. Lechugas initiated ejectment against the defendants. The In this case, is it the senior or the junior?
case was dismissed which prompted Lechugas to file another action for
recovery of possession. ANS: It would appear that when the rules speak of “party” who can
invoke or against whom the parol evidence can be invoked refers to the
During trial, defendants presented witness, Leoncia Lasangue. The party whose name appears in the written agreement. Otherwise, if this
witness testified that while it is true she executed a deed of absolute party being contemplated is the real party, then the wife should have
sale, but clarified what she sold was different from the lot indicated in been considered as successor-in-interest and covered by the rules.
the deed of sale. Ms. Lasangue testified that the deed of sale indicated
the wrong lot. The testimony varies, modifies the terms written in the
deed of sale.
Important: For purposes of parol evidence rule, we are referring to the Mario’s surviving heirs being successors-in-interest, are likewise bound
literal party and not the real, actual and legal party. The only parties by PER.
who can invoke parol evidence rule and against whom it can be invoked
are either the seller or the junior whose name appears as the buyer. Note: In this case, the other siblings’ names were also not written in the
contract but they were considered as parties because he is a beneficiary
Q. Had the buyer been the husband? of a stipulation pour atrui.
ANS: The wife would have qualified as a successor-in-interest because Beneficiary of stipulation of pour atrui
when the predecessor dies, the successor steps into the shoes of the One who does not appear as a party because he did not sign the
predecessor. In law they are considered as one and the same insofar as document, but stands to gain from the provisions of the written
interest is concerned. Consequently, the wife’s testimony would have agreement. He is a beneficiary of a stipulation in favor of a third party,
been inadmissible as the Parol Evidence Rule now applies. he can even enforce the contract even if he is not a signatory to the
contract because he has an interest, being a beneficiary. For purposes
“Party” includes beneficiaries of stipulations pour atrui of PER, he is bound and therefore, he cannot introduce extraneous
evidence to vary, modify or contradict the terms of a written agreement.
Heirs of Pacres v. Heirs of Ygona
Facts: Pacres owned a piece of land. When Pacres died, he was survived Important: Another instance when a person not literally a party to the
by six children. After the death of the father, four out of the six children case but is likewise bound by PER is when a party bases its claim on the
sold their respective shares to a third party, Ygona. The two other written agreement or asserts a right originating from the written
surviving children did not. One of those who did not sell his share was agreement. In this case, it is not exactly a stipulation in favor of third
Mario. parties. The stipulation pour atrui is explicit in the document itself that
someone stands to benefit out of the provisions of the contract.
Years later, the heirs of Mario instituted an action to compel the heirs of
the buyer Ygona to comply with the conditions allegedly agreed upon Summary of parties bound
by the four selling heirs and Ygona when the four sold their respective 1. The one who signs the contract
shares to Ygona during their lifetime. 2. The successors-in-interest of the parties who signed the contract.
3. A beneficiary of a stipulation in favor of a third party
According to the heirs of Mario, as part of their agreement, Ygona 4. The party whose claim is based on the written agreement
undertook to pay all the real estate taxes due on the land subject of the 5. A party who asserts a right originating from a written agreement.
sale, cause the survey of the land, cause the subdivision of the land,
and cause the issuance of individual titles covering the respective shares Collateral agreement rule
of all the six surviving heirs, including the shares of Mario, their
predecessor-in-interest. Since Ygona did not comply with the Collateral agreement rule
undertaking, they sued for specific performance, to comply compliance When the prior or contemporaneous agreement is independent from or
with the conditions. not inconsistent with a written agreement, PER does not apply.
During the trial, the plaintiffs tried to prove that at the time the four Sir: PER prohibits the introduction of evidence that would tend to prove
surviving heirs sold their respective shares to Ygona, there were these the existence of other prior or contemporaneous agreement that tends
conditions agreed upon. Unfortunately for the plaintiffs, these alleged to vary, modify or alter the terms of the written agreement.
conditions were not incorporated in the deed of sale that the four
children executed in favor of the buyer Ygona. Three essential facts to be considered:
1. The evidence tends to establish the existence of other terms which
This testimony was objected to under the PER because it tends to vary, are not found in the written agreement.
modify and contradict the terms of the written deed of sale. The 2. The other term or agreement must be prior or contemporaneous
petitioners argued that they are not prohibited from introducing this with a written agreement
extraneous evidence to establish the conditions, even if this would tend 3. The other term or agreement which were purportedly executed
to vary, alter, modify or contradict the terms of the written deed of sale, prior or contemporaneous with a written agreement tends to vary,
because they were not parties to the written deed of sale. modify or contradict that written agreement.
Ruling: While Mario and the plaintiff themselves did not sign the written Important: If the other term or agreement is claimed to have been
deed of sale because it was only signed by the four siblings of Mario and executed after, that is not prohibited because what is prohibited is the
the buyer, it’s obvious that Mario, being one of the heirs and co-owners, existence of other executed prior or contemporaneous with a written
was a beneficiary in that alleged agreement or condition because part agreement. On the other hand, even if that written agreement or that
of that alleged condition was for the buyer to deliver the individual titles other term is claimed to have been executed prior or contemporaneous
covering the respective shares of all the six children including Mario. with the written agreement, but it does not in any way contradict,
modify, or alter the terms of the written agreement, this provision also
If there was such agreement or conditions agreed upon, then Mario does not apply.
stood to benefit out of this alleged condition. Applying the principle of
stipulation in favor a third party, Mario was deemed to be a party to the
contract and being a party to the contract, since Mario, their
predecessor, was deemed to be a party to the contract, the plaintiffs,
Zacarias Robles v. Lizarraga Hermanos to an entirely different property which was owned by Junior in his own
personal capacity and not as Zacarias Sr’s heir.
Facts: This involves a certain hacienda owned by Zacarias Sr. When
Zacarias Sr. died, his widow took over as the administratrix of the estate
Therefore, these two agreements, the (1) Deed of Sale and the (2)
of Zacarias. Zacarias Sr. was survived by 6 children, including Zacarias
Agreement between Junior and Lizarraga should be treated as two
Jr. (Junior).
separate independent contracts. The proof of the existence of that
agreement cannot be excluded under the PER.
During the administration by the widow of the hacienda, she entered
into a contract with Junior for the lease of the hacienda for a period of
Spouses Amoncio v. Benedicto
6 years. Pursuant to the lease and by authority of the lease contract,
Junior introduced some improvements on the hacienda. But 4 years into Facts: Spouses Amoncio owned parcels of land. The spouses entered
their contract, a third party, Lizarraga, came forward and offered to buy into a lease contract with a certain Garcia involving one of their parcels
the hacienda from the surviving heirs of Zacarias Sr. of land. They also entered into another lease contract involving another
piece of land with a certain Benedicto. So in accordance with their lease
The problem was, the hacienda was still under the lease contract contracts, Garcia and Benedicto occupied their respective parcels
between the estate as represented by the widow and Junior. So subject of the separate contract of lease.
Lizarraga had a hard time closing the deal. So in order to convince
Zacarias (Junior) to give up the remaining portion of the lease contract, Moving forward, Garcia vacated the property and subsequently,
Lizarraga allegedly undertook to compensate Junior of the value of the Benedicto started constructing buildings on the land subject of his lease
improvements that he introduced into the hacienda. This undertaking contract as well as the land subject of the lease contract between the
convinced Junior to give up the lease contract. Spouses and Garcia as well as the land not subject to any contract.
Subsequently, Benedicto stopped paying the rentals and so the Spouses
So the sale of the hacienda was done. Subsequently however, Lizarraga filed an action to recover the possession of those portions or pieces of
refused to compensate Junior for the value of the improvements that he land which were occupied by Benedicto where buildings were
introduced and therefore Junior contended that there was a breach of constructed.
contract. Junior then instituted an action in court to collect the value of
the improvements as allegedly promised by Lizarraga. During the trial, By way of defense, Benedicto argued that his construction of the
Junior tried to prove the existence of that agreement/promise. buildings was actually with the authority of the land owner, Amoncio.
According to Benedicto, their agreement was that Benedicto would
The problem was that this alleged undertaking of Lizarraga was not construct five buildings on the property owned by the Spouses Amoncio.
incorporated in the Deed of Sale that was executed by the heirs of One building would be given to Garcia, two buildings would be given to
Zacarias Sr. and Lizarraga. So this testimony, this extraneous evidence, Amoncio and the other two buildings would be given to Benedicto. It
was objected to under the Parol Evidence Rule (PER). It was claimed was further agreed that once the construction of the buildings were
that his testimony varies, modifies, contradicts and alters the terms of completed, the Spouses would pay him the value for the two buildings
the written agreement in the Deed of Sale which does not contain such where were given to them. In other words, Benedicto claimed that the
alleged promise. constructions of the buildings were authorized. The testimony of
Benedicto was objected to by the Spouses because their written
Ruling: The SC ruled in favor of Junior. SC said that what is prohibited agreement was only a plain lease contract and that such authorized
under the PER is the introduction of an extraneous evidence that would constructions were not indicated in the lease contract.
establish the existence of other terms or agreements prior to or
contemporaneous with the written agreement which term or agreement Ruling: SC said that the PER applies to prohibit any evidence that would
tends to vary, contradict, modify or alter the terms of the written establish the existence of other terms or other agreements prior to or
agreement. Conversely, if that prior or contemporaneous other contemporaneous with the written agreement that would tend to vary,
agreement does not vary, contradict, modify or alter the terms of the contradict, modify or alter the terms of the written agreement. However,
written agreement, then the PER cannot be invoked to prohibit the this exclusionary rule does NOT prohibit evidence that would establish
introduction of evidence to prove the existence of such other agreement. a separate independent agreement which has nothing to do with the
written agreement. This principle applies in a situation when under the
In this case, the agreement between Junior and Lizarraga where circumstances, the written agreement between the parties does not
Lizarraga undertook to compensate Junior does not in any way contain the entire transactions between the parties. The written
contradict, vary or modify the written terms of the sale because the agreement was for the lease of that particular piece of land but obviously
Deed of Sale refers to the hacienda which was bought by Lizarraga from the parties had other agreements particularly the agreement relating to
the heir of Zacarias Sr. as part of their inheritance. But the agreement the construction of the buildings.
as to the compensation refers to the properties that Junior owned in his
own right. Therefore, Benedicto cannot be prevented from proving the existence
of that other agreement or the entirety of the transactions that the
Here, the SC distinguished between (a) the nature of the hacienda itself parties entered into. The contract of lease does not convey the whole
which is owned by the heirs by virtue of succession and (b) the nature transactions entered into by the parties.
of the improvements which were owned by Junior in his own right and
not by virtue of succession.
The Deed of Sale was an entirely different contract that refers only to
the properties that the surviving heirs inherited from their father. On the
other hand, the alleged agreement between Junior and Lizarraga refers
Waiver or Failure to Object Ruling: To ascertain the true intent of the parties SC referred to
dictionary. The ordinary meaning of capacity as practiced in the industry
Important: Objection to PER is not a self-executing principle. It has to refers to capacity to treat.
be invoked by the party entitled to it at the proper time. This is a general
principle applicable to all exclusionary rules. (See Willex v. CA) Also, the prevailing market value of a distilling apparatus which can
produce 6,000 liters a day was way higher than the purchase price
Exceptions to Parol Evidence Rule stipulated in the contract.
Rule 130, Section 9, ROC SC held that what was intended by the parties when they indicated 6,000
However, a party may present evidence to modify, explain or add to liters per day should refer only to capacity to treat. Otherwise they would
the terms of written agreement if he puts in issue in his pleading: have stipulated a higher purchase price.
(a) An intrinsic ambiguity, mistake or imperfection in the written

