Reviewer

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Section 5. Bail, when discretionary. — Upon application for bail on ground of habitual
conviction by the Regional Trial Court of an delinquency? (A) Yes, the felonies are both
offense not punishable by death, reclusion punishable under the Revised Penal Code. (B)
perpetua, or life imprisonment, admission to bail is Yes, her twin convictions indicated her
discretionary. The application for bail may be filed criminal inclinations. (C) No, the felonies
and acted upon by the trial court despite the filing fall under different titles in the Revised
of a notice of appeal, provided it has not Penal Code. (D) No, the charges are both
transmitted the original record to the appellate bailable.
court. However, if the decision of the trial court
convicting the accused changed the nature of the Bar Exam Question 2011
offense from non-bailable to bailable, the (28) Berto was charged with and convicted of
application for bail can only be filed with and violating a city ordinance against littering in
resolved by the appellate court. public places punishable by imprisonment of
one month or a fine of P1,000.00. But the
Should the court grant the application, the city mayor pardoned him. A year later, he
accused may be allowed to continue on was charged with violating a city ordinance
provisional liberty during the pendency of the against jaywalking which carried the same
appeal under the same bail subject to the consent penalty. Need Berto post bail for such
of the bondsman. offense? (A) Yes, his previous conviction
requires posting of bail for the present
If the penalty imposed by the trial court is charge. (B) Yes, since he may be deemed to
imprisonment exceeding six (6) years, the have violated the terms of his pardon. (C) No,
accused shall be denied bail, or his bail shall be because he is presumed innocent until
cancelled upon a showing by the prosecution, with proven otherwise. (D) No, one charged with
notice to the accused, of the following or other the violation of a city ordinance is not
similar circumstances: required to post bail, notwithstanding a
previous pardon.
(a) That he is a recidivist, quasi-recidivist, or
habitual delinquent, or has committed the Section 6. Capital offense defined. — A capital
crime aggravated by the circumstance of offense is an offense which, under the law existing
reiteration; at the time of its commission and of the
application for admission to bail, may be punished
(b) That he has previously escaped from legal with death. (6a)
confinement, evaded sentence, or violated the
conditions of his bail without valid justification; NOTE: If the law at the time of the commission
does not impose the death penalty, the
(c) That he committed the offense while under subsequent amendment of the law increasing
probation, parole, or conditional pardon; the penalty cannot apply to the case, otherwise
it would be ex post facto, and penalties are
(d) That the circumstances of his case determined at the time of the commission of the
indicate the probability of flight if released on offense.
bail; or
If the law at the time of the application for bail
has amended the prior law, which impose the
(e) That there is undue risk that he may
death penalty by reducing such penalty, such
commit another crime during the pendency of
favorable law, generally has a retro-active effect
the appeal.
(art. 22, RPC).
The appellate court may, motu proprio or on Bar Exam Question 2011
motion of any party, review the resolution of the (58) Which of the following states a correct
Regional Trial Court after notice to the adverse guideline in hearing applications for bail in
party in either case. (5a) capital offenses? (A) The hearing for bail in
capital offenses is summary; the court
Bar Exam Question 2011 does not sit to try the merits of the case.
(3) Angie was convicted of false testimony and (B) The prosecution’s conformity to the
served sentence. Five years later, she was accused’s motion for bail is proof that its
convicted of homicide. On appeal, she applied evidence of his guilt is not strong. (C) The
for bail. May the Court of Appeals deny her accused, as applicant for bail, carries the
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 401

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burden of showing that the prosecution’s appealed from the decision but B and C did not. B
evidence of his guilt is not strong. (D) The started serving his sentence but C escaped and is at
prosecution must have full opportunity to large. In the Court of Appeals, A applied for bail but
prove the guilt of the accused. was denied. Finally, the Court of Appeals rendered a
decision acquitting A on the ground that the evidence
pointed to the NPA as the killers of the victim.
Section 7. Capital offense or an offense 1 Was the Court of Appeal's denial of A's
punishable by reclusion perpetua or life application for bail proper? [2%]
imprisonment, not bailable. — No person 2 Can B and C be benefited by the decision of the
charged with a capital offense, or an offense Court of Appeals? [3%]
punishable by reclusion perpetua or life SUGGESTED ANSWER:
imprisonment, shall be admitted to bail when 1, Yes, the Court of Appeals properly denied A's
evidence of guilt is strong, regardless of the stage application for bail. The court had the discretion to do
of the criminal prosecution. (7a) so. Although A was convicted of homicide only, since
he was charged with a capital offense, on appeal he
NOTE: RA 9346 (AN ACT PROHIBITING THE could be convicted of the capital offense. (Obosa vs.
Court of Appeals, 266 SCRA 281.)
IMPOSITION OF DEATH PENALTY IN THE ALTERNATIVE ANSWER:
PHILIPPINES, June 24,2006) abolished (may be Under Circular No. 2-92, A is entitled to bail because
called suspended because the constitution itself he was convicted of homicide and hence the evidence
did not totally abolished death penalty). Hence of guilt of murder is not strong.
there is no more capital offense. SUGGESTED ANSWER:
2. B, who did not appeal, can be benefited by the
GR: No bail if charge is a capital offense or is decision of the Court of Appeals which is favorable
punishable by reclusion perpetua or life and applicable to him. (Sec. 11 [a]. Rule 122, Rules of Criminal
imprisonment AND evidence of guilt is strong. Procedure.) The benefit will also apply to C even if his
appeal is dismissed because of his escape.
REASON: One who faces a probable death
sentence has a particularly strong temptation to Section 8. Burden of proof in bail application.
flee. — At the hearing of an application for bail filed by
a person who is in custody for the commission of
Exception: If the accused charged with a capital an offense punishable by death, reclusion
offense is a minor. perpetua, or life imprisonment, the prosecution
For the purposes of recommending the has the burden of showing that evidence of guilt is
amount of bail, the privileged mitigating strong. The evidence presented during the bail
circumstance of minority shall be hearing shall be considered automatically
considered (sec. 34 RA 9344 (JUVENILE reproduced at the trial, but upon motion of either
JUSTICE AND WELFARE ACT OF 2206). party, the court may recall any witness for
additional examination unless the latter is dead,
NOTE: RA9344 suspends the sentence of outside the Philippines, or otherwise unable to
persons convicted of an offense while they were testify. (8a)
below 18 years of age. For those committed by
minors 15 years old and below, there is no
criminal liability, only civil. Minors more that 15 but Bail (2002)
not more than 18 must have acted with D was charged with murder, a capital offense. After
discernment. Otherwise, they have no criminal arraignment, he applied for bail. The trial court
liability. ordered the prosecution to present its evidence in full
on the ground that only on the basis of such
NOTE: Even though the penalty provided by law is presentation could it determine whether the evidence
reclusion perpetua or life imprisonment or death, if of D’s guilt was strong for purposes of bail. Is the
such penalty is not likely to be imposed on ruling correct? Why? (3%)
SUGGESTED ANSWER:
account of the attendance of (privileged) mitigating
circumstances, the crime does not fall under the No, the prosecution is only required to present as
category of a capital offense for purposes of bail much evidence as is necessary to determine whether
(Bravo, Jr. vs. Borja, 134 SCRA 466). the evidence of D’s guilt is strong for purposes of
bail.(Rule 114, sec. 8).
Bail; Appeal (1998)
In an information charging them of Murder,
NOTES: Bail hearing is mandatory. Granting
policemen A, B and C were convicted of Homicide. A
bail without hearing is gross ignorance of the law

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subjects the judge to administrative liabilities and CAEL GLORIOSO and ATTY. MIRIAM S.
even dismissal from office [the judge was fined in LORINA-RENTOY, complainants, vs. JUDGE
the amount of 20, 000 pesos] (Taborite vs. LORINDA B. TOLEDO-MUPAS, MTC-
Sollesta, AM No. MTJ-02-1388 , Aug. 12, 2003). Dasmariñas, Cavite, respondent)
Q. What is the administrative liability of a judge Comment: It is the DOJ Prosecutor who has the
who granted an application for bail without legal authority to determine the crime probably
conducting a hearing as required in Sec. 8 of committed by the accused which is to be charged
Rule 114? in the information. The authority of the judge to
determine what was the crime actually committed
Ans. Gross ignorance of the law and for by the accused comes in only after the trial on the
incompetence. merits. (Ucat)
The Bitoon Doctrine. Exhaustion of judicial EVIDENCE OF GUILT IS STRONG WHEN

remedies not required before filing Proof is evident or the presumption of guilt is
administrative charge against judge provided strong. The test is not whether the evidence
the complaint does not request that the establishes guilt beyond reasonable doubt but
respondent’s questioned order be nullified . whether it shows evident guilt or great
(EN BANC ,A.M. No. MTJ-05-1598. January 23, 2006 presumption of guilt.
LEONORA BITOON, FLORENCIO CANTADA, ANITA
MENDOZA, CAEL GLORIOSO and ATTY. MIRIAM S.
The court’s order granting or denying bail must
CLORINA-RENTOY, complainants, vs. JUDGE LORINDA B.
TOLEDO-MUPAS, MTC-Dasmariñas, Cavite, respondent). contain a summary of evidence of the prosecution
(P. vs. Judge Cabral, GR NO. 131909, Feb. 18,
1999).
The hearing should be summary or otherwise in
the discretion of the court. The burden of proving Note here that the evidence produced in the bail
that the guilt of the accused is strong lies within hearing automatically forms part of the evidence of
the prosecution (Comia vs.Antona, 337 SCRA the case on trial. This is different from the
656). evidence produced during the PI which is not
automatically reproduced on trial.
Q. What is the right of the accused (applicant)
during the bail hearing? Section 9. Amount of bail; guidelines. — The
judge who issued the warrant or granted the
Ans. The right to cross examination (of application shall fix a reasonable amount of bail
prosecution witnesses) and to introduce his own considering primarily, but not limited to, the
evidence in rebuttal. (Basco vs Rapatalo, A.M.No. following factors:
RTJ-96-1335, 5 March 1997, 269 SCRA 220,
225).
(a) Financial ability of the accused to give bail;
(b) Nature and circumstances of the offense;
Q. Where the accused is charged with murder,
(c) Penalty for the offense charged;
would it be tenable for the court to grant his
(d) Character and reputation of the accused;
application for bail on a finding that the crime
(e) Age and health of the accused;
committed by the accused was only homicide?
(f) Weight of the evidence against the
Ans. No. It is a well-settled rule that the judge accused;
(g) Probability of the accused appearing at the
conducting a bail hearing (preliminary
trial;
investigation during the time when judges of the
(h) Forfeiture of other bail;
town courts were not yet divested of such
(i) The fact that accused was a fugitive from
authority effective Oct. 3, 2005) has no legal
justice when arrested; and
authority to determine the character of the crime.
(j) Pendency of other cases where the
The only authority of the judge during the bail
accused is on bail.
hearing is to determine whether the evidence of
guilt is strong, but he has no authority to reduce or
change the crime charged in order to justify the Excessive bail shall not be required. (9a)
grant of bail to the accused. (Depamaylo vs
Brotarlo, A.M. No. MTJ-92-731, 29 Nov. 1996, 265 NOTE: But, at the bottom, in bail fixing, the
SCRA 151, 157, cited in . EN BANC, A.M. No. principal factor considered, to the determination
MTJ-05-1598. January 23, 2006 A BITOON, of which most other factors are directed, is the
FLORENCIO CANTADA, ANITA MENDOZA, probability of the appearance of the accused, or