agreement; Failure to express the true intent of the parties
(b) The failure of the written agreement to express the true intent Enriquez v. Ramos
and agreement of the parties thereto;
(c) The validity of the written agreement; or Facts: This involves a contract of sale covering 20 parcels of land.
(d) The existence of other terms agreed to by the parties or their Ramos, the owner of National Bookstore, was the buyer while Enriquez
successors in interest after the execution of the written was the seller. 20 parcels of land but the buyer Ramos could not pay
agreement. the entire purchase price. Only partial. To guarantee the remaining
balance, a real estate mortgage was executed between the parties
Important: For the exceptions to apply, they must be raised an issue covering the parcels of land subject of the contract of sale.
in the pleading.
When Ramos failed to pay the balance, Enriquez instituted a foreclosure
Instances v. Exceptions proceeding over the lands subject of the contract.
You have to distinguish the rule governing instances which are not
covered by Parol evidence rule from the instances which are considered This was opposed by Ramos contending that the foreclosure proceeding
as exceptions to the Parol evidence rule. was premature because the obligation to pay the balance was
conditioned upon the construction of some feeder roads. Without
Both are treated differently. If the problem falls in the instances where Enriquez constructing the feeder roads, Ramos obligation to pay the
parol evidence does not apply, the party can always present extraneous balance did not arise.
evidence, without need of raising it as an issue in the pleading.
The contention was then objected under Parol Evidence Rule as it was
However, if the dispute falls under parol evidence rule but you invoke not contained in the deed of sale.
an exception, the requirement is, you can only introduce extraneous
evidence to prove the existence of such other agreements/terms if it is Ruling: Parol evidence rule admits of an exception. One of which is
pleaded as an issue in the pleading. when the written agreement does not reflect the true intent of the
parties. This exception was duly invoked by Ramos as pleaded.
Intrinsic Ambiguity, Mistake or Imperfection