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of his flight to avoid punishment (Villaseñor vs. NOTE: Philippine residency is required of a
Abano, 21 SCRA 312). property bondsman. The reason for this is that
bondsmen in criminal cases, residing outside of
Section 10. Corporate surety. — Any domestic or the Philippines, are not within the reach of the
foreign corporation, licensed as a surety in processes of the court (Villaseñor vs. Abano,
accordance with law and currently authorized to supra).
act as such, may provide bail by a bond
subscribed jointly by the accused and an officer of Section 13. Justification of sureties. — Every
the corporation duly authorized by its board of surety shall justify by affidavit taken before the
directors. (10a) judge that he possesses the qualifications
prescribed in the preceding section. He shall
Section 11. Property bond, how posted. — A describe the property given as security, stating the
property bond is an undertaking constituted as nature of his title, its encumbrances, the number
lien on the real property given as security for the and amount of other bails entered into by him and
amount of the bail. still undischarged, and his other liabilities. The
court may examine the sureties upon oath
concerning their sufficiency in such manner as it
Within ten (10) days after the approval of the
may deem proper. No bail shall be approved
bond, the accused shall cause the annotation of
unless the surety is qualified. (13a)
the lien on the certificate of title on file with the
Register of Deeds if the land is registered, or if
unregistered, in the Registration Book on the PURPOSE
space provided therefor, in the Registry of Deeds To enable the judge to determine whether or not
for the province or city where the land lies, and on the surety possesses the qualification to act as
the corresponding tax declaration in the office of such, especially his financial worth.
the provincial, city and municipal assessor
concerned. The justification being under oath, any falsity
introduced thereto by the surety would render him
liable for perjury
Within the same period, the accused shall submit
to the court his compliance and his failure to do so
shall be sufficient cause for the cancellation of the Section 14. Deposit of cash as bail. — The
property bond and his re-arrest and detention. accused or any person acting in his behalf may
(11a) deposit in cash with the nearest collector or
internal revenue or provincial, city, or municipal
treasurer the amount of bail fixed by the court, or
Section 12. Qualifications of sureties in
recommended by the prosecutor who investigated
property bond. — The qualification of sureties in
or filed the case. Upon submission of a proper
a property bond shall be as follows:
certificate of deposit and a written undertaking
showing compliance with the requirements of
(a) Each must be a resident owner of real section 2 of this Rule, the accused shall be
estate within the Philippines; discharged from custody. The money deposited
shall be considered as bail and applied to the
(b) Where there is only one surety, his payment of fine and costs while the excess, if any,
real estate must be worth at least the shall be returned to the accused or to whoever
amount of the undertaking; made the deposit. (14a)
(c) If there are two or more sureties, each Section 15. Recognizance. — Whenever allowed
may justify in an amount less than that by law or these Rules, the court may release a
expressed in the undertaking but the person in custody to his own recognizance or that
aggregate of the justified sums must be of a responsible person. (15a)
equivalent to the whole amount of bail
demanded. RECOGNIZANCE
This refers to an obligation of record, entered into
In all cases, every surety must be worth the before some court or officer authorized to take it
amount specified in his own undertaking over and with a condition to do some particular act, the
above all just debts, obligations and properties most usual condition in criminal cases being the
exempt from execution. (12a) appearance of the accused on trial.

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NOTE: There may be a case where the accused UNDER THE REVISED RULES OF SUMMARY
is released on his own recognizance, which PROCEDURE
means that he has become his own jailer. GR: NO BAIL
EXCEPTIONS:
Section 16. Bail, when not required; reduced 1. Where a warrant of arrest is issued for
bail or recognizance. — No bail shall be required failure to appear when required by the
when the law or these Rules so provide. court;
2. When accused:
When a person has been in custody for a period Is a recidivist;
equal to or more than the possible maximum Is a fugitive from justice;
imprisonment prescribe for the offense charged, Is charged with physical injuries;
he shall be released immediately, without Does not reside in the place
prejudice to the continuation of the trial or the where the violation of the law or
proceedings on appeal. If the maximum penalty to ordinance is committed;
which the accused may be sentenced is destierro, Has no known residence.
he shall be released after thirty (30) days of
preventive imprisonment.
A person in custody for a period equal to or more Section 17. Bail, where filed. —
than the minimum of the principal penalty
prescribed for the offense charged, without (a) Bail in the amount fixed may be filed
application of the Indeterminate Sentence Law or with the court where the case is pending,
any modifying circumstance, shall be released on or in the absence or unavailability of the
a reduced bail or on his own recognizance, at the judge thereof, with any regional trial judge,
discretion of the court. (16a) metropolitan trial judge, municipal trial
judge, or municipal circuit trial judge in the
NOTE: The first paragraph of this section is province, city, or municipality. If the
substantially from the last par. of art. 29, RPC. accused is arrested in a province, city, or
municipality other than where the case is
RELEASED WITHOUT BAIL pending, bail may also be filed with any
regional trial court of said place, or if no
1. Offense charged is violation of an judge thereof is available, with any
ordinance, light felony or a criminal metropolitan trial judge, municipal trial
offense, the imposable penalty wherefore judge, or municipal circuit trial judge
does not exceed 6 months and/or a fine of therein.
2,000 under RA 6036;
2. Where the accused has applied for (b) Where the grant of bail is a matter of
probation and before the same has been discretion, or the accused seeks to be
resolved but no bail was filed or the released on recognizance, the application
accused is incapable of filing one, in may only be filed in the court where the
which case he may be released on case is pending, whether on preliminary
recognizance; investigation, trial, or on appeal.
3. In case of a youthful offender held for
physical or mental examination, trial, or (c) Any person in custody who is not yet
appeal, if unable to furnish bail and under charged in court may apply for bail with
the circumstances under PD 603 as any court in the province, city, or
amended (this is already modified by RA municipality where he is held. (17a)
9344);
4. Cases falling under art. 29 last par., RPC.
NOTE: As an addition, (d) if the decision
of the trial court convicting the accused
changed the nature of the offense from
ON REDUCED BAIL OR ON HIS OWN
non-bailable to bailable, the application for
RECOGNIZANCE
bail can only be filed and resolved by the
appellate court (sec. 5, Rule114).
1. When had already served the minimum
term, without applying the provisions of
the ISL and the modifying circumstances; Bail; Application; Venue (2002)

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If an information was filed in the RTC-Manila of guilt appears to the court, be required to give
charging D with homicide and he was arrested in bail in the amount fixed, or in lieu thereof,
Quezon City, in what court or courts may he apply for committed to custody. (20a)
bail? Explain. (3%)
SUGGESTED ANSWER: NOTE: Where the offense is bailable as a matter
D may apply for bail in the RTC-Manila where the of right, the mere probability that the accused will
information was filed or in the RTC-Quezon City escape, or even if he had previously escaped from
where he was arrested, or if no judge, thereof is detention, does not deprive him of his right to bail.
available, with any metropolitan trial judge, municipal The remedy is to INCREASE the amount of bail,
trial judge or municipal circuit trial judge therein. (Rule provided such amount would not be excessive (Sy
114, sec. 17). Guan vs. Amparo, 79 Phil. 670).
Section 21. Forfeiture of bond. — When the

Section 18. Notice of application to prosecutor. presence of the accused is required by the court
— In the application for bail under section 8 of this or these Rules, his bondsmen shall be notified to
Rule, the court must give reasonable notice of the produce him before the court on a given date and
hearing to the prosecutor or require him to submit time. If the accused fails to appear in person as
his recommendation. (18a) required, his bail shall be declared forfeited and
the bondsmen given thirty (30) days within which
NOTE: Such notice is necessary because the to produce their principal and to show cause why
burden of proving that the evidence of guilt is no judgment should be rendered against them for
strong is on the prosecution and that the the amount of their bail. Within the said period, the
discretion of the court in admitting the accused bondsmen must:
to bail can only be exercised after the fiscal has
been heard regarding the nature of the evidence (a) produce the body of their principal or
in is possession (P. vs. Raba, 130 Phil. 384). give the reason for his non-production;
and
Section 19. Release on bail. — The accused
must be discharged upon approval of the bail by (b) explain why the accused did not
the judge with whom it was filed in accordance appear before the court when first
with section 17 of this Rule. required to do so.
Whenever bail is filed with a court other than Failing in these two requisites, a judgment shall be
where the case is pending, the judge who rendered against the bondsmen, jointly and
accepted the bail shall forward it, together with the severally, for the amount of the bail. The court
order of release and other supporting papers, to shall not reduce or otherwise mitigate the liability
the court where the case is pending, which may, of the bondsmen, unless the accused has been
for good reason, require a different one to be filed. surrendered or is acquitted. (21a)
(19a)
NOTE: The 30-day period granted to the
NOTE: Once the accused has been admitted to bondsmen to comply with the 2 requisites for the
bail, he is entitled to immediate release from lifting of the order of forfeiture cannot be
custody. An officer who fails or refuses to shortened by the court but may be extended for
release him from detention notwithstanding the good cause shown.
approval by the proper court of his bail bond
may be held liable under art. 126, RPC for
ORDER OF ORDER OF
“delaying release”.
FORFEITURE CONFISCATION
Is conditional and Is not independent of
Section 20. Increase or reduction of bail. — interlocutory, there the order of forfeiture. It
After the accused is admitted to bail, the court being something more is a judgment
may, upon good cause, either increase or reduce to be done, such as the ultimately determining
its amount. When increased, the accused may be production of the the liability of the
committed to custody if he does not give bail in the accused within 30-days surety. Therefore final
increased amount within a reasonable period. An as provided by the and executory at once
accused held to answer a criminal charge, who is rules. Not appealable
released without bail upon filing of the complaint
or information, may, at any subsequent stage of
the proceedings and whenever a strong showing

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Section 22. Cancellation of bail. — Upon WITHDRAWAL OR APPLICATION FOR

application of the bondsmen, with due notice to PROBATION
the prosecutor, the bail may be cancelled upon A. Allowed—if the application for probation is
surrender of the accused or proof of his death. unintelligently (not voluntary) made.
Application was filed only by a counsel de
The bail shall be deemed automatically cancelled oficio.
upon acquittal of the accused, dismissal of the B. Not Allowed—application was done
case, or execution of the judgment of conviction. intelligently (voluntary).
Application filed by the counsel de parte.
In all instances, the cancellation shall be without
The withdrawal must, however be within the 15
prejudice to any liability on the bond. (22a)
day period of filing the appeal(Ucat).
NOTE: Judicial Order is necessary in order to
Section 25. Court supervision of detainees. —
relieve the bondsmen from the obligation
The court shall exercise supervision over all
contracted by them by virtue of their bond.
persons in custody for the purpose of eliminating
unnecessary detention. The executive judges of
Section 23. Arrest of accused out on bail. — For the Regional Trial Courts shall conduct monthly
the purpose of surrendering the accused, the personal inspections of provincial, city, and
bondsmen may arrest him or, upon written municipal jails and their prisoners within their
authority endorsed on a certified copy of the respective jurisdictions. They shall ascertain the
undertaking, cause him to be arrested by a police number of detainees, inquire on their proper
officer or any other person of suitable age and accommodation and health and examine the
discretion. condition of the jail facilities. They shall order the
segregation of sexes and of minors from adults,
An accused released on bail may be re-arrested ensure the observance of the right of detainees to
without the necessity of a warrant if he attempts to confer privately with counsel, and strive to
depart from the Philippines without permission of eliminate conditions inimical to the detainees.
the court where the case is pending. (23a)
In cities and municipalities to be specified by the
NOTE: The proper court may issue a hold- Supreme Court, the municipal trial judges or
departure order or direct the Department of municipal circuit trial judges shall conduct monthly
Foreign Affairs to cancel the passport of the personal inspections of the municipal jails in their
accused. This is a case of valid restriction of the respective municipalities and submit a report to
person’s right to travel so that he may be dealt the executive judge of the Regional Trial Court
with in accordance with the law (Silverio vs. CA, having jurisdiction therein.
195 SCRA 760).
A monthly report of such visitation shall be
Section 24. No bail after final judgment; submitted by the executive judges to the Court
exception. — No bail shall be allowed after the Administrator which shall state the total number of
judgment of conviction has become final. If before detainees, the names of those held for more than
such finality, the accused has applies for thirty (30) days, the duration of detention, the
probation, he may be allowed temporary liberty crime charged, the status of the case, the cause
under his bail. When no bail was filed or the for detention, and other pertinent information.
accused is incapable of filing one, the court may (25a)
allow his release on recognizance to the custody
of a responsible member of the community. In no The employment of physical,
case shall bail be allowed after the accused has psychological, or degrading punishment
commenced to serve sentence. (24a) against any prisoner or detainee or the
use of substandard or inadequate penal
NOTE: The application for probation must be filed facilities under sub-human conditions shall
within the period of perfecting an appeal, such be dealt with by law (art. III, sec. 19, par.2,
filing operates as a waiver of the right to appeal 1987 Constitution).
(sec. 4 PD 968 as amended). See also the Anti-Torture Act.
BONUS NOTES: Section 26. Bail not a bar to objections on

illegal arrest, lack of or irregular preliminary
investigation. — An application for or admission

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to bail shall not bar the accused from challenging (a) To be presumed innocent until the
the validity of his arrest or the legality of the contrary is proved beyond reasonable
warrant issued therefor, or from assailing the doubt.
regularity or questioning the absence of a
preliminary investigation of the charge against (b) To be informed of the nature and
him, provided that he raises them before entering cause of the accusation against him.
his plea.
(c) To be present and defend in person
The court shall resolve the matter as early as and by counsel at every stage of the
practicable but not later than the start of the trial of proceedings, from arraignment to
the case. (n) promulgation of the judgment. The
accused may, however, waive his
presence at the trial pursuant to the
stipulations set forth in his bail, unless his
RULE 115 presence is specifically ordered by the
court for purposes of identification. The
Rights of Accused absence of the accused without justifiable
cause at the trial of which he had notice
shall be considered a waiver of his right to
NOTE: This Rule enumerates the rights of a be present thereat. When an accused
person accused of an offense, which are both under custody escapes, he shall be
constitutional as well as statutory, save the right to deemed to have waived his right to be
appeal which is purely statutory in character. present on all subsequent trial dates until
custody over him is regained. Upon
These rights are heavily and thoroughly motion, the accused may be allowed to
discussed in the CONSTITUTIONAL LAW defend himself in person when it
subject. sufficiently appears to the court that he
can properly protect his right without the
Section 14, Art. III, 1987 Constitution. assistance of counsel.
1. No person shall be held to answer for a (d) To testify as a witness in his own
criminal offense without due process of behalf but subject to cross-examination on
law. matters covered by direct examination.
His silence shall not in any manner
2. In all criminal prosecutions, the accused
prejudice him.
shall be presumed innocent until the
contrary is proved, and shall enjoy the (e) To be exempt from being compelled to
right to be heard by himself and counsel, be a witness against himself.
to be informed of the nature and cause of
the accusation against him, to have a (f) To confront and cross-examine the
speedy, impartial, and public trial, to witnesses against him at the trial. Either
meet the witnesses face to face, and to party may utilize as part of its evidence
have compulsory process to secure the the testimony of a witness who is
deceased, out of or can not with due
attendance of witnesses and the diligence be found in the Philippines,
production of evidence in his behalf. unavailable or otherwise unable to testify,
However, after arraignment, trial may given in another case or proceeding,
proceed notwithstanding the absence of judicial or administrative, involving the
the accused: Provided, that he has been same parties and subject matter, the
duly notified and his failure to appear is adverse party having the opportunity to
cross-examine him.
unjustifiable.
(g) To have compulsory process issued to
Section 1. Rights of accused at the trial. — In all secure the attendance of witnesses and
criminal prosecutions, the accused shall be production of other evidence in his behalf.
entitled to the following rights:

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(h) To have speedy, impartial and public information. To convict him of an offense other
trial. than that charged in the complaint or information
would be a violation of this constitutional right (P
(i) To appeal in all cases allowed and in vs. Ortega, 276 SCRA 166).
the manner prescribed by law. (1a)
When a person is charged in a complaint with a
RIGHTS OF THE ACCUSED AT THE TRIAL: crime and the evidence does not show that he is
guilty thereof, but does show that he is guilty of
some other crime or lesser offense, the court may
A. TO BE PRESUMED INNOCENT
sentence him for such lesser offense, PROVIDED
the lesser offense is a cognate offense and is
In all criminal prosecution, the accused shall be
included or in the complaint with the court.
presumed innocent until the contrary is proved
beyond reasonable doubt.
The qualifying or aggravating (ordinary or special)
must be ALLEGED and PROVED in order to be
REASONABLE DOUBT
considered by the court.
It is that doubt engendered by an investigation of
the whole proof and an ability, after such
C. TO BE PRESENT AND DEFEND IN PERSON
investigation, to let the mind rest easy upon
AND BY COUNSEL AT EVERY STAGE OF THE
certainty of guilt.
PROCEEDING
NOTE: Absolute certainty of guilt is not demanded
Presence of the accused is required only:
by law to convict of any criminal charge but moral
1. During arraignment (sec. 1b, Rule 116);
certainty is required, and this certainty is required
2. Promulgation of sentence, except when
as to every proposition of proof requisite to
the conviction is for a light offense, in
constitute the offense.
which case, it may be pronounced in the
presence of his counsel or representative;
REASON: The slightest possibility of an innocent
3. When ordered by the court for purposes of
man being convicted for an offense he has not
identification.
committed would be far dreadful than letting a
guilty person go unpunished for a crime he may
Not applicable in the SC and CA—The law
have perpetrated (P. vs. Lagmay, 306 SCRA 157).
securing to an accused the right to be present at
every stage of the proceedings has no application
EQUIPOISE RULE
to the proceedings before the CA and the SC nor
Where the evidence of the parties in a criminal
to the entry and promulgation of their judgments.
case are evenly balanced, the constitutional
The defendant need not be present in the court
presumption of innocence should tilt in favor of the
during the hearing of the appeal (sec. 9,Rule 124).
accused who must be acquitted.
Accused may waived his right to be present during
The Legislature may enact that when certain facts
the trial. However, his presence may be compelled
have been proven they shall be prima facie
when he is to be identified (Aquino, Jr. vs. Military
evidence of the existence of the guilt of the
Commission, 63 SCRA 546).
accused and shift the burden of proof provided
that there is a rational connection between the
He may be ordered arrested by the court for non-
facts proved and the ultimate fact presumed so
appearance upon summons.
that an inference of the one from proof of the other
is not unreasonable and arbitrary experience (P.
However, when he admits in open court that he is
vs. Mingoa, 92 Phil. 856).
the person named defendant during the
arraignment, his presence for purposes of
B. TO BE INFORMED OF THE NATURE AND
identification may not be necessary. Besides,
CAUSE OF ACCUSATIONS AGAINST HIM
when he is on bail, pictures submitted with the bail
application may be used for purposes of
This right requires that the information should
identification (Ucat).
state the facts and the circumstances constituting
the crime charged in such a way that a person of
EFFECTS OF WAIVER OF THE RIGHT TO
common understanding may easily comprehend
APPEAR BY THE ACCUSED:
and be informed of what it is all about.
1. Waiver of the right to present evidence;
2. Prosecution can present evidence if
An accused cannot be convicted of an offense
accused fails to appear;
unless it is clearly charged in the complaint or
________________________________________________________________________________________________
3. The court can decide even without the Court (as of 2004 the Court of Appeals has the jurisdiction to
accused’s evidence. such review) to review the decision of conviction
sentencing the accused to death, because he is entitled
TRIAL IN ABSENTIA to an automatic review of the death sentence. (Sees.
It is important to state that the provision of the 3[e] and 10, Rule 122, Rules of Criminal Procedure; People
Constitution authorizing trial in absentia of the vs. Espargas, 260 SCRA 539.)
accused in case of his non-appearance AFTER
ARRAIGNMENT despite due notice simply means
that he waives his right to meet the witnesses face An escapee who has been duly tried in absentia
to face among others. waives his right to present evidence on his own
behalf and to confront and cross-examine
Such waiver of the accused does not mean a witnesses who testified against him (Gimenez vs.
release of the accused from his obligation under Nazareno, 160 SCRA 1).
the bond to appear in court whenever so required.
The accused may waive his right but not his duty One who escapes from prison or confinement:
or obligation to the court. 1. Losses standing in court;
2. Deemed to have waived any right to seek
REQUISITES FOR TRIAL IN ABSENTIA relief from the court, unless he surrenders
1. The accused has been arraigned; or submits to the jurisdiction of the court;
2. He has been duly notified of the trial; 3. Beyond the pale and protection of the law.
3. His failure to appear is unjustified.
D. RIGHT TO COUNSEL
Trial; Trial in Absentia (2010) No. XIX. (1) Even the most educated or intelligent man may
Enumerate the requisites of a "trial in not have skill in the science of the law, particularly
absentia " (2%) and a "promulgation of in the rules of procedure Without the aid of
judgment in absentia" (2%). SUGGESTED counsel, a person may be convicted not because
ANSWER: The requisites of a valid trial in he is guilty but because he does not know how to
absentia are: (1) accused‟s arraignment; establish his innocence. (P. vs. Holgado, 86
(2) his due notification of the trial; (3) his Phil.752).
unjustifiable failure to appear during trial
(Bernardo vs. People, G.R. No. 166980, PURPOSE: To balance the discrepancy between
April 4, 2007). The requisites for a valid our adversarial system wherein the accused is
promulgation of judgment are: (a) A valid faced with the awesome prosecution machinery of
notice of promulgation of judgment; (b) the state.
Said notice was duly furnished to the
accused personally or thru counsel; (c) The right covers the period beginning from
Accused failed to appear on the scheduled custodial investigation, well into the rendition of
judgment and even appeal (P. vs. Serzo, 274
date of promulgation of judgment despite
SCRA 553).
due notice; (d) Such judgment be recorded
in the criminal docket; (e) Copy of said
judgment had been duly served upon the
CUSTODIAL INVESTIGATION
accused or his counsel.
It is the questioning by law enforcement officers of
a suspect taken into custody or otherwise
Trial; Trial in Absentia; Automatic Review of Conviction
deprived of is freedom of action in a significant
(1998)
way. It includes the practice of issuing an
1. What are the requisites of a trial in absentia? [2%]
“invitation” to a person who is investigated in
2. If an accused who was sentenced to death escapes, connection with an offense he is suspected to
is there still a legal necessity for the Supreme Court to have committed (RA 7438).
review the decision of SUGGcoEnSvTiEcDti oAnN?S
[W3%ER] :
1. The requisites of trial in absentia are: (a) the accused Right to counsel means reasonably effective
has already been arraigned; (b) he has been duly counsel
notified of the trial; and (c) his failure to appear is If during the investigation the assisting lawyer left,
unjustifiable. (Sec. 14 [2], Article III. Constitution; Parada or come and goes, the statement signed by the
vs. Veneracion, 269 SCRA 371 [1997].) accused is still inadmissible because the lawyer
2. Yes, there is still a legal necessity for the Supreme should assist his client from the time the
confessant answers the first question asked by the