Exception: Statute of Frauds
Palanca v. Wilson & Co.
Article 1403, New Civil Code.
Facts: Palanca is engaged in the business of distilling liquor, Kulafu. In In the following cases an agreement hereafter made shall be
its efforts to improve production, Palanca entered into a contract with unenforceable by action, unless the same, or some note or
Wilson & Co. for the supply and installation of distilling apparatus that memorandum, thereof, be in writing, and subscribed by the party
would improve production. The contract states that the apparatus charged, or by his agent; evidence, therefore, of the agreement cannot
should have a capacity of 6,000 liters per day. be received without the writing, or a secondary evidence of its contents:
Wilson and Co. installed the apparatus, it was tested and it treated and (a) An agreement that by its terms is not to be performed within a
accommodated 6,000 of raw materials per day. But contrary to the year from the making thereof
expectation of Palanca and his company, they expected that the capacity (b) A special promise to answer for the debt, default, or miscarriage
of the distilling apparatus is to produce 6,000 liters per day of finished of another
product. (c) An agreement made in consideration of marriage, other than a
mutual promise to marry
There was this issue as to what is the meaning of 6,000 liters per day (d) An agreement for the sale of goods, chattels or things in action,
indicated in the contract; if it refers to capacity to treat raw materials or at a price not less than five hundred pesos, unless the buyer
6,000 liter per day as capacity to produce finish product. accept and receive part of such goods and chattels, or the
evidences, or some of them, of such things in action or pay at the
Palanca argued that the intention of the parties was the distilling time some part of the purchase money; but when a sale is made
apparatus should have capacity of 6,000 liter per day referring to by auction and entry is made by the auctioneer in his sales book,
produce finish products. Wilson and Co. contented that the 6,000 liters at the time of the sale, of the amount and kind of property sold,
per day refers to treating capacity. terms of sale, price, names of the purchasers and person on
whose account the sale is made, it is a sufficient memorandum;
(e) An agreement of the leasing for a longer period than one year, or Validity of the Written Agreement
for the sale of real property or of an interest therein;
(f) A representation as to the credit of a third person. There must be a valid written agreement
The operation of the parol evidence rule requires the existence of a valid
Important: Certain specified contracts cannot be enforced unless written agreement. It is not applicable in a proceeding where the validity
evidenced by a written memorandum or contract. These specific of such agreement is the fact in dispute.
transactions cannot be proved by parol evidence, only by a written
contract. Heirs Ureta v. Ureta
Facts: Alfonso had a lot of properties and has 14 children, one of whom
Exception to Statute of Frauds: Contract has been fully or
is a judge. Alfonso was convinced by the judge son to avoid payment of
partially executed.
estate taxes when he dies. Under guise of estate planning, it was made
to appear that properties were sold to the children during his lifetime.
If dispute falls under any of the exceptions, such as a claim that the
He then executed deed of conveyances including 4 parcels of land which
written agreement does not express true intention of the parties, parol
was made to appear to be sold to Policrionio.
evidence can be introduced, testimonial evidence or evidence in writing
may be proved. Witness can come forward and testify.
In the settlement of Alfonso’s estate, the properties conveyed to
Policrionio in a fictitious deed of conveyance were included in the
Example: A real estate mortgage was stated in a contract but the other
inventory of propertied. Policrionio subsequently died and so his heirs,
party raised that a deed of sale was the real intention of the parties. It
knowing that the four lands were still included in list of inventory of
can introduce oral testimony. However, under Article 1403 a deed of
estate of Alphonso, sued for declaration of ownership of the lands.
sale involving real property cannot be proven by parol evidence unless
contract has been fully/partially executed.
During trial, surviving heirs of Alfonso tried to prove that the deed of
conveyance in favor of Policrionio was fictitious as there was no
Q. If not fully or partially executed, can the one invoking
consideration and it was only done to lessen payment of estate taxes
exceptions introduce evidence that it was a sale and not REM?
and convenience. Policrionio’s heirs objected since the deed explicitly
states that it was for a valid consideration.
There are two schools of thought:
Ruling: Parol evidence rule prohibits introduction of extraneous evidence
1. Yes, pursuant to the exceptions under the Rules of Court.
that tends to vary, modify, alter and contradict the terms of the original
agreement but it submits to exceptions, one of which is when the
A party invoking an exception may be allowed to introduce parol
invalidity of agreement is pleaded as an issue. This has been done as
evidence to prove true intention.
the heirs of Alfonso pleaded it as an issue in their answer.
2. No, pursuant to Paras’ discussion of Exceptions under the
Important: The operation of the parol evidence rule requires the
Exceptions of Parol Evidence
existence of a valid written agreement. It is not applicable in a
proceeding where the validity of such agreement is the fact in dispute.
While a party, under the Rules of Court is allowed to introduce parol
Considering that the Deed of Sale has been shown to be void for being
evidence in case the written agreement fails to express true
absolutely simulated and for lack of consideration, the Heirs of Alfonso
intention of parties, this is not allowed when the true intention of
are not precluded from presenting evidence to modify, explain or add to
parties consist of a contract or agreement covered by the Statute
the terms of the written agreement.
of Frauds under Article 1403 of the Civil Code.
Indeed, the applicability of the parol evidence rule requires that the case
Summary:
be between parties and their successors-in-interest. In this case, both
the Heirs of Alfonso and the Heirs of Policronio are successors-in-interest
General rule: Extraneous evidence may not be presented to vary the
of the parties to the Deed of Sale as they claim rights under Alfonso and
terms of a written contract.
Policronio, respectively. The parol evidence rule excluding evidence
aliunde, however, still cannot apply because the present case falls under
Exception: When the contract does not express the true intention of the
two exceptions to the rule, as discussed above. In the case at bar, the
parties. (extraneous evidence allowed)
true intent and the validity of the deed of sale are issues in this case.
Therefore, the case must apply the exception.
Exception: When the contract which is the true intention of the parties
falls under the Status of Frauds. (parol evidence not allowed)
Agreement entered into after the written agreement
Exception: When the contract if fully or partially executed.
Important: Take note that this refers to an agreement entered after
(extraneous evidence allowed)
the written agreement, not prior nor contemporaneous. Once parties
put it into writing, then that is the repository. All their agreements are
there. Thus, any subsequent agreement is not covered.
Canuto v. Mariano
Facts: This case involves a sale of land with a right to repurchase. Under
the contract the seller, Canuto, is given one year period to repurchase.
Anticipating he cannot repurchase, Canuto went to the buyer and asked
for a grace period. The buyer agreed but such was done orally. Canuto Qualifications of a Witness
then went to buyer before expiration of the grace period and expresses
intention to repurchase property but the buyer refused. Canuto then Rule 130, Section 20, ROC
filed an action to compel buyer to accept payment and execute deed of Witnesses; their qualifications. — Except as provided in the next
reconveyance. succeeding section, all persons who can perceive, and perceiving, can
make their known perception to others, may be witnesses.
In trial, Canuto testified and tried to prove that she was given grace
period by the buyer. Testimony objected under the parol evidence rule Religious or political belief, interest in the outcome of the case, or
since said grace period was not stated in the deed of sale with right to conviction of a crime unless otherwise provided by law, shall not be
repurchase. Thus, it varies the term of agreement. ground for disqualification.
Ruling: There’s a fourth exception. The grace period was subject of an Qualifications of a witness
agreement that the parties entered into subsequent to the execution of 1. Capacity to perceive