________________________________________________________________________________________________
investigating officer until the signing of the extra- A denial of the defendant’s right to testify in his
judicial confession (P. vs. Morial363 SCRA 96). own behalf would constitute an unjustifiable
violation of his constitutional right (P. vs. Santiago,
NOTE: The right to counsel and the right to 46 Phil. 734).
remain silent do not cease even after the criminal
complaint/information has already been filed in Note: If the accused testifies, he may be cross-
court AS LONG AS he is still in custody. examined but only on matters covered by his
Basis: these are oftentimes the critical stages of direct examination, unlike an ordinary witness who
the pre-trial proceedings. can be cross-examined as to any matter stated in
the direct examination or connected therewith
IMPORTANT: The duty of the court to appoint a (sec. 6, Rule 132). His failure to testify is not taken
counsel de oficio when the accused has no legal against him but failure to produce evidence in his
counsel of choice and desires to employ the behalf is considered against him (US vs. Bay, 97
services of one is MANDATORY only at the time Phil. 495).
of the arraignment (sec. 6, Rule116).
An accused cannot be compelled to take the
Right to counsel may be invoked on witness stand unlike an ordinary witness for the
appeal; reason than the sole purpose of putting him on the
Violation of right to counsel is a ground for stand is precisely to incriminate him.
New Trial;
When the accused was assisted by a fake lawyer, GR: Silence of the accused shall not be taken
he is entitled to a new trial. against him.
Exception: When the prosecution has already
An order dismissing an appeal was set aside established a prima facie case against the
when the late filing is due to the fact that the accused.
lawyer is fake.
F. RIGHT AGAINST SELF-INCRIMINATION
Note: however, in the case of P. vs. Elesterio,
although the accused was defended by a fake AVAILABILITY
lawyer, it is observed that he has chosen the It is available not only in criminal prosecution but
lawyer and that his representation does not also to other government proceedings including
change the fact that he was carrying an civil action, and administrative or legislative
unlicensed firearm. investigations.
RIGHT TO COUNSEL DE PARTE IS NOT The accused is protected under this rule from
ABSOLUTE questions which tend to incriminate him that is,
It cannot be used to delay the speedy which may subject him to a penal liability.
administration of justice. Hence, he cannot
successfully ask the service of a lawyer who he Note: The right may be waived by failure to invoke
cannot afford or is under conflict of interest. the privilege at the proper time, that is, AFTER the
incriminating question is asked and BEFORE his
Admissibility; Admission of Guilt; Requirements (2006) answer. The lawyer must be very vigilant under
What are the requirements in order that an admission this situation. The client presumably does not
of guilt of an accused during a custodial investigation know that an incriminating question is shot at him.
be admitted in evidence? (2.5%) The lawyer must manifest to the court his intention
SUGGESTED ANSWER: to explain to the client that the question might
1 The admission must be voluntary. incriminate him (Ucat).
2 The admission must be in writing.
3 The admission must be made with the assistance of SCOPE
competent, independent counsel. GR: The privilege of the accused to be exempt
4. The admission must be express (People v. Prinsipe, from testifying as a witness involves a prohibition
G.R. No. 135862, May 2, 2002). against testimonial compulsion only and the
5. In case the accused waives his rights to silence and production of the accused of incriminating
to counsel, such waiver must be in writing, executed documents and articles demanded from him (US
with the assistance of competent, independent counsel. vs. Tan Teng, 23 Phil. 145).
Exceptions: Immunity statutes such as:

E. TESTIFY AS WITNESS IN HIS OWN BEHALF a) RA 1379—Forfeiture of illegally obtained
wealth;

________________________________________________________________________________________________
b) RA 749—Bribery and Graft cases. himself to a blood test to determine whether he has
HIV under Sec. 17(a) of R.A. No, 8054. His rights to
RIGHT OF THE ACCUSED VS. RIGHT OF AN be presumed innocent of the crime charged, to privacy
ORDINARY WITNESS and against self-incrimination are not violated by such
The ordinary witness may be compelled to take compulsory testing. In an action in which the physical
the witness stand and claim the privilege as each condition of a party is in controversy, the court may
question requiring an incriminating answer is shot order the accused to submit to a physical examination.
at him, while an accused may altogether refuse to (Sec. 1, Rule 28, 1997 Rules of Civil Procedure)(Look for citation of
take the witness stand and refuse to answer any latest case, in 2004)
and all questions. b) If the result of such test shows that he is HIV
positive, and the prosecution offers such result in
NOTE; However, if the accused testifies in his evidence to prove the qualifying circumstance under
own behalf, he may be cross-examined as any the Information for qualified rape, should the court
reject such result on the ground that it is the fruit of a
other witness. He may not on cross-examination
poisonous tree? Explain.
refuse to answer any question on the ground that SUGGESTED ANSWER:
the answer might incriminate him for the crime Since the rights of the accused are not violated because
which he is charged, but he may refuse to answer the compulsory testing is authorized by the
any question incriminating him for an offense law, the result of the testing cannot be considered to be the
distinct that for which he is charged. fruit of a poisonous tree and can be offered in evidence to
prove the qualifying circumstance under the information for
BODY CAN BE SUBMITTED TO EXAMINATION qualified rape under R.A. No. 8353. The fruit, of the
(NO VIOLATION AGAINST SELF poisonous tree doctrine refers to that rule of evidence that
INCRIMINATION): excludes any evidence which may have been derived or
1. Fingerprint; acquired from a tainted or polluted source. Such evidence is
2. Photograph; inadmissible for having emanated from spurious origins. The
3. Measurement; doctrine, however, does not apply to the results obtained
4. Stand; pursuant to Sec. 1, Rule 28, 1997 Rules of Civil Procedure,
as
5. Assume position;
it does not contemplate a search within the moaning of the
6. Blood examination; law. (People v. Montilla, G.R. No. 123872, January 30,1998)
7. Pregnancy test;
8. Wear particular dress;
Note: To impose mandatory drug testing on the
9. Drug test (sec. 36, RA 9165); (Already
accused is a blatant attempt to harness a medical
removed under new law and
test as a tool for criminal prosecution, contrary to
jurisprudence)
the stated objectives of RA 9165. Drug testing in
10. Alcoholic breath;
this case would violate a persons' right to privacy
11. DNA;
guaranteed under Sec. 2, Art. III of the
12. Hair samples;
Constitution. Worse still, the accused persons are
13. Paraffin test;
veritably forced to incriminate themselves.
14. Ultra-violet examination;
Declared Unconstitutional. (ATTY.MANUEL J.
15. Medical examination.
LASERNA, JR., vs.
DANGEROUS DRUGS BOARD and PHILIPPINE
Rights of the Accused; Validity; HIV Test (2005)
DRUG ENFORCEMENT AGENCY, G.R. No.
Under Republic Act No. 8353, one may be charged with
andfound guilty of qualified rape if he knew on or before 158633,November 3, 2008)
thecommission of the crime that he is afflicted with Human
Immuno-Deficiency Virus (HIV)/Acquired Admissibility; Evidence from Invasive and
ImmuneDeficiency Syndrome (AIDS) or any other Involuntary Procedures (2010) No. XIII.
sexuallytransmissible disease and the virus or disease is Policemen brought Lorenzo to the Philippine
transmitted tothe victim. Under Section 17(a) of Republic General Hospital (PGH) and requested one of
Act No. 8504 the court may compel the accused to submit its surgeons to immediately perform surgery
himself to a blood test where blood samples would be on him to retrieve a packet of 10 grams of
extracted from his veins todetermine whether he has HIV. shabu which they alleged to have swallowed
(8%)
Lorenzo. Suppose the PGH agreed to, and did
a) Are the rights of the accused to be presumed
perform the surgery is the package of shabu
innocent of the crime charged, to privacy, and
admissible in evidence? Explain. (3%)
against self-incrimination violated by such
compulsory testing? SUGGESTED ANSWER: No, the package of
Explain. shabu extracted from the body of Lorenzo
SUGGESTED ANSWER: is not admissible in evidence because it
No. The court may compel the accused to submit was obtained through surgery which

________________________________________________________________________________________________
connotes forcible invasion into the body because the accused is on the witness
of Lorenzo without his consent and absent stand.
due process. The act of the policemen and SUGGESTED ANSWER: (E), Section 17,
the PGH surgeon involved, violate the Article III of the 1987 Constitution
fundamental rights of Lorenzo, the provides that no person shall be compelled
suspect. ALTERNATIVE ANSWER: because to be a witness against himself. The
the constitutional right against self- essence of the right against self-
incriminating evidence exists. In the past, incrimination is testimonial compulsion,
Supreme Court has already declared many that is, the giving of evidence against
invasive and involuntary procedures (i.e himself through a testimonial act (People
examination of women‟s genitalia, vs. Casinillo, 213 SCRA 777 [1992]).
expulsion of morphine from one‟s mouth,
DNA testing) as constitutionally sound. In Beltran vs. Samson, G.R. No. 32025,
September 23, 1929, the Supreme Court
held that for the purposes of the
constitutional privilege there similarity
GR: Accused cannot be required to produce between on who is compelled to produce a
documents that may incriminate him. document and one who is compelled to
Exception: When there is a specific provision of furnish a specimen of his handwriting, for
law directing a person to produce such document in both cases, the witness is required to
even if it may incriminate him. furnish evidence against himself. In this
Example: case, the purpose of the fiscal, who
1. the Statement of Assets and Liabilities of requested the handwriting of the witness,
Public officers; was to compare and determine whether
2. books of accounts of corporations under the accused wrote the documents believed
police and taxing powers of the state. to be falsified. Thus, the right against self-
incrimination may be invoked by a
Some examples of incriminating compulsions: witness who was compelled to furnish his
1. production of handwriting specimen handwriting for comparison.
2. Forced re-enactment (P. vs. Olvis);
3. Signing a receipt of the seized articles. In Gonzales vs. Secretary of Labor, the
Supreme Court held that the privilege
against self-incrimination must be
invoked at the proper time, and the
Bar Exam Question 2013 proper time to invoke it is when a
XVIII. Maria was accused of libel. While
question calling for an incriminating
Maria was on the witness stand, the
answer is propounded. This has to be so,
prosecution asked her to write her name and because before a question is asked there
to sign on a piece of paper, apparently to
would be no way of telling whether the
prove that she authored the libelous information to be elicited from the
material. Maria objected as writing and witness is self-incriminating or not. As
signing her name would violate her right
stated in Jones on Evidence (Vol. 6, pp.
against self-incrimination. Was Maria’s 4926-4927), a person who has been
objection proper? (1%) (A) No, she can be summoned to testify “cannot decline to
cross examined just like any other witness
appear, nor can he decline to be sworn as
and her sample signature may be taken to a witness” and “no claim of privilege can
verify her alleged authorship of the libelous be made until a question calling for a
statements. (B) No, her right against self- criminating answer is asked; at that time,
incrimination is waived as soon as she and generally speaking, at that time only,
became a witness. (C) No, this privilege may the claim of privilege may properly be
be invoked only by an ordinary witness and imposed‟ (Bagadiong vs. Gonzales, G.R.
not by the accused when she opts to take the
No. L-25966, December 28, 1979, De
witness stand. (D) The objection was Castro, J.).
improper under all of A, B, and C. (E) The
objection was proper as the right to self-
ALTERNATIVE ANSWER: (B), The right
incrimination is a fundamental right that against self-incrimination may be waived
affects liberty and is not waived simply expressly or impliedly. Thus, when Maria
took the witness stand, she is deemed to

________________________________________________________________________________________________
have waived her right against self-

incrimination. H. RIGHT TO COMPULSORY PROCESS TO
SECURE ATTENDANCE OF WITNESSES.
G. RIGHT TO CONFRONT AND CROSS- Section 14, Rule 119. Bail to secure appearance of
EXAMINE THE WITNESS AGAINST HIM AT material witness. — When the court is satisfied,
TRIAL upon proof or oath, that a material witness will
not testify when required, it may, upon motion of
CONFRONTATION either party, order the witness to post bail in such
It is the fact of setting a witness face to face with sum as may be deemed proper. Upon refusal to
the accused so that the latter may make any post bail, the court shall commit him to prison
objection he has to the witness, and the witness until he complies or is legally discharged after his
may indentify the accused, and this must take testimony has been taken.
place in the presence of the court having
jurisdiction to permit the privilege of cross-
examination. Bail; Witness Posting Bail (1999)
May the Court require a witness to post bail? Explain
PURPOSE: The primary purpose is to secure the your answer. (2%)
SUGGESTED ANSWER:
opportunity of cross-examination and the
Yes. The court may require a witness to post bail if he
secondary purpose is to enable the judge to
is a material witness and bail is needed to secure his
observe the demeanor of witnesses.
appearance. The rules provide that when the court is
Notes: Testimony of a witness who is not satisfied, upon proof or oath, that a material witness
submitted for cross-examination is not admissible will not testify when required, it may, upon motion of
in evidence. The affidavits of witnesses who are either party, order the witness to post bail in such sum
not presented during the trial—thus, are not as may be deemed proper. Upon refusal to post bail,
subjected to cross-examination—are inadmissible the court shall commit him to prison until he complies
because they are hearsay (P. vs. Quidato, GR or is legally discharged after his testimony is taken. (Sec.
6, Rule 119)
NO. 117401, Oct. 1, 1998).
Exception to the right of confrontation: REQUISITES FOR COMPELLING THE

ATTENDANCE OF WITNESSES AND THE
PRODUCTION OF EVIDENCE:
Section 47, Rule 130. Testimony or
1. The evidence is really material;
deposition at a former proceeding. — The 2. The accused (party) is not guilty of neglect
testimony or deposition of a witness in previously obtaining the production of
deceased or unable to testify, given in a such evidence;
former case or proceeding, judicial or 3. The evidence will be available at the time
administrative, involving the same parties desired;
4. No similar evidence can be obtained. (P.
and subject matter, may be given in
vs. Chua, GR NO. 128280, April 4, 2001).
evidence against the adverse party who
had the opportunity to cross-examine See also the topic on Subpoenas.
him.
I. RIGHT TO SPEEDY, IMPARTIAL AND PUBLIC
Note: Identification was annulled in a case where TRIAL
there was lack of confrontation.
The right of confrontation may be waived SPEEDY TRIAL means a trial free from vexatious
capricious and oppressive delays.
Testimony of a witness who later on died
is admissible if the adverse party was The right to a speedy trial is intended to avoid
given the opportunity to cross-examine oppression and to prevent delay by imposing on
but failed to do so due to his own fault. the courts and on the prosecution an obligation to
proceed with reasonable dispatch.
Party must seasonably invoke the right to cross-
examination. Silence or failure to assert it is The courts, in determining whether the right of the
tantamount to renunciation. Counsel must move accused to a speedy trial has been denied should
for the cross-examination of the adverse party. consider such facts as:

________________________________________________________________________________________________
1. The length of time of delay; two (2) years. The numerous, unreasonable
2. The accused’s assertion or non-assertion postponements of the arraignment
of his right; demonstrate an abusive exercise of
3. Prejudice to the accused resulting from discretion (Lumanlaw v. Peralta, 482 SCRA
the delay. 396 [2006]). Arraignment of an accused
would not take thirty minutes of the
NOTE: There is NO violation of the right where the precious time of the court, as against the
delay is imputable to the accused (Solis vs. preventive imprisonment and deprivation
Agloro, 64 SCRA 370). of liberty of the accused just because he
FAILURE TO ASSERT MAY AMOUNT TO does not have the means to post bail
WAIVER OR ABANDONMENT OF THE RIGHT. although the crime charged is bailable.
Presumed waive if the repeated postponement is The right to a speedy trial is guaranteed
procured by the accused or his counsel. by the Constitution to every citizen
accused of a crime, more so when is under
REMEDIES OF THE ACCUSED WHEN HIS preventive imprisonment. L, in the given
RIGHT TO A SPEEDY TRIAL IS VIOLATED: case, was merely invoking his
1. He should ask for the trial of the case; constitutional right when a motion to
2. Motion to dismiss based on sec.14 of the dismiss the case was twice filed by his
Speedy Trial Act of 1998; counsel. The RTC is virtually enjoined by
3. Mandamus to compel the dismissal in the fundamental law to respect such right;
case the motion is denied; hence a duty. Having refused or neglected
4. Plus Habeas Corpus to obtain immediate to discharge the duty enjoined by law
freedom.
whereas there is no appeal nor any plain,
speedy, and adequate remedy in the
ordinary course of law, the remedy of
mandamus may be availed of.
RA 8493 SPEEDY TRIAL ACT OF 1998
PERIOD FOR THE ARRAIGNMENT OF THE

DUTY OF THE COURT AFTER ARRAIGNMENT
ACCUSED
OF THE ACCUSED
Within 30 days from the filing of the
information or from the date the accused
The court shall order a pre-trial conference to
appeared before the justice/judge/court in
consider the following:
which the charge is pending, whichever
1. Plea bargaining;
date last occurs.
2. Stipulation of facts;
3. Marking for identification of evidence of
Trial; Speedy Trial (2007) No.IX. L was
parties;
charged with illegal possession of shabu
4. Waiver of objections to the admissibility of
before the RTC. Although bail was allowable
evidence;
under his indictment, he could not afford to
5. Such other matter as will promote a fair
post bail, and so he remained in detention at
and expeditious trial.
the City Jail. For various reasons ranging
from the promotion of the Presiding Judge, to WHEN SHALL TRIAL COMMENCED AFTER
the absence of the trial prosecutor, and to the ARRAIGNMENT
lack of notice to the City Jail Warden, the Within 30 days from arraignment.
arraignment of L was postponed nineteen However, it may be extended but only:
times over a period of two years. Twice during 1. For 180 days for the first 12
that period, L’s counsel filed motions to calendar month period from
dismiss, invoking the right of the accused to effectivity of the law;
speedy trial. Both motions were denied by the 2. 120 days for the second 12 month
RTC. Can L file a petition for mandamus. period;
Reason briefly. SUGGESTED ANSWER: Yes, 3. 80 days for the 3rd 12 month
L can file a petition for mandamus to period.
enforce his constitutional right to a
speedy trial which was capriciously denied TIME LIMIT FOR TRIAL OF CRIMINAL CASES
to him. It shall not exceed 180 days from the first
There is absolutely no justification for day of trial.
postponing an arraignment of the accused However, this rule is not absolute.
nineteen (19) times and over a period of
________________________________________________________________________________________________
Exceptions: Note: But the judge can ask clarificatory

1. Those governed by the Rule on Summary questions to the accused. This is not only
Procedure; a right but duty of the judge who feels the
2. Where the penalty prescribed by law does need to elicit information to the end that
not exceed 6 months imprisonment or a justice will be served (P. vs. Vaynaco, GR
fine of 1,000 or both; NO. 126286, March 22, 1999).
3. Those authorized by the Chief Justice of Where the judge where the case is
the SC. pending is previously the one who
prosecutes the case;
IMPARTIAL TRIAL The judge of the case on appeal is the
Due process of law requires hearing before an judge (Promoted to higher court) who
impartial and disinterested tribunal, and that every rendered the judgment appealed from.
litigant is entitled to nothing less than the cold
neutrality of an impartial judge (Mateo, Jr. vs. PUBLIC TRIAL
Villaluz, 50 SCRA 180). It means one held openly or publicly. It is sufficient
that the relatives and friends who want to see the
Judicial Autonomy & Impartiality (2003) proceedings are given the opportunity to witness
In rendering a decision, should a court take into the proceedings.
consideration the possible effect of its verdict upon
the PURPOSE: So that the public will know that the
political stability and economic welfare of the nation? accused is fairly dealt with and not unjustly
4% condemned. This is intended to prevent possible
SUGGESTED ANSWER: abuses that may be committed against the
No, because a court is required to take into accused (Garcia vs. Domingo, 52 SCRA 143).
consideration only the legal issues and the evidence
admitted in the case. The political stability and EXCLUSION OF THE PUBLIC IS VALID WHEN:
economic welfare of the nation are extraneous to the 1. Evidence to be produced is offensive to
case. They can have persuasive influence but they are decency or public morals;
not the main factors that should be considered in 2. Upon motion of the accused (sec. 21,
deciding a case. A decision should be based on the law, Rule 119).
rules of procedure, justice and equity. However, in
exceptional cases the court may consider the political RULE ON TRIAL BY PUBLICITY
stability and economic welfare of the nation when The right of the accused to a fair trial is not
these incompatible to a free press. Pervasive publicity is
are capable of being taken into judicial notice of and not per se prejudicial to the right of the accused to
are a fair trial.
relevant to the case.
To warrant a finding of prejudicial publicity, there
Note: “Like Caesar’s wife, a judge must not only must be allegations and proof that the judges have
be pure BUT beyond suspicion” (Palang vs. Zosa, been unduly influenced, not simply that they might
58 SCRA 776). be by the barrage of publicity (P. vs. Teehankee,
NOTE: If the judge is partial or is suffering from 249 SCRA 54).
valid grounds for his inhibition, a motion for
inhibition must be made before the trial judge has An accused has a right to a public trial, but it is a
already made some pronouncement (judgment) right that belongs to him more than anyone else,
on the merits of the case. Hence a motion for where his life or liberty can be held critically in
inhibition after the judgment and denial of motion balance. A public trial is not synonymous with a
for reconsideration is untenable (P. vs. Lacson, L- PUBLICIZED TRIAL; it only implies that the court
149453, Oct. 7, 2003).(Ucat). doors must be open to those who wish to come,
sit in the available seats, conduct themselves with
REASON: A party may not be allowed to decorum, and observe trial process(RE: Request
speculate upon the action of the court. for the Live TV Coverage of the Trial of Former
President Joseph Estrada, AM NO. 01-4-03-SC,
SOME CASES SHOWING PARTIALITY OF THE June 29, 2001).
JUDGE:
When the trial judge personally conducted J. RIGHT TO APPEAL ON ALL CASES
the cross-examination of the accused ALLOWED BY LAW AND IN THE MANNER
(Imelda Marcos vs. Sandiganbayan). PRESCRIBED BY LAW

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(b) The accused must be present at the

The right to appeal is purely of statutory origin. It is arraignment and must personally enter his plea.
not a matter of absolute right, independently of Both arraignment and plea shall be made of
constitutional or statutory provisions allowing such record, but failure to do so shall not affect the
appeal. validity of the proceedings.
WAIVER OF THE RIGHT TO APPEAL (c) When the accused refuses to plead or makes a
The right to appeal is a personal right of the conditional plea, a plea of not guilty shall be
accused and similarly to other rights of kindred entered for him. (1a)
nature, it may be waived expressly or by
implication. (d) When the accused pleads guilty but presents
exculpatory evidence, his plea shall be deemed
The waiver, however, must be intelligently made, withdrawn and a plea of not guilty shall be entered
with full knowledge of its consequences. Hence, a for him. (n)
waiver of a grossly ignorant accused was set
aside. He was allowed to appeal despite the lapse
of the period to file an appeal. (e) When the accused is under preventive
detention, his case shall be raffled and its records
Flight of the accused is a waiver of his right to transmitted to the judge to whom the case was
appeal. raffled within three (3) days from the filing of the
information or complaint. The accused shall be
Note: However, before the abolition of the death arraigned within ten (10) days from the date of the
penalty, when imposed, the right to appeal is not raffle. The pre-trial conference of his case shall be
waivable for the law provides for the automatic held within ten (10) days after arraignment. (n)
review to the SC which was subsequently
transferred to the CA. (f) The private offended party shall be required to
appear at the arraignment for purposes of plea
bargaining, determination of civil liability, and other
RULE 116 matters requiring his presence. In case of failure
of the offended party to appear despite due notice,
the court may allow the accused to enter a plea of
Arraignment and Plea
guilty to a lesser offense which is necessarily
included in the offense charged with the
ARRAIGNMENT conformity of the trial prosecutor alone. (cir. 1-89)
It is the formal mode of implementing the
constitutional right of the accused to be informed (g) Unless a shorter period is provided by special
of the cause and nature of the accusations against law or Supreme Court circular, the arraignment
him. shall be held within thirty (30) days from the date
the court acquires jurisdiction over the person of
PLEA
the accused. The time of the pendency of a
It pertains to the matter which the accused, on his motion to quash or for a bill of particulars or other
arraignment, alleges in answer to the charge
causes justifying suspension of the arraignment
against him. shall be excluded in computing the period. (sec. 2,
cir. 38-98)
Section 1. Arraignment and plea; how made. —
Bar Exam Question 2012
(a) The accused must be arraigned before the 81. The case of R, who is under detention,
court where the complaint or information was filed was raffled to the RTC on March 1. His
or assigned for trial. The arraignment shall be arraignment should be set not later than:
made in open court by the judge or clerk by a. March 4;
furnishing the accused with a copy of the b. March 16;
complaint or information, reading the same in the c. March 30;
language or dialect known to him, and asking him d. March 11.
whether he pleads guilty or not guilty. The SUGGESTED ANSWER: (d), The
prosecution may call at the trial witnesses arraignment of R should be set not later
other than those named in the complaint or than March 11. Under Section 1, Rule 116
information.
of the Rules of Court, the accused shall be