the deed of sale. Therefore, extraneous parol evidence may be allowed 2. Capacity to remember what he had perceived
to prove the existence of the subsequent agreement relating to the 3. Capacity to communicate the perception that he had remembered
grace period. 4. The taking of affirmation on oath
5. Absence of any disqualification
The Supreme Court held:
Note: There are only five. Interest in the outcome of the case, absence
“The rule forbidding the admission of parol or extrinsic evidence to alter, of interest and conviction of a crime are not a qualifications of a witness.
vary, or contradict a written instrument does not apply so as to prohibit
the establishment by parol of an agreement between the parties to a
Absence of criminal record not a disqualification, exceptions
writing, entered into subsequent to the time when the written As a general rule absence of criminal record is not a qualification except:
instrument was executed, notwithstanding such agreement may have
the effect of adding to, changing, modifying, or even altogether 1. Conviction of a crime of perjury, falsification of false testimony is a
abrogating the contract of the parties as evidenced by the writing; for
disqualification of a witness in probate proceedings. This is because
the parol evidence does not in any way deny that the original agreement under the provisions of the Civil Code, a person convicted by final
of the parties was that which the writing purports to express, but merely
judgment of these crimes cannot be an instrument to witness to
goes to show that the parties have exercised their right to change or the execution of a will.
abrogate the same, or to make a new and independent contract.”
2. A conviction of a crime involving moral turpitude is a
Testimonial Evidence disqualification in so far as a state witness is concerned.
Testimonial Evidence TN: Other than these two instances, conviction of a crime is not a
A witness perception of a past event, being recollected and disqualification. So again, there are only FIVE.
communicated to the court in the form of spoken words or any form of
communication. Authority of a witness to testify is not a qualification
Authority of a witness to testify is not a qualification. Thus, absence of
Important: Testimonial evidence is not limited to oral testimony. See authority is not a disqualification. There is no law that requires that a
Rule 132, Section 1. witness should obtain an authority from the party presenting him as a
witness. This was the ruling in the case of Armed Forces of the
Rule 132, Section 1 Philippines v. Republic of the Philippines.
The examination of witnesses presented in a trial or hearing shall be
done in open court, and under oath or affirmation. Unless the witness is Armed Forces of the Philippines v. Republic
incapacitated to speak, or the questions calls for a different mode of
answer, the answers of the witness shall be given orally. Facts: AFP-Retirement Benefit System filed an application for titling of a
property it claims to be owned by it. During the proceedings, a witness
Sir: Thus, if the witness is unable to speak or when the question calls testified who is an officer of AFP-RBS. After the proceedings, the Court
for a different mode of answer, he may testify in other ways, i.e. sign was convinced by the merits of the petition, but on appeal, at the
language or physical demonstration. instance of the OSG, the CA reversed the decision of the RTC and
dismissed the petition on the ground that LPRBS failed to prosecute
Judicial Affidavit because the witness who testified on its behalf failed to obtain authority
In some cases, testimonial evidence is through affidavit like in cases from AFP-RBS.
governed by summary proceeding or the judicial affidavit rule. The
judicial affidavit serves as the witness’ testimonial and direct testimony. Ruling: The Supreme Court ruled that dismissal of action for failure to
prosecute is governed by Rule 17, Sec 3 of the ROC. And there are only
Important: Judicial Affidavit is a testimonial evidence. It is not a three grounds that can be used as basis for dismissing an action for
documentary evidence just because it is made in a form of a paper. It failure to prosecute. None is present in this case.
serves as a direct testimony of the witness. What is contained there is
the witness’ reconstruction of past events. Again, the mode and manner Further, going to the qualifications of a witness who failed to obtain
of communication does not matter. some authority from AFP-RBS to testify for or its behalf, the Supreme
Court held:
“There is no substantive or procedural rule which requires a witness for It is the burden of the other party to prove that the other party is not
a party to present some form of authorization to testify as a witness for competent to testify because that child suffers the disqualification of
the party presenting him or her. No law or jurisprudence would support immaturity.
the conclusion that such omission can be considered as failure to
prosecute on the part of the party presenting such witness. All that the Dead Man Status or Survivorship Disqualification Rule
Rules require of a witness is that the witness possesses all the
qualifications and none of the disqualifications provided therein.” Rule 130, Section 23.
Disqualification by reason of death or insanity of adverse party. —
Disqualifications of a Witness Parties or assignor of parties to a case, or persons in whose behalf a
case is prosecuted, against an executor or administrator or other
Disqualifications representative of a deceased person, or against a person of unsound
1. Disqualification by reason of Mental Insanity mind, upon a claim or demand against the estate of such deceased
2. Disqualification by reason of Immaturity person or against such person of unsound mind, cannot testify as to any
3. Disqualification by reason of Death or Insanity (Dead Man Statute) matter of fact occurring before the death of such deceased person or
4. Disqualification by reason of Marriage before such person became of unsound mind.
5. Disqualification by reason of Privileged Communication
Dead Man Statute
Mental Insanity Under this rule, a party, a plaintiff, assignor of the plaintiff or a party in
whose behalf the action is prosecuted, may not testify in a suit involving
Rule 130, Section 21 a claim upon the estate of the deceased as to any fact prior to the court
Disqualification by reason of mental incapacity – Those whose mental prior to the death of the decedent.
condition, at the time of their production for examination, is such that
they are incapable of intelligently making known their perception to The reason for this rule is two- fold:
others.
1. To prevent perjury because when other party is already dead, there
Important: The reckoning period of insanity that disqualifies a witness is a temptation on the part of the surviving party to perjure himself
is insanity that exists at the time the witness is called to testify. So the just to advance his cause, because the other party is no longer
time of the testimony is the reckoning point. It does not matter if he around to controvert his testimony.
was insane at the time of the incident that he witnessed for which he is
called to testify. 2. Seeks to level the playing field between the parties. So when the
Q. What is the effect, if any, of the insanity of the witness that other party’s lips are already sealed by death, the law deems it fair
existed at the time the witness perceived the incident for which that the surviving party should also not open his mouth and testify
he is called to testify?
ANS: It affects the credibility of the witness but the witness cannot be Requisites for Dead Man Statute to apply
disqualified from taking the stand and tell his story. Disqualification
Requisites:
relates to the rule on admissibility.
1. The defendant must be sued in his representative capacity as:
Immaturity
(a) Executor
Rule 130, Section 21 (b) Administrator
Disqualification by reason of immaturity – Children whose mental (c) Heirs
maturity is such as to render them incapable of perceiving the facts (d) Any person acting as agent or representative acting for or in
respecting which they are examined and of relating them truthfully. behalf of the estate.
Important: Unlike mental insanity, the immaturity here refers to both 2. The suit involves a claim against the estate of the deceased
the time he perceived the incident and the time he is called to testify.
3. Not all witnesses are disqualified. Only the following are
What immaturity means disqualified:
Immaturity relates to the lack of capacity of the witness to properly (a) Plaintiff
perceive and communicate his perception to others. (b) Assignor
(c) Person in whose behalf the suit is prosecuted
This usually involves children or individuals whose mental development
are impaired wherein even if they are old, they still act as a child. Not 4. Only extends to testimonies of facts that occurred prior to the
insane, just immature, these are two different things. death of the decedent.
Every child is presumed to be competent