________________________________________________________________________________________________
arraigned within ten (10) days from the without delay and trial should
date of the raffle. commence within 3 days
No postponement except
sickness of the accused
NOTES: Some important considerations: or other grounds beyond
1. Trial in absentia is allowed only after the court’s control.
accused has been arraigned; 2. RA 7610—Trial shall commence
2. Judgment is generally void when there is within 3 days from arraignment.
lack of arraignment (Cabangangan vs.
Concepcion); Notes: the court has no duty to point out the
3. There can be no arraignment in absentia; duplicitousness of the offenses charged in the
Note: However, arraignment in information/complaint or to point out other defects.
absentia is technically allowed under It is the solemn duty of the lawyer to be vigilant to
Rule 14, sec. 2, Rules of Procedure protect his client.
for Environmental Cases (RPEC).
GR: It is generally presumed, unless otherwise
4. if the accused went to trial without proved, that an arraignment was duly conducted in
arraignment, but his counsel had the the course of the proceedings. This springs from
opportunity to cross-examine the the presumption of regularity in the performance of
witnesses of the prosecution and after the official duty.
prosecution he was arraigned, the defect
was cured (P. vs. Atienza and Closa). Exception: When the accused is charged with a
capital offense. This is because of the primacy of
If the information is materially amended, the right to life of the accused. The effect might be
arraignment to the amended information is irreversible.
mandatory.
WHEN PLEA OF NOT GUILTY SHOULD BE
ENTERED:
PERIOD TO PLEA
1. When the accused so pleaded;
A. when the accused is under preventive 2. When he refuses to plead;
detention: 3. Where in admitting the act charged, he
sets up matter of defense or with lawful
His case shall be raffled and its justification;
records transmitted to the judge to 4. When he enters a conditional plea of guilt;
whom the case was raffled within 5. Where after plea of guilty, he introduces
3 days from the filing of the evidence of self defense or other
complaint or information and the exculpatory evidence;
accused arraigned within 10 days 6. When the plea is indefinite or ambiguous.
from the date of the raffle. The 7. When accused, on bail, failed to appear
pre-trial conference shall be held on the date of his arraignment (Rule 14,
within 10 days after arraignment. sec. 2, RPEC)
B. When the accused is not under

preventive detention: GR: An unconditional plea of guilty admits the
Unless a shorter period is crime and all attendant circumstances alleged in
provided by special law or the SC the information including the allegation of
circular, the arraignment shall be conspiracy and warrants judgment of conviction
held within 30 days from the date without need of further evidence.
the court acquires jurisdiction over
the person of the accused. EXCEPTIONS:
1. Where the plea of guilty is compelled by
C. Some laws providing for a shorter violence or intimidation;
period for arraignment: 2. When the accused did not fully
understand the consequences of his plea;
1. RA 4908—Complainant is about 3. Where the information is insufficient to
to depart from the Philippines sustain conviction of the offense charged;
without definite date of return;
accused should be arraigned

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4. Where the information does not charged It is the process whereby the accused, the
an offense. Any conviction thereunder is offended party and the prosecution work out a
void; mutually satisfactory disposition of the case
5. Where the court has no jurisdiction. subject to the court’s approval. It usually involves
6. Plea of guilt if for a capital offense. the defendant’s pleading guilty to a lesser offense
or to only one or some of the counts of a multi-
NOTE: The accused is not entitled to know in count indictment in return for a lighter sentence
advance all the prosecution witnesses. To allow than that for the graver charge.
otherwise would jeopardize the administration of
criminal justice. If the accused entered a plea of guilty to a lesser
offense without the consent of the offended party
NOTE: The case of P. vs. Balisacan, is not and the prosecutor and was convicted, his
anymore controlling, which held that when the subsequent conviction of the crime charged would
accused pleads guilty but is allowed to present not place him in DOUBLE JEOPARDY.
evidence for mitigating circumstance, but in effect
presented a complete justifying circumstance, the Bar Exam Question 2012
plea is deemed vacated. Hence there is no more 15. At arraignment, X pleads not guilty to a
standing plea on the judgment of acquittal, double Robbery charge. At the pretrial, he changes
jeopardy does not apply in case of subsequent his mind and agrees to a plea bargaining,
appeal by the government for the same offense. with the conformity of the prosecution and
The new rule is that when the accused pleads offended party, which downgraded the
guilty BUT presents exculpatory evidence, a plea offense to theft. The Court should therefore:
of not guilty shall be entered for him(by the court a. render judgment based on the change of
or order of the court). plea.
b. allow the withdrawal of the earlier plea
Note: mere written manifestation is not a valid and arraign X for theft and render
plea as required by the Rules. judgment.
c. receive evidence on the civil liability
ACQUITTAL DESPITE PLEA OF GUILTY and render judgment.
Despite the plea of guilty, the accused must be d. require the prosecution to amend the
acquitted when the TOTALITY of the evidence information.
points to his acquittal. Hence, conviction in this SUGGESTED ANSWERS: (b) and (c), The
case is a grave abuse of discretion correctible by
Court should allow the withdrawal of the
certiorari.
earlier plea and arraign X for theft and
render judgment without need of an
Note that certiorari may be accompanied by a
amendment of complaint or information.
Petition for Habeas Corpus to obtain immediate
(Rule 116, Sec. 2, Rules of Court). Be that
release of the accused from detention.
as it may, the Court has to receive
evidence on the civil liability which is
Section 2. Plea of guilty to a lesser offense. — impliedly instituted with the criminal
At arraignment, the accused, with the consent of action before it renders a judgment
the offended party and the prosecutor, may be against X. (Rule 111, Sec.1, Rules of
allowed by the trial court to plead guilty to a lesser
Court).
offense which is necessarily included in the
offense charged. After arraignment but before trial,
Plea of Guilty; to a Lesser Offense (2002)
the accused may still be allowed to plead guilty to D was charged with theft of an article worth
said lesser offense after withdrawing his plea of
p15,000.00. Upon being arraigned, he pleaded not
not guilty. No amendment of the complaint or
guilty to the offense charged. Thereafter, before trial
information is necessary. (sec. 4, circ. 38-98)
commenced, he asked the court to allow him to
change his plea of not guilty to a plea of guilt but only
PLEA OF GUILTY to estafa involving P5,000.00. Can the court allow D to
It is an unconditional admission of guilt, freely, change his plea? Why? (2%)
voluntarily and made with full knowledge of the SUGGESTED ANSWER:
consequences and meaning of his act and with a No, because a plea of guilty to a lesser offense may be
clear understanding of the precise nature of the allowed if the lesser offense is necessarily included in
crime charged in the complaint or information. the offense charged. (Rule 116, sec. 2). Estafa involving
P5,000.00 is not necessarily included in theft of an
PLEA BARGAINING article worth P15,000.00

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can be had without the need of submission of

DOJ CIRCULAR ON THE CONSENT OF THE evidence.
PROSECUTOR (DOJ CIRC. No. 55, March 11,
1996) Exceptions: (non-waivable defenses)
If the penalty imposable is prision mayor or higher,
or a fine exceeding 12,000, the trial prosecutor 1. Lack of jurisdiction;
shall submit comment or recommendation to the 2. Failure to charge an offense;
city or provincial prosecutor or to the chief state 3. Prescription of the offense;
prosecutor for approval. If approved, trial
4. Defendant would be placed in double
prosecutor may, with the consent of the offended jeopardy.
party, enter into plea bargaining.
FAILURE TO CHARGE AN OFFENSE
Plea of guilty to a lesser offense after prosecution Where the facts charged in the information do not
rests is allowed when the prosecution does not state an offense, no conviction thereon can be had
have sufficient evidence to convict the accused of notwithstanding the accused’s plea of guilty (P. vs.
the crime charged (P. vs. Villarama210 SCRA 246 Digoro, 16 SCRA 376).
[1992].
Section 5. Withdrawal of improvident plea of
Section 3. Plea of guilty to capital offense; guilty. — At any time before the judgment of
reception of evidence. — When the accused conviction becomes final, the court may permit an
pleads guilty to a capital offense, the court shall improvident plea of guilty to be withdrawn and be
conduct a searching inquiry into the voluntariness substituted by a plea of not guilty. (5)
and full comprehension of the consequences of
his plea and require the prosecution to prove his Plea of guilty not subject not collateral attack.
guilt and the precise degree of culpability. The
accused may present evidence in his behalf. (3a) INSTANCES OF IMPROVIDENT PLEA
Note: The rule is mandatory. The accused must 1. Plea of guilty was compelled by violence
be informed of his right to present evidence if he or intimidation;
so desires. 2. The accused did not fully understand the
consequences of his plea;
To constitute SEARCHING INQUIRY, the 3. Insufficient information to sustain
questioning must focus on: conviction;
1. The voluntariness of the plea; 4. Information does not charge an offense;
2. Whether the accused understood fully the 5. Court has no jurisdiction.
consequences of his plea.
3. Whether or not the custodial rights of the NOTE: The withdrawal of plea of guilty is not a
accused were observed (P. vs. Durango, matter right but of sound judicial discretion (P. vs.
GR NO. 135428, April 5, 2000). Lambrino, 103 Phil. 504).
EFFECT OF IMPROVIDENT PLEA Section 6. Duty of court to inform accused of

If the sole basis of the conviction is the his right to counsel. — Before arraignment, the
improvident plea, judgment of conviction should court shall inform the accused of his right to
be reversed. However, if there exists sufficient counsel and ask him if he desires to have one.
evidence in the record for his conviction, Unless the accused is allowed to defend himself in
conviction should be sustained (P. vs. Petalcorin, person or has employed a counsel of his choice,
GR O. 65376, Dec.29, 1989). the court must assign a counsel de oficio to
defend him. (6a)
Section 4. Plea of guilty to non-capital offense;
reception of evidence, discretionary. — When DUTIES OF THE COURT WHEN THE ACCUSED
the accused pleads guilty to a non-capital offense, APPEARS WITHOUT COUNSEL (FOUR-FOLD):
the court may receive evidence from the parties to
determine the penalty to be imposed. (4) 1. It must inform the defendant that it is his
right to have an attorney before being
GR: As a rule, the unconditional plea of guilty arraigned;
admits all the allegations in the complaint or 2. After giving such information, the court
information including all its attendant must ask him if he desires the aid of an
circumstances and such, a judgment of conviction attorney;

________________________________________________________________________________________________
3. If he desires, but is unable to employ one, As long as the counsel de oficio

the court shall assign an attorney de oficio duly performed his duties, lack of
to defend him; sympathy to the defendant’s
4. If the accused desires to procure an cause does not deny the accused
attorney of his own, he be given the right to counsel (P. vs. Prieto,
reasonable time therefore.(P. vs. Holgado, 80 Phil. 138).
85 Phil. 752 [1950]. 4. Right to counsel substantially satisfied
even where the counsel de oficio
Failure of the court to comply with the above appeared only after trial has commenced
duties is denial of due process. as long as he was given the right to cross-
examine the witnesses of the prosecution
Presumption of regularity in the performance of (US vs. Ramirez, 26 Phil. 616).
duties does not prevail over the claim that the 5. Right to counsel de parte during
accused has failed to appeal because he was not arraignment is not absolute.
assisted by counsel (Amar vs. Moscoso, 98 Phil. 6. Right to counsel during trial may be
115). waived. It must be raised before the trial
court. Otherwise, it may not be raised for
the first time on appeal.
Section 7. Appointment of counsel de oficio. — 7. Duty of the court during arraignment does
The court, considering the gravity of the offense not include information as to the (duration)
and the difficulty of the questions that may arise, penalty for the offense.
shall appoint as counsel de oficio only such
members of the bar in good standing who, by Section 8. Time for counsel de oficio to prepare
reason of their experience and ability, can for arraignment. — Whenever a counsel de oficio
competently defend the accused. But in localities is appointed by the court to defend the accused at
where such members of the bar are not available, the arraignment, he shall be given a reasonable
the court may appoint any person, resident of the time to consult with the accused as to his plea
province and of good repute for probity and ability, before proceeding with the arraignment. (8)
to defend the accused. (7a)
Note: What is reasonable is dependent upon
NOTES: various circumstances like the gravity of the
offense, complexity of the allegations, etc.
1. Private prosecutor disqualified to act as
counsel de oficio. Section 9. Bill of particulars. — The accused
A private prosecutor who assisted may, before arraignment, move for a bill of
the prosecution of the case as to particulars to enable him properly to plead and to
the other co-accused cannot be prepare for trial. The motion shall specify the
appointed as counsel de oficio of alleged defects of the complaint or information and
one of the alleged perpetrators the details desired. (10a)
(US vs. Laranja, 21 Phil. 500).
2. Counsel de officio need not be a choice of NOTE: The remedy against an indictment which
the accused (US vs. Laranja, supra).
that fails to allege the time of the commission of
the crime with sufficient definiteness is a motion
Duties of the court during arraignment and
for a bill of particulars, not motion to quash
duties during trial distinguished
(Rocaberte vs. P., 193 SCRA 152 [1991].
The court has the affirmative duty to inform the
accused of his right to counsel during the Bill of particulars available to specify the age of
arraignment. While on the trial, it is for the the minor below 12 years of age, which is
accused to assert his right to counsel (US vs. different from a minor 7 years of age, who is
Binajoh, 35 Phil. 23). raped. (P. vs. Fuertes, 296 SCRA 602 [1998].
Otherwise stated, in arraignment, the presumption
that official duties are regularly performed may not Failure to ask for bill of particulars amounts to
apply. While on trial, the presumption applies. The waiver of right (P. vs. Gutierrez, 91 Phil. 876).
right to counsel is non-waivable on arraignment
BUT is waivable on trial by his silence or failure to
assert his right. Section 10. Production or inspection of
material evidence in possession of
3. Reluctance of counsel de oficio does not prosecution. — Upon motion of the accused
amount to denial of right to counsel. showing good cause and with notice to the parties,