Under this second rule in relation to the rules governing examination of
a child witness, every child is presumed to be competent, therefore,
every child is presumed to be mature for purposes of this requirement.
1. The defendant must be sued in his representative capacity amendment of the title praying that the title be declared under her own
name contending that the properties were her exclusive property which
The defendant here is sued not in his personal capacity, but as a mere motion was granted.
representative of the estate of the deceased.
Subsequently, the administrator of the estate of the husband initiated
Important: If the suit is filed by the defendant party, the rule does not the proceedings in the intestate estate of the husband. In the process,
apply. This was illustrated in the case of Guerrero vs. St. Claire. he discovered that the properties owned by the spouses as their
conjugal properties were now claimed by the wife as her own exclusive
Guerrero v. St. Claire property. And so the administrator instituted an action to recover the
property exclusively owned by the surviving spouse.
Facts: A piece of land is owned by an individual. During his lifetime, he
conveyed his property to his son Andres. Andres took over possession During the trial, the surviving spouse testified that the properties were
over the party, but somehow later, he entrusted the enjoyment and acquired by her, solely and exclusively, and so these properties were
possession over the party to his sister Christina Guerrero. not conjugal properties. The testimonies of the wife was objected to
under the dead man’s statute because the case was filed after the death
Subsequently, Andres died, and his surviving heir succeeded but, it was of the husband and the wife testified to a fact that occurred prior to the
around this time that a relative named Manuel Guerrero came forward death of the husband.
and told them the property they were supposed to inherit from their
father, Andres, was already owned by Manuel Guerrero. Ruling: Supreme Court held that the dead man’s statute applies only if
the estate is the party defendant. The party against which the case is
It was discovered by the heirs of Andres that Manuel Guerrero initiated. In this case, the estate itself as represented by the
supposedly bought the property from their aunt Christina. So, the heirs administrator that initiates the action for the recovery of the property.
of Andres went to court and filed an action to recover the property. Dead man’s statute does not apply.
During this time, the property was already owned by St. Claire, who The same ruling was applied in the case of Razon vs IAC.
bought it from the relatives of Manuel Guerrero, who in turn bought the
property from Manuel Guerrero himself. There were already series of Razon v. IAC
transfers, from Manuel Guerrero to St. Claire.
Facts: During the lifetime of Mr. Chiudian, he subscribed to a number of
During trial, they presented witnesses to prove that Manuel Guerrero shares from the corporation but for lack of resources, Mr. Chiudian
did not acquire ownership over the property, because, Christina who agreed with Mr. Razon that latter would advance funds to purchase the
purportedly executed a deed of sale in favor of Manuel Guerrero, was shares of stock with the agreement that the certificate of stocks would
not the real owner as the real owner was Andres Guerrero. Also, they be placed in the custody of Razon until the former reimburses him the
tried to prove that the actual transaction entered into was not sale but money that he advanced as payment for the purchase of the shares of
a mortgage to guarantee the loan obligation of Cristina. stock.
The testimonies of these children were objected to under the dead Mr. Chiudian died without reimbursing Mr. Razon of the payment made.
man’s statute because Manuel Guerrero was already dead and the When it was the time of the administrator of the estate to settle the
children testifies as to the fact that occurred prior to the death of intestate estate, the administrator demanded from Mr. Razon to turn
Guerrero. over the possession of the certificates of stocks claiming that the shares
of stock representing Mr. Chiudian’s shares in the corporation forms part
Ruling: SC overruled the objection ruling that dead man’s statute applies of the estate of the deceased but Mr. Razon refused to turn over the
only if the defending party is sued in his representative capacity. In this certificates of stock to the ground that his agreement with Mr. Chiudian
case, they were sued in their personal capacity having acquired the was that he should be reimbursed for the money that he advanced for
property by purchase from the previous owners. As a matter of fact, the the purchase of the shares of stock.
suit was not filed against the estate of Manuel. So since the action was
filed against the defendant in their personal capacity, dead man’s statute The testimony of Mr. Razon was objected to on the ground dead man’s
does not apply. statute because Mr. Tudian is already dead and MR. Razon testified as
to the fact that occurred prior to the death of Mr Tudian specifically
2. The suit involves a claim against the estate of the deceased referring to that alleged transaction.
The party under attack must be the estate of the deceased. If the Ruling: Dead Man’s Statute applies only in a case filed against the estate
situation is otherwise, the estate of the deceased being the party not when the estate is the one initiating the action. In this case, it is the
attacking, this rule does not apply as was ruled in the case of Tongco v estate of Mr. Chiudian represented by its administrator that initiated the
Vianson. action to recover the possession of the certificate of stock in the
possession of Mr. Razon.
Tongco v. Vianson
Facts: During the lifetime of the husband, spouses Tongco participated
in the cadastral proceedings where they claimed ownership over certain
parcels of land. Their application for titling was granted. After the death
of the husband, land title was issued under the name of both spouses.
For one reason or another, the surviving spouse filed a motion for
3. Only the plaintiffs, assignor of plaintiff or a person on whose Q. What is the rule if plaintiff, assignor, etc. is a juridical entity?
behalf the action is prosecuted are disqualified to testify.
ANS: It is true that corporation acts only through its officers, employees,
If the witness is none of these three, meaning he is an ordinary witness, directors, or stockholders. However, if the corporation happens to be a
the disqualification rule does not apply. plaintiff, and it presents its officers, directors, stockholders as its witness
to testify on facts prior to the death of the decedent, they are not
Garcia v. Robles disqualified under DMS, as was ruled in Lichauco v. Atlantic Gulf.
Facts: This involves a property owned by a spinster. During her lifetime, Lichauco v. Atlantic Gulf
she allowed someone to cultivate the land under a tenancy relationship.
When the spinster and the landowner died, their nephews and nieces Facts: This is involves the corporation Atlantic Gulf, the president of
succeeded. One of them is a certain Amanda who now administers the which is Fitzsimmons. During the lifetime of Fitzsimmons, he made some
property entered into a tenancy relationship with Pedro where both cash advances to the corporation but he failed to pay these advances
agreed to have Pedro as the sole tenant of the agricultural land subject until he died.
of the agreement.
Upon his death, his administrator Lichauco initiated a settlement of his
Subsequently however, Amanda, entered into tenancy agreement with estate. One of the claimants of the action is the corporation, Lichauco
the two sisters of Pedro. In this second relationship, Amanda and the and Company, to recover the advances Fitzsimmons made when he was
sisters that the latter are co- tenants along with Pedro. Having derived still alive and an officer of the corporation. To prove the existence of the
authority from the tenancy relationship, the sisters asserted right over claim, Lichauco and Company presented its accountant and assistant
the tenanted property claiming that they are also co-tenants and accountant. This is to establish that at the lifetime of Fitzsimmons, he
therefore entitled to enjoy the property. made some cash advances.
Heirs of Pedro refused to allow the sisters to share in the tenancy However, the testimonies of these accountants were objected to on the
causing the sisters to go to court annul the first tenancy. During the ground of the Dead Man Statute because Fitzsimmons is already dead
proceeding, the two sisters presented the affidavit of Amanda containing and the witnesses testified as to matters that occurred prior to his death.
a testimony of Amanda stating that Pedro admitted to her that his sisters
are co-tenants. The testimony of Amanda in this respect was objected Issue: Whether the testimonies of the accountants are admissible
to under DMS because Pedro is already dead. But the sisters argued that
such rule cannot be applied as Amanda was not the plaintiff, the Ruling: Yes. The SC overruled the objection because the Dead Man
plaintiffs being the sisters. Statute only works to disqualify the plaintiff, assignor of plaintiff, or
person in whose behalf the action is prosecuted. To hold that the statute
Held: SC said DMS disqualifies the plaintiff, the assignor of plaintiff, or disqualifies all persons from testifying who are officers or stockholders
persons in whose behalf the action is prosecuted. Amanda fall under an of a corporation would be equivalent to materially amending the statute
assignor of the plaintiff because the right asserted by the two sisters by judicial legislation.
emanated from the tenancy agreement that Amanda executed with
them. Being the source of that right, Amanda is deemed to be an In this case, the witnesses who were accountants are officers or
assignor of the plaintiffs. employees of the company. They have a personality separate and
distinct from the corporation. Since the accountants were not plaintiffs,
The Supreme Court held: assignors of plaintiff, or persons in whose behalf the action is
prosecuted, they are not disqualified from testifying.
“Thus, since Pedro is deceased, and Amanda’s declaration which
pertains to the leasehold agreement affects the 1996 "Kasunduan sa Important: The rule therefore is that if the plaintiff, assignor of
Buwisan ng Lupa" which she as assignor entered into with petitioners, plaintiff, or person in whose behalf the action is prosecuted is a juridical
and which is now the subject matter of the present case and claim entity, DMS does not apply. Any of the of the juridical entity’s officers,
against Pedro’s surviving spouse, such declaration cannot be admitted directors, stockholders, or employees may not be disqualified from
and used against the latter, who is placed in an unfair situation by testifying.
reason of her being unable to contradict or disprove such declaration as
a result of her husband-declarant Pedro’s prior death.” Q. Who is the “person in whose behalf the case is prosecuted”?
Guerrero v. St. Claire ANS: This simply relates to agency relation when someone authorizes
another to prosecute a case. This is principal-agent relationship.
The Supreme Court held: What the framers of this rule failed to appreciate is that when an action
is prosecuted on behalf of the principal, the plaintiff remains to be the
“Laura Cervantes and Jose Cervantes are not parties in the present case, principal. This is because the agent has no cause of action to act as a
and neither are they assignors of the parties nor "persons in whose plaintiff. You will note in the petition or complaint, the proper caption
behalf a case is prosecuted." They are mere witnesses by whose should be “X, as plaintiff, represented by Y, attorney-in-fact”. X is still
testimonies the plaintiffs aimed to establish that it was not Cristina the one disqualified. He is the one in whose behalf the case is being
Guerrero, but Andres Guerrero, who owned the disputed land at the prosecuted. It is still the same as plaintiff.
time of its alleged sale to Manuel Guerrero; that Cristina Guerrero did
not really sell but merely mortgaged the property to Manuel Guerrero.”
Q. When an insurance company files a case in the exercise of 1. DMS does not apply when the decedent was represented by
its subrogatory rights, where does it fall? Plaintiff or assignor? an agent during the transaction, and the agent is still alive.
ANS: When it is a corporation refer to the case of Lichauco v. Atlantic Again, one of the purposes of the Dead Man’s Statute is to level the