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the court, in order to prevent surprise, (b) There exists a prejudicial question;
suppression, or alteration, may order the and
prosecution to produce and permit the inspection
and copying or photographing of any written (c) A petition for review of the resolution
statement given by the complainant and other of the prosecutor is pending at either the
witnesses in any investigation of the offense Department of Justice, or the Office of the
conducted by the prosecution or other President; provided, that the period of
investigating officers, as well as any designated suspension shall not exceed sixty (60)
documents, papers, books, accounts, letters, days counted from the filing of the petition
photographs, objects or tangible things not with the reviewing office. (12a)
otherwise privileged, which constitute or contain
evidence material to any matter involved in the Other incidents that may suspend the period
case and which are in the possession or under the of arraignment:
control of the prosecution, police, or other law 1. Pendency of a motion to quash;
investigating agencies. (11a) 2. Motion for bill of particulars;
3. Motion for inhibition of judge.
Note: modes of discovery are available in
Preliminary Investigation (Web vs. De Leon, 247 Note: Petition for Review in the Office of the
SCRA 653 [1995]. President only in cases of which the imposable
penalty is non-bailable.
Discovery; Production and Inspection (2009) No.XI.A.
The accused in a criminal case has the right to avail of Bar Exam Question 2012
the various modes of discovery. SUGGESTED ANSWER: 12. An accused may move for the suspension
TRUE. The accused has the right to move for the of his arraignment if:
production or inspection of material evidence in the a. a motion for reconsideration is pending
possession of the prosecution. It authorizes the before the investigating prosecutor.
defense to inspect, copy or photograph any evidence b. accused is bonded and his bondsman
of the prosecution in its possession after obtaining failed to notify him of his scheduled
permission from the court (Rule 116, Sec. 10; Webb arraignment.
vs. De Leon, 247 SCRA 652 [1995]). ALTERNATIVE c. a prejudicial question exists.
ANSWER: FALSE. The accused in criminal case only d. there is no available public attorney.
has the right to avail of conditional examination of SUGGESTED ANSWER:
his witness before a judge, or, if not practicable, a (c), Under Section 11, Rule 116 of the
member of a Bar in good standing so designated by Rules of Criminal Procedure, upon motion
the judge in the order, or if the order be made by a of the proper party, the arraignment shall
court of superior jurisdiction, before an inferior court be suspended in the following cases: (a)
to be designated therein. (sec.12 &13, Rule 119). The accused appears to be suffering from
an unsound mental condition which
Modes of discovery under civil actions does not apply
effectively renders him unable to fully
to criminal proceedings because the latter is primarily
understand the charge against him and to
governed by the REVISED RULES OF CRIMINAL
plead intelligently thereto. In such case,
PROCEDURE (Vda. de Manguerravs Risos – 563 SCRA
the court shall order his mental
499). examination and, if necessary, his
confinement for such purpose; (b) There
exists a prejudicial question; and (c) A
Section 11. Suspension of arraignment. — petition for review of the resolution of the
Upon motion by the proper party, the arraignment prosecutor is pending at either the
shall be suspended in the following cases: Department of Justice, or the Office of the
President; provided that the period of
(a) The accused appears to be suffering suspension shall not exceed sixty (60)
from an unsound mental condition days counted from the filing of the
which effectively renders him unable to petition with the reviewing office. (Rule
fully understand the charge against him 116, Sec. 11, Rules of Court).
and to plead intelligently thereto. In such
case, the court shall order his mental
examination and, if necessary, his
confinement for such purpose;

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RULE 117 merits as it would impair the right of the accused

to speedy trial.
Motion to Quash
MOTION TO QUASH 43. Which of the following statements is
It is a special pleading filed by the defendant incorrect?
before entering his plea, which hypothetically a. A Motion to Quash which is granted is a
admits the truth of the facts spelled out in the bar to the prosecution for the same offense if
complaint or information at the same time that it the criminal action or liability has been
sets up a matter which, if duly proved, would extinguished.
preclude further proceedings. b. In the Court of Appeals, the accused may
file a motion for
The court in resolving the motion cannot consider new trial based only on newly discovered
facts contrary to those alleged in the information evidence.
or which do not appear on the face of the c. A demurrer to evidence may be filed
information, except those admitted by the without leave of court in a criminal case.
prosecution. d. None of the above.
SUGGESTED ANSWER: (d), A Motion to
GR: The accused may move to quash the Quash which is granted is a bar to the
complaint or information at any time BEFORE prosecution for the same offense if the
entering his plea. criminal action or liability has been
extinguished. (Rule 117, Sec.6 in relation
Exceptions: (non-waivable) to Section3). In the Court of Appeals, the
1. Failure to charge an offense; accused may file a motion for new trial
2. Lack of jurisdiction over the offense based only on newly discovered evidence.
charged; (Rule 53, Sec. 1, Rules of Court). A
3. Extinction (prescription)of the offense or demurrer to evidence may be filed without
penalty; leave of court in criminal case. (Rule 119,
4. Defendant would be placed in double Sec. 23, Rules of Court).
jeopardy.
Section 1. Time to move to quash. — At any Section 3. Grounds. — The accused may move
time before entering his plea, the accused may to quash the complaint or information on any of
move to quash the complaint or information. (1) the following grounds:
Section 2. Form and contents. — The motion to (a) That the facts charged do not constitute an
quash shall be in writing, signed by the accused offense;
or his counsel and shall distinctly specify its
factual and legal grounds. The court shall
(b) That the court trying the case has no
consider no ground other than those stated in the
jurisdiction over the offense charged;
motion, except lack of jurisdiction over the offense
charged. (2a)
(c) That the court trying the case has no
jurisdiction over the person of the accused;
NOTE: A motion to suspend the issuance of
warrant of arrest is considered motion to quash
where the allegations in the motion sufficiently (d) That the officer who filed the information had
alleges that the information does not charge an no authority to do so;
offense. The allegations contained in the body of
the motion is controlling not the caption or title of (e) That it does not conform substantially to the
the motion (P. vs. Matondo, 1 SCRA 534). prescribed form;
(f) That more than one offense is charged except

when a single punishment for various offenses is
RESOLUTION OF A MOTION TO QUASH prescribed by law;
A motion to quash must be resolved BEFORE
the trial and cannot defer the hearing and the (g) That the criminal action or liability has been
determination of said motion until trial on the extinguished;

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(h) That it contains averments which, if true, would 1. Two grounds to quash an Information are:
constitute a legal excuse or justification; and a) That the facts charged do not constitute an offense;
and
(i) That the accused has been previously b) That the court trying the case has no jurisdiction
convicted or acquitted of the offense charged, or over the offense charged or the person of the accused.
the case against him was dismissed or otherwise c) That the officer who filed the information had no
terminated without his express consent. (3a) authority to do so;
d) That it does not conform substantially to the
prescribed form;
e) That more than one offense is charged except in
Information; Motion to Quash (2005) those cases in which existing laws prescribe a single
Rodolfo is charged with possession of unlicensed punishment for various offenses;
firearms in an Information filed in the RTC. It was f) That the criminal action or liability has been
alleged therein that Rodolfo was in possession of two extinguished;
unlicensed firearms: a .45 caliber and-a .32 caliber. g) That it contains averments which, if true, would
Under Republic Act No. 8294, possession of an constitute a legal excuse or justification; and
unlicensed .45 caliber gun is punishable by prision h) That the accused has been previously convicted or
mayor in its minimum period and a fine of P30.000.00, in jeopardy of being convicted, or acquitted of the
while possession of an unlicensed .32 caliber gun is offense charged. (Sec. 3, Rule 117. Rules of Criminal Procedure.)
SUGGESTED ANSWER:
punishable by prision correctional in its maximum 2. No. The certification which is provided in Sec. 4,
period and a fine of not less than P15,000.00. As Rule 112. Rules of Criminal Procedure, is not an
counsel of the accused, you intend to file a motion to indispensable part of the information. (People vs.
quash the Information. What ground or grounds Lapura, 255 SCRA 85.)
should you invoke? Explain. (4%)
SUGGESTED ANSWER: Information; Motion to Quash (2009)
The ground for the motion to quash is that more than No.IV. Pedrito and Tomas, Mayor and
one offense is charged in the information. (Sec. 3[f], Rule Treasurer, respectively, of the Municipality of
117, 2000 Rules of Criminal Procedure) Likewise, the RTC has San Miguel, Leyte, are charged before the
no jurisdiction over the second offense of possession Sandiganbayan for violation of Section 3(e),
of an unlicensed .32 caliber gun, punishable by prision RA no. 3019 (Anti-Graft and Corrupt
correctional in its maximum period and a fine of not Practices Act). The information alleges,
less than P15.000.00. It is the MTC that has exclusive among others, that the two conspired in the
and original jurisdiction over all offenses punishable by purchase of several units of computer
imprisonment not exceeding six years. (Sec. 2, R.A. No. through personal canvass instead of a public
7691, amending B.P. Blg. 129)
bidding, causing undue injury to the
municipality. Before arraignment, the
Information; Motion to Quash (2009) No.XVI.B. A
accused moved for reinvestigation of the
criminal information is filed in court charging Anselmo
charge, which the court granted. After
with homicide. Anselmo files a motion to quash
reinvestigation, the Office of the Special
information on the ground that no preliminary Prosecutor filed an amended information
investigation was conducted. Will the motion be duly singed and approved by the Special
granted? Why or why not? SUGGESTED ANSWER: NO, Prosecutor, alleging the same delictual facts,
the motion to quash will not be granted. The lack of but with an additional allegation that the
preliminary investigation is not a ground for a motion accused gave unwarranted benefits to SB
to quash under the Rules of Criminal Procedure. enterprises owned by Samuel. Samuel was
Preliminary investigation is only a statutory right and also indicted under the amended
can be waived. The accused should instead file a information. Before Samuel was arraigned,
motion for reinvestigation within five (5) days after he moved to quash the amended information
he learns of the filing in Court of the case against him on the ground that the officer who filed had
(Sec. 6, Rule 112, as amended). no authority to do so. Resolve the motion to
quash with reasons. SUGGESTED ANSWER:
Information; Motion to Quash; Grounds (1998) The motion to quash filed by Samuel
1 Give two (2) grounds to quash an Information.[2%] should be granted. There is no showing
2 If the Information is not accompanied by a that the special prosecutor was duly
certification that a preliminary investigation has been authorized or deputized to prosecute
conducted. Is the Information void? [3%] Samuel. Under R.A. No. 6770, also known
SUGGESTED ANSWER: as the Ombudsman Act of 1989, the