Gulf. But if the subrogee is a natural person, that subrogee is filing the playing field. So that even despite the death of the decedent, the field
case on its own behalf. As a subrogee, he has a cause of action. He can is equal in a sense that the decedent’s interest can still be protected,
be disqualified as a plaintiff. The subrogee does not represent anyone then the DMS also does not apply.
because the right belongs to him only that that right was acquired by
that party by reason of subrogation. This is different from a This happens when the facts about which the plaintiff assignor testified
representative. relates to a transaction that occurred before the death of the decedent,
but in that transaction, the decedent was represented by an agent and
The assignor on that case or the person from whom the subrogee the agent is still alive who can testify in court to controvert the testimony
acquired his right by reason of subrogation may also be disqualified. of the plaintiff or his assignor.
There are derivative rights.
Goni v. CA
4. Only extends to testimonies of facts that occurred prior to
Facts: This case involves a property owned by a certain Praxedes
the death of the decedent
Villanueva. He sold the property and executed a contract/promise to sell
in favor of Gaspar Vicente. In that contract, Villanueva was represented
Next requisite, not all testimonies of a plaintiff, assignor of plaintiff, or by his agent, Mr. Goni.
person in whose behalf the action is prosecuted can make a witness
disqualified; only testimonies of facts that occurred prior to the death of Fast forward, Villanueva died and so Goni assumed administration over
the decedent. the estate of Villanueva. In the process of settling the estate, Mr. Goni
prepared an inventory of the properties forming part of the estate of Mr.
One of the purposes of DMS is to level the playing field. This is premised Villanueva including the properties which Mr. Villanueva earlier sold to
on the theory that since the deceased is no longer around to refute the
Vicente during his lifetime. And so when Vicente learned that the
testimony of the surviving party, the rule disqualifies the surviving party properties which he already bought from Villanueva were included in the
from testifying. So, fair and square. Nobody is allowed to testify.
list of inventories, he filed an action against the estate of Villanueva to
recover the properties.
So that what is sought to be prohibited by this rule is a testimony relating
to a fact that occurred prior to the death of the decedent because this During the trial, Mr. Vicente testified that during the lifetime of Mr.
fact is presumably within the personal knowledge of the decedent. If
Villanueva, Villanueva sold the properties to him. However, the
only the decedent had been alive, he would have been able to controvert testimony of Vicente was objected to under the DMS because (1)
the testimony of the surviving party.
Villanueva is already dead and (2) Vicente testified as to the transaction
that occurred prior to the death of Mr. Villanueva.
Important: So that if the matter testified to by the witness is a fact
that the decedent had no personal knowledge, then it does not matter Ruling: SC said that the purpose of the DMS is, among others, to level
if the decedent is alive because even if he were alive, he would not have the playing field. The decedent would be at a disadvantage because he
been able to controvert it for absence of personal knowledge. The rule could not anymore tell his tale but the surviving party has all the
is specific. There is a cut off period (“prior to the death”). opportunity in the world to say his piece. Thus, to level the playing field,
the surviving party should likewise be disqualified from testifying.
Summary of Rules
In this case, while Villanueva cannot anymore testify, the transaction
1. If the facts occurred prior to the death of the decedent: that Vicente was talking about was something that the agent of
GR: Covered by DMS Villanueva had personal knowledge and therefore, Goni, the agent who
XPN: If the decedent had no personal knowledge acted for and in behalf of Villanueva when that contract was entered
into, can very well protect the interest of the deceased. In that respect,
2. If the facts occurred after the death – not covered by DMS the field is leveled. Thus, Vicente was not disqualified from testifying as
to this fact.
Important principles and doctrines relating to DMS
2. DMS does not apply if the deceased interposes a
Important principles: counterclaim against the complainant.
1. DMS does not apply when the decedent was represented by an In the same case of Goni, while the DMS applies when the estate of the
agent during the transaction, and the agent is still alive. deceased person is the party being attacked, the moment the estate of
the deceased person interposes a counterclaim against the claimant,
2. DMS does not apply if the deceased interposes a counterclaim and the claimant comes forward and testifies about the transaction that
against the complainant. occurred prior to the death of the decedent in an answer to a
counterclaim, the DMS also cannot apply.
3. DMS does not apply to testimonies facts which did not occur
This is because when that claimant testifies, he testifies in his dual
capacity as the plaintiff and at the same time as the defendant. In so
far as the counterclaim is concerned, the estate of the deceased person
becomes the claimant (the party attacking) and thus DMS no longer Marital Disqualification Rule (Spousal Immunity)
applies. So again, DMS applies if the estate is the defending party.15
3. DMS does not apply to testimonies facts which did not occur. Disqualification by reason of marriage. — During their marriage, neither
the husband nor the wife may testify for or against the other without
DMS covers only the testimony of a witness respecting the occurrence the consent of the affected spouse, except in a civil case by one against
of a fact. It does not apply if the testimony is that a certain fact did not the other, or in a criminal case for a crime committed by one against
occur. the other or the latter's direct descendants or ascendants.
The rule contemplates the application of DMS on positive acts. If the Important: The disqualified applies to testimonies for or against the
testimony is to the effect that a certain fact did not happen, that is not affected spouse, meaning whether the testimony is beneficial or
covered by the prohibition. detrimental.
Mendezona v. Vda. De Guitia General Rule: Neither the husband nor the wife may testify for or
against the other.
Facts: This arose from a claim against the estate of Benigno. He is a
manager of a partnership which includes as partners the plaintiffs. Exceptions:
1. In a civil case by one against the other
During the lifetime of Benigno, he was authorized by the plaintiffs to 2. In a criminal case for a crime committed by one against the other
manage the partnership business and collect in behalf of the plaintiffs or the latter's direct descendants or ascendants.
their profits in the partnership. Benigno must also remit the respective 3. If the affected spouse consents
shares to the plaintiffs.
Purpose of the rule
Over the years, Benigno complied with his duty until one time, he 1. The preserve marital relations
stopped the remittance of the plaintiffs’ shares. When Benigno died, the 2. To promote domestic peace and harmony
plaintiffs came forward with their claims against the estate of Benigno. 3. To prevent perjury
During the proceeding, the plaintiffs presented as evidence their
deposition taken abroad where they testified that within a certain period, Alvarez v. Ramirez
Benigno stopped remitting their shares in the partnership.
Facts: Maximo Alvarez was married Esperanza Alvarez. Six months
These testimonies were objected as against the Dead Man Statute before the incident, they separated de facto. As Maximo could not move
because: (a) Benigno is already dead, (b) it is an action against the on, he followed his wife who was then staying with her sister, and set
estate of Benigno, and (c) the witnesses are plaintiffs being the the house on fire. A case of arson was filed against him.
claimants against the estate.
During trial, the principal witness was his wife who claimed that she saw
Issue: Whether the depositions of the plaintiffs are admissible. her husband set the house on fire. Maximo moved for her
disqualification to testify under the marriage disqualification rule
Ruling: SC ruled that DMS disqualifies the plaintiff, assignor of plaintiff, because the marriage was then still subsisting.
or person in whose behalf the action is prosecuted from testifying as to
any fact occurred prior to the death of the decedent. Issue: Whether the wife is barred from taking the witness stand.
In this case, the testimony is to the effect that Benigno did not remit Ruling: No. The marital disqualification rule has its own exceptions, both
their shares in the partnership. It is a negative fact and therefore not in civil actions between the spouses and in criminal cases for offenses
covered by DMS. committed by one against the other.
Q. So if I testify to the effect that the decedent “did not pay”, Like the rule itself, the exceptions are backed by sound reasons which,
that is no longer covered by DMS? Isn’t that just semantics? in the excepted cases, outweigh those in support of the general rule.
For instance, where the marital and domestic relations are so strained
ANS: That’s the problem. This case had not yet been overruled. That’s that there is no more harmony to be preserved nor peace and tranquility
why I said that this case is really weird. This is an overstretching of the which may be disturbed, the reason based upon such harmony and
rule just to accommodate the ends of justice. According to SC in that tranquility fails. In such a case, identity of interests disappears and the
case, DMS is not supposed to promote and encourage miscarriage of consequent danger of perjury based on that identity is non-existent.
justice. SC was really convinced on the legitimacy of the claim and if
their claim would be barred under DMS, then this doctrine will become Likewise, in such a situation, the security and confidences of private life,
a tool for injustice. SC has no pattern when it comes to decisions which the law aims at protecting, will be nothing but ideals, which
affecting substantial justice. through their absence, merely leave a void in the unhappy home.
Obviously, the offense of arson attributed to petitioner, directly impairs
the conjugal relation between him and his wife Esperanza. His act, as
15
EXTRA DISCUSSION: (1) If it’s a compulsory counterclaim, then it should be connected. A
compulsory counterclaim is a claim that arose out of the principal claim. (2) In the case of Goñi,
the complaint as well as the counterclaim were all intertwined and intimately related to the
transaction (the sale of the property).
embodied in the Information for arson filed against him, eradicates all Purpose of the Privileged Communication Rule
the major aspects of marital life such as trust, confidence, respect and
love by which virtues the conjugal relationship survives and flourishes. 1. To encourage free flow of communication to enable the party to
perform his obligation effectively to the other
The disqualification is co-terminus with the marriage
2. To protect the confidential nature of the obligation
GR: As long as the marriage subsists, the disqualification applies.
XPN: If the marriage, although subsisting, is so strained that the purpose Marital Privileged Communication
for the disqualification does not exist anymore. (Alvarez v. Ramirez)
Q. Who is disqualified, and who may invoke? (a) The husband or the wife, during or after the marriage, cannot be
A. Witness spouse – one disqualified to testify examined without the consent of the other as to any communication
B. Affected spouse – one who may invoke the rule received in confidence by one from the other during the marriage except
in a civil case by one against the other, or in a criminal case for a crime
Important: The holder of the privilege is the affected spouse. It is committed by one against the other or the latter's direct descendants or
personal. Thus, the witness spouse may not testify without the consent ascendants.
of the affected spouse. Conversely, if the affected spouse consents, the
witness cannot insist otherwise – because again, the privilege belongs General Rule: During the marriage, the spouses may not be examined
to the affected spouse. as to any communication received in confidence by one from the other.
Q. Will the marital disqualification rule apply in cases of void Exceptions:

marriages? 1. In a civil case by one against the other
2. In a criminal case for a crime committed by one against the other
ANS: The popular opinion is that, if the marriage is void, the or the latter's direct descendants or ascendants.
disqualification will not apply as it applies only to valid marriages. 3. If the other consents
However, this must be revisited to be in harmony with the recent case
where the Supreme Court held that a void marriage is presumed valid Requisites:
unless declared void by the court. 1. There must be a valid marriage
2. The communication must be given in confidence
Privileged Communication
Marital Disqualification v. Marital Privileged Communication
Privileged communication
Rule 130, Section 24, ROC Marital disqualification Marital Privileged

The following persons cannot testify as to matters learned in confidence Rule (Spousal Immunity) Communication
1. Spouses
2. Lawyer (In a lawyer-client relationship)
3. Physician (In a physician-patient relationship)
Disqualification is co-terminus
4. Priest (In a priest-penitent relationship)
with the existence of the Privilege survives the marriage
5. Public officer
marriage
Other privileges not found in the Rules of Court

6. Newsman’s privilege
The witness spouse may or It is not required the spouses or
7. Parental and filial privilege
may not be a party to the any of them must be a party to a
8. Information in conciliation proceedings
case, but the affected spouse case, so long as the disclosure of
9. Data Privacy Act
must be a party to the case the confidential information
between them is sought.
Principles common to all forms of privileged communication
A. May only be invoked by the privilege holder (person whose interest

is sought to be protected by the privileged communication rule) Q. What is meant by communication must be given “in
confidence”?
Exceptions:
ANS: It means that the source of the information would not have
1. When holder is deceased or incapacitated – the privilege may disclosed the information to the other had he known that someone is
be invoked by the representative, administrator, executor or listening. The intention of the source is to limit the information to the
guardian knowledge of the intended recipient.
2. When holder is still alive and of sound mind but is absent –
the privilege may be invoked by the court or the recipient of Important: Thus, if the the communication, otherwise privileged, falls
the privileged communication into the hands of a third party, legally or illegally, the confidential nature
of the obligation is thereby extinguished. Therefore, that communication
B. The privileged communication survives the death of the parties. can now be disclosed even over the objection of the source of the
information.
C. Can be waived by failure to object.
People v. Carlos Purpose

To encourage free flow of information between the lawyer and the
Facts: Carlos was prosecuted for the murder Dr. Sityar in the latter’s
client, the objective being, to enable the lawyer to effectively perform
office. It was alleged that Carlos’ wife was brought to the Dr. Sityar for
his official function as counsel. The best way achieve this purpose is by
a surgical operation but the latter took advantage of the wife. Two days
assuring that whatever information, however incriminating, given by the
later, Carlos stabbed the doctor to death.
client to the lawyer is protected by the rule on confidentiality.
In order to prove evident premeditation, the prosecution presented a
Q. Who owns the privilege?
letter written to Carlos by his wife, two days before the commission of
the crime. The letters shows that the wife, the writer, feared that Carlos
ANS: The client (the party whose interest the rule seeks to protect).
would to physical violence in dealing with Dr. Sityar. This letter was
Thus, the lawyer may not be examined without the consent of the client.
seized by the police in the house of Carlos when he was arrested.
Communications covered
In his defense, Carlos argued that such letter is inadmissible because it
1. Communication made by the client to the lawyer
is a privileged communication. Hence, there is no evidence that there
2. The laywer’s advice to the client whether in the course of, or in
was evident premeditation. Being so, Carlos argued that he cannot be
view of professional employment
convicted with murder but only with homicide at the very least.
Important: “With a view to professional employment”. It means that
Issue: Whether the letter is a privileged communication.
the rule does not require a perfected lawyer-client relationship.
Otherwise, without that clause, it would be extremely risky to consult a
Ruling: No. The letter is not a privileged communication. However,
lawyer for the first time and communicate sensitive information without
despite not being a privileged communication, the same is inadmissible.
the protection of confidentiality.
The numerical weight of authority is to the effect that where a privileged

Requisites:
communication from one spouse to another comes into the hands of a
third party, whether legally or not, without collusion and voluntary
1. The communication must be given in confidence.
disclosure on the part of either of the spouses, the privilege is thereby
extinguished and the communication, if otherwise competent, becomes
If communication is given in the presence of any other person, the
admissible.
communication is not intended to be confidential, and therefore
not covered by the privilege.
However, the letter is inadmissible for a different reason. This is because
the letter was written by the wife of Carlos but she did not testify during
US v. Gordon-Nikkar
the trial. Hence, the letter is therefore nothing but pure hearsay and its
admission in evidence violates the constitutional right of the defendant A communication divulged to "strangers" or outsiders can scarcely
in a criminal case to be confronted with the witnesses for the be considered a confidential communication between attorney and
prosecution and have the opportunity to cross-examine them. client. Therefore, this communication is not protected by the
attorney-client privilege.
Hence, Carlos is guilty of simple homicide only, without aggravating or
extenuating circumstances. The presence of evident premeditation was Uichico v. Union Assurance Life
not proved.
Communication made by a client to his attorney for the express
purpose of its being communicated to a third person is essentially
Q. Are confidential communications given in a void marriage
inconsistent with the confidential relation. When the attorney has
considered privileged communication?
faithfully carried out his instructions by delivering the
communication to the third person for whom it was intended and
ANS: (Sir’s opinion) A marriage is presumed to be valid until declared the latter acts upon it, it cannot, by any reasoning whatever, be
void. Only the court has the authority to declare a marriage void. Thus,
classified in a legal sense as a privileged communication between
communications given in a void marriage before declaration of nullity
the attorney and his client. It is plain that such a communication,
should be considered as privileged communication.
after reaching the party for whom it was intended at least, is a
communication between the client and a third person, and that the
Lawyer-Client Privileged Communication attorney simply occupies the role of intermediary or agent.
Rule 130, Section 24, ROC Barton v. Leyte Asphalt

(b)An attorney cannot, without the consent of his client, be examined
as to any communication made by the client to him, or his advice given Even supposing that the letter was within the privilege which
thereon in the course of, or with a view to, professional employment, protects communications between attorney and client, this
nor can an attorney's secretary, stenographer, or clerk be examined, privilege was lost when the letter came to the hands of the adverse
without the consent of the client and his employer, concerning any fact and it makes no difference how the defense acquired possession.
the knowledge of which has been acquired in such capacity.
The law protects the client from the effect of disclosures made by
Important: The disqualification extends to the lawyer’s secretary, him to his attorney in the confidence of the legal relation, but when
stenographer and clerk with respect to any fact or knowledge which they such a document, containing admissions of the client, comes to the
acquired in such capacities.
hand of a third party, and reaches the adversary, it is admissible in Physician-Patient Privileged Communication
evidence.16
2. The communication or advice must be given either in the (c) A person authorized to practice medicine, surgery or obstetrics
course of the professional employment, or with a view to cannot in a civil case, without the consent of the patient, be examined
professional employment, respecting a past act or crime. as to any advice or treatment given by him or any information which he
may have acquired in attending such patient in a professional capacity,
The communication must be for a legitimate purpose, and must be which information was necessary to enable him to act in capacity, and
related to a past crime, and not an ongoing or a future crime. which would blacken the reputation of the patient.
People v. Sandiganbayan Important: This does not only cover the oral testimony of the
physician, but also medical records. These medical records serve as the
A distinction must be made between confidential communications
repository of all findings, diagnosis and treatment administered by the
relating to past crimes already committed, and future crimes
physician to the patient. Thus, producing the medical records is no
intended to be committed, by the client. It is admitted that the
different from the physician himself testifying. (Chan v. Chan)
announced intention of a client to commit a crime is not included
within the confidences which his attorney is bound to respect.
Requisites:
In other words, if a client seeks lawyer’s advice with respect to a
1. Applies only in civil cases
crime that the former has committed, he is given the protection of
a virtual confessional seal which the attorney-client privilege
Reason: Criminal prosecution is more paramount than the interest
declares cannot be broken by the attorney without the client’s
of the patient. (tricky question asked in the previous exam)
consent. The same privileged confidentiality, however, does not
attach with regard to a crime which a client intends to commit
2. May only be invoked against a person authorized to
thereafter or in the future and for purposes of which he seeks the
practice medicine, surgery or obstetrics
lawyer’s advice.
Krohn v. CA
In order that a communication between lawyer and client to be
privileged, it must be for a lawful purpose or in furtherance of a Facts: The husband was able to secure a copy of the confidential
lawful end. The existence of an unlawful purpose prevents the psychiatric report which he presented in evidence in a petition for
privilege from attaching. annulment of marriage against his wife grounded on psychological
incapacity. The witness testifying on the report is the husband who
US v. Gordon-Nikkar initiated the annulment proceedings, not the physician who
prepared the report.
But even if it appeared that the communication were otherwise
privileged (i.e. that the communication was considered confidential
The wife objected to under patient-physician privilege.
despite the presence of a stranger), the testimony was nonetheless
admissible. The conversations in question dealt with plans to
Ruling: The privilege only covers person authorized to practice
commit perjury so as to hide the criminal activity of accused and
medicine, surgery or obstetrics. The husband does not fall under
others. It is beyond dispute that the attorney-client privilege does
any of the three, therefore, not covered by the privilege.
not extend to communications regarding an intended crime.
3. Covers only information that if disclosed, will blacken the
Principle of Common Defense or Joint Interest
reputation of the patient.
Any information that one party may relay to the lawyer of another party
with respect to matters of common interest or joint defense. Here, even
TN: Thus, if beneficial to the patient – not covered.
if the communication is made not by a client to a lawyer or made by a
lawyer to a non-client, the privilege still applies.
4. Covers any information, treatment or advice given in the
course of a professional employment.
US v. McPartlin
This is a situation where the accused is not the client of the lawyer, but The information, advice or treatment must be for a legitimate
relayed information to the lawyer – lawyer representing his co-accused. purpose, and not in furtherance of some criminal activity or
Any information made by the accused to the lawyer of the co-accused purpose. Otherwise, the privilege will not apply.
on matters of common interest, notwithstanding the absence of a
lawyer-client relationship, is considered privileged communication. Example: A physician who administers abortion on a patient may
be examined on any information made or treatment given.
Important: The fact of consultation is not covered by the

privilege.
16
According to Wigmore: “Since the means of preserving secrecy of communication are entirely with or without the client's knowledge, is not within the protection of the privilege. The same
in the client's hands, and since the privilege is a derogation from the general testimonial duty rule ought to apply to one who surreptitiously reads or obtains possession of a document in
and should be strictly construed, it would be improper to extend its prohibition to third persons original or copy.”
who obtain knowledge of the communications. One who overhears the communication, whether
Lim v. CA The President and those who assist him must be free to explore
alternatives in the process of shaping policies and making decisions and
It is to be emphasized that it is the tenor only of the communication
to do so in a way many would be unwilling to express except privately.
that is privileged. The mere fact of making a communication, as
well as the date of a consultation and the number of consultations,
US v. Nixon
are therefore not privileged from disclosure, so long as the subject
communicated is not stated. Executive privilege cannot be invoked in its general sense. The
invocation can only be justified on matters affecting military, diplomatic
5. Treatment must be given in the doctor’s professional and national security.
capacity
Newsman’s Privilege
Lim v. CA
RA No. 1477, Section 1
The physician may be considered to be acting in his professional
Without prejudice to his liability under the civil and criminal laws, the
capacity when he attends to the patient for curative, preventive, or
publisher, editor, columnist or duly accredited reporter of any
palliative treatment. Thus, only disclosures which would have been
newspaper, magazine or periodical of general circulation cannot be
made to the physician to enable him "safely and efficaciously to
compelled to reveal the source of any news-report or information
treat his patient" are covered by the privilege.
appearing in said publication which was related in confidence to such
publisher, editor or reporter unless the court or a House or committee
TN: Results of autopsies may not be deemed covered by the
of Congress finds that such revelation is demanded by the security of
privilege because autopsies are not intended for treatment.
the State.
6. Information must be given in confidence

General rule: Publishers, editors, columnists or reporters cannot be
compelled to reveal their source.
Information elicited during consultation with a physician in the
presence of third parties removes such information from the mantle
Exception: If the court finds that the disclosure is required by national
of the privilege.
security.
Priest-Penitent Privileged Communication Q. So what is the remedy of the aggrieved party?

ANS: Sue them, i.e. libel, because the law provides the privilege it is
(d) A minister or priest cannot, without the consent of the person
without prejudice to their civil or criminal liability.
making the confession, 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 minister or priest belongs. Parental and Filial Privilege

Requisites:
Parental and filial privilege. — No person may be compelled to testify
1. Information must be given or received during confession against his parents, other direct ascendants, children or other direct
2. The priest or minister must be duly ordained by the church descendants.
Important: The information or advice must be given in the course of Exception:

the professional character of the priest of minister. It should thus be No descendant shall be compelled, in a criminal case, to testify against
for a legitimate purpose. Otherwise, if made in furtherance of some his parents and grandparents, except when such testimony is
crime, the privileged communication rule does not apply. indispensable in a crime against the descendant or by one parent against
the other. (Article 215, Family Code)
TN: Future crimes – not covered. Past crimes – covered.
Requisites:
1. Criminal case
Privileged Communication with Public Officers
2. Testimony is indispensable in a crime against the descendant or by
Rule 130, Section 24, ROC one parent against the other.
(e) A public officer cannot be examined during his term of office or
afterwards, as to communications made to him in official confidence, Parental privilege
when the court finds that the public interest would suffer by the A parent cannot be compelled to testify against his child or other direct
disclosure. descendants.
Important: The rule only applies when the court finds that the public Filial privilege
interest would suffer by the disclosure. A child cannot be compelled to testify against his parent or other direct
ascendants.
Principle of Executive Privilege
The power of the government to withhold information from the public, Important: What is prohibited is only compulsory testimony. Thus,
the courts, and the Congress. voluntary testimony is allowed.

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EVIDENCE l Midterm l Atty.

Joseph Randi Torregosa l For the exclusive use of EH 404 AY 2016-2017

1. Real Evidence Authentication, defined

Ex: Blood, poison, liquid substances, powder. 2. Inventory and photograph-taking

Q. How do you authenticate each and every link of the chain?

In the same case, the court held: Rules:

People v. Hubert Webb Best Evidence Rule

Rule 140, Section 4. Original of document. —

(b) When a document is in two or more copies executed at or about

(c) When an entry is repeated in the regular course of business, one

Accuracy and precision are important in disputes involving

There is no margin of inaccuracy if the original is presented

1. Collateral Fact Rule (b) In establishing the fact of death

Arceo v. People (The same principle was applied)

Exceptions to the BER (Rule 130, Section 3) Citibank v. Teodoro

2-Prove fact of loss of original (c) Testimony of witnesses

Requisites for second exception to apply:

2. Prove that the original is in the possession of the adverse party

Scanning 2. A printout readable by sight or other means.

Q. How to authenticate ephemeral electronic communication?

(a) By evidence that it had been digitally signed by the person

(b) By evidence that other appropriate security procedures or devices

Important: So if a telephone call is made and the conversation is not

Parol Evidence Rule Balungot v. Poblete

Yutek and Co. v. Gonzales Foundation of PER is a written or contractual agreement

Lechugas v. Court of Appeals Q. Was the wife a successor-in-interest of the senior?

(a) An intrinsic ambiguity, mistake or imperfection in the written

Intrinsic Ambiguity, Mistake or Imperfection

Every child is presumed to be competent

Q. Will the marital disqualification rule apply in cases of void Exceptions:

Rule 130, Section 24, ROC Marital disqualification Marital Privileged

Other privileges not found in the Rules of Court

A. May only be invoked by the privilege holder (person whose interest

People v. Carlos Purpose

The numerical weight of authority is to the effect that where a privileged

Rule 130, Section 24, ROC Barton v. Leyte Asphalt

Important: The fact of consultation is not covered by the

6. Information must be given in confidence

Priest-Penitent Privileged Communication Q. So what is the remedy of the aggrieved party?

Rule 130, Section 25, ROC

Important: The information or advice must be given in the course of Exception:

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