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Special Prosecutor has the power and no authority to file the information, the court did not
authority, under the supervision and acquire jurisdiction over the person of the accused and
control of the Ombudsman, to conduct over the subject matter of the offense charged. (Cudia
preliminary investigation and prosecute v. Court of Appeals, 284 SCRA 173 [1999]). Hence, this
criminal cases before the Sandiganbayan ground is not waived if not raised in a motion to quash
and perform such other duties assigned to and could be raised at the pretrial. (Sec. 8, Rule 117, Rules of
him by the Ombudsman (Calingin vs. Court).
Desierto, 529 SCRA 720 [2007]). Absent a
clear delegation of authority from the
Ombudsman to the Special Prosecutor to NOTES:
file the information, the latter would have
no authority to file the same. The Special 1. Matters of defense not a proper ground for
Prosecutor cannot be considered an alter motion to quash (P. vs. Miranda, 2 SCRA
ego of the Ombudsman as the doctrine of 261 [1961]). EXCEPTION: Extinction of
qualified political agency does not apply criminal liability; prescription; and former
to the office of the Ombudsman. In fact, jeopardy.
the powers of the office of the Special
Prosecutor under the law may be exercised Affidavit of desistance is not a
only under the supervision and control ground for Motion to Quash. But it
and upon authority of the Ombudsman may be a ground for dismissal
(Perez vs. Sandiganbayan, 503 SCRA 252 (Demurrer to evidence), for
[2006]). absence of evidence by the State
ALTERNATIVE ANSWER: (Review Lecture).
The motion to quash should be denied for
lack of merit. The case is already filed in 2. Fatally defective information is not
court which must have been done with the necessarily void when not objected to
approval of the Ombudsman, and thus the during trial and supplemented by
Special Prosecutor‟s office of the competent proof (P. vs. Belga, 100 Phil.
Ombudsman takes over. As it is the court 996 [1957]).
which ordered the reinvestigation, the
Office of the Special Prosecutor which is Note: substantial defects in the
handling the case in court, has the information that would jeopardize the right
authority to act and when warranted, to be informed of the nature and cause of
refile the case. The amendment made is accusations against the accused is not
only a matter of form which only cured by evidence (IIo, et al. vs. CA, 108
particularized the violation of the same Phil. 938 [1960]).
provision of Rep. Act 3019, as amended.
Trial tip: when the information does not
charge an offense, do not file a motion to
quash, but go to trial because the
Information; Motion to Quash (2000) prescriptive period will not be suspended
BC is charged with illegal possession of firearms under if the information is void (Atty. Ucat)
an Information signed by a Provincial Prosecutor.
After arraignment but before pre-trial, BC found out 3. For discussion on jurisdiction, please refer
that the Provincial Prosecutor had no authority to sign to explanations found elsewhere in this
and file the information as it was the City Prosecutor work.
who has such authority. During the pre-trial, BC
moves that the case against him be dismissed on the
ground that the Information is defective because the 4. Jurisdiction over the person of the
officer signing it lacked the authority to do so. The accused is obtained:
Provincial Prosecutor opposes the motion on the a) When he was arrested;
ground of estoppel as BC did not move to quash the b) When he submits voluntarily to
Information before arraignment. If you are counsel for the jurisdiction of the court.
BC, what is your argument to refute the opposition of
the Provincial Prosecutor? (5%) Note: It has been held that a
SUGGESTED ANSWER: motion to quash on the ground of
I would argue that since the Provincial Prosecutor had lack of jurisdiction over the person
of the accused must be solely on

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based on this ground. The charge so as to enable him to prepare his

inclusion of other grounds is defense (P. vs. Ferrer, L-8957, April 29,
deemed to be a submission to the 1957).
courts jurisdiction (Sanchez vs.
Demetriou, GR NO. 111771-77, 8. Grounds for extinction of criminal liability.
Nov. 9, 1993).
Art. 89. How criminal liability is totally
The rule is different in civil cases extinguished. — Criminal liability is totally
because of the Omnibus Motion
extinguished:
Rule.
1. By the death of the convict, as to the
5. Want of authority of the officer filing the personal penalties and as to pecuniary
information. penalties, liability therefor is extinguished
A fiscal is without authority to file only when the death of the offender occurs
information outside its territorial before final judgment.
jurisdiction (Cudia vs. CA, GR NO. 2. By service of the sentence;
110315, Jan. 16, 1998).
3. By amnesty, which completely extinguishes
Lack of authority of the person filing the the penalty and all its effects;
information cannot be cured by silence, 4. By absolute pardon;
acquiescence, even by express consent. 5. By prescription of the crime;
The general rule is that if defendant enters 6. By prescription of the penalty;
a plea before filing a motion to quash, all
7. By the marriage of the offended woman, as
objections to the information in so far as
formal objections are deemed waived. A provided in Article 344 of this Code.
valid complaint is a requisite for the court
to acquire jurisdiction over the case. A NOTE: These grounds are EXCLUSIVE in
valid information is one which is signed character.
and filed by a competent(authorized) Accordingly, it was held that lack of preliminary
person. Hence, lack of authority of the investigation is not a ground for a motion to quash,
person who filed the information may be not only because it is not stated in the rules as
raised at any stage of the proceedings one of the grounds, but also because lack of PI
being intimately connected with the does not impair the validity of the information,
jurisdiction of the court (Villa vs. Ibañez, does not render it otherwise defective and does
88 Phil. 402). not affect the jurisdiction of the court over the case
(P. vs. Yutila, 102 SCRA 264).
Lack of authority may not be cured by
amendment of the information (Cruz, Jr. a. Death of one of the co-accused does not
vs. Sandiganbayan, 194 SCRA 474 cause the dismissal of the criminal action
[1991]). (US vs. De La Torre and Gregorio, 25
Phil. 36).
6. Formal defects not prejudicial to the b. Death of offended party generally does
substantial rights of the accused will not not affect or bar the prosecution of the
be sustained as ground for quashing the case. The real offended party in a public
information. The proper procedure is for offense is the state.
the court to order the amendment of the However, with respect to crimes which
information pursuant to sec. 4, Rule 117. cannot be prosecuted de oficio
(adultery/concubinage) death of the
7. Duplicity of offenses charged. offended party BEFORE the institution of
Failure to move for the quashal of the the action BARS the further prosecution of
information on the ground of duplicity of the case. Note that such does not
offenses before arraignment is deemed extinguished the criminal liability but only
waiver of the defect. Hence, the accused constitute a procedural bar for the
can be convicted of crimes as charged prosecution of the case.
and proved on trial (P. vs. Errojo, 229 c. Partial extinction of criminal liability:
SCRA 49 [1994]). By conditional pardon;
Commutation of sentence;
REASON FOR THE RULE: To give the Good conduct allowance (art. 94,
defendant the necessary knowledge of the RPC).

________________________________________________________________________________________________
Parole.
d. Effect of pardon by the offended party
9. Amnesty completely extinguishes penalty and
its effect (Republic vs. Vera, 182 SCRA 800 Art. 344, RPC. Prosecution of the crimes of
[1990]). adultery, concubinage, seduction, abduction,
rape and acts of lasciviousness. — The crimes of
a. Amnesty may be proved even if not
pleaded (P. vs. Macadaeg, 91 Phil. 410).
adultery and concubinage shall not be prosecuted
b. Pardon and amnesty distinguished. except upon a complaint filed by the offended
spouse.
PARDON AMNESTY
Pardon is granted Proclamation by the The offended party cannot institute criminal
by the Chief Chief Executive and prosecution without including both the guilty
Executive concurrence of
parties, if they are both alive, nor, in any case, if
Congress
Must be pleaded Need not be alleged he shall have consented or pardoned the
and proved (private and proved (public offenders.
act of the act which the courts
president) can take judicial The offenses of seduction, abduction, rape or acts
notice) of lasciviousness, shall not be prosecuted except
Can be granted
upon a complaint filed by the offended party or
Pardon is granted generally at any
only after final time even before her parents, grandparents, or guardian, nor, in
conviction prosecution is any case, if the offender has been expressly
commenced or after pardoned by the above named persons, as the
conviction case may be.
Generally available Generally granted
to any class of to persons who are
In cases of seduction, abduction, acts of
crimes guilty of political
offenses lasciviousness and rape, the marriage of the
Pardon looks offender with the offended party shall extinguish
forward and Looks backwards the criminal action or remit the penalty already
relieves the and abolishes and imposed upon him. The provisions of this
offender from the puts into oblivion paragraph shall also be applicable to the co-
imposition of the the offense itself
principals, accomplices and accessories after the
penalty but does and the person
not work for the stands before the fact of the above-mentioned crimes.
restoration of the law as though he
rights to hold public had committed no Art. 266-C, RPC. Effect of Pardon—The
office, or the right crime subsequent valid marriage between the offender
of suffrage, and and the offended party shall extinguish the
other vestiges of
the crime (like
criminal action or the penalty imposed.
moral turpitude)
unless expressly In case it is the legal husband who is the offender,
remitted in the the subsequent forgiveness by the wife as the
pardon) offended party shall extinguish the criminal action
or the penalty: Provided, That the crime shall not
The grant of pardon to one of the persons
be extinguished or the penalty shall not be
convicted of the offense does not necessarily
inure to the benefit of the other (US vs. Guarin, 30 abated if the marriage be void ab initio (RA 8353).
Phil. 85).
Note: however, if multiple rapes are committed,
c. The person granted conditional pardon marriage of one of the defendants extinguishes
must STRICTLY comply with the terms of the latter’s liability and that of his accessories or
the pardon. The same is a contract accomplices for a single crime of rape only and
between him and the Chief Executive. If cannot extend to other separate acts of rape; each
he violates the conditions, art. 159, RPC carnal act constitutes a separate and distinct
shall be applied to him. crime of rape (P. vs. Bernardo, 38 OG 3479).

________________________________________________________________________________________________
those punishable by arresto mayor, which shall

Jurisdiction; Finality of a Judgment (2005) prescribe in five years.
Mariano was convicted by the RTC for raping Victoria
and meted the penalty of reclusion perpetua. While
serving sentence at the National Penitentiary, Mariano The crime of libel or other similar offenses shall
and Victoria were married. Mariano filed a motion in prescribe in one year.
said court for his release from the penitentiary on his
claim that under Republic Act No. 8353, his marriage The crime of oral defamation and slander by deed
to Victoria extinguished the criminal action against shall prescribe in six months.
him for rape, as well as the penalty imposed on him.
However, the court denied the motion on the ground
that it had lost jurisdiction over the case after its
Light offenses prescribe in two months.
decision had become final and executory. (7%)
a) Is the filing of the court correct? Explain. When the penalty fixed by law is a compound
SUGGESTED ANSWER: one, the highest penalty shall be made the basis
No. The court can never lose jurisdiction so long as its of the application of the rules contained in the
decision has not yet been fully implemented and
first, second and third paragraphs of this article.
satisfied. Finality of a judgment cannot operate to
divest a court of its jurisdiction. The court retains an (As amended by RA 4661, approved June 19,
interest in seeing the proper execution and 1966).
implementation of its judgments, and to that extent,
may issue such orders necessary and appropriate for Art. 91. Computation of prescription of offenses.
these purposes. (Echegaray v. Secretary of Justice, G.R. — The period of prescription shall commence to
No. 13205, January 19, 1999)
run from the day on which the crime is
b) What remedy/remedies should the counsel of
Mariano take to secure his proper and most discovered by the offended party, the authorities,
expeditious release from the National Penitentiary? or their agents, and shall be interrupted by the
Explain. filing of the complaint or information, and shall
SUGGESTED ANSWER:
commence to run again when such proceedings
To secure the proper and most expeditious release of
Mariano from the National Penitentiary, his counsel terminate without the accused being convicted or
should file: (a) a petition for habeas corpus for the acquitted, or are unjustifiably stopped for any
illegal confinement of Mariano (Rule 102), or (b) a reason not imputable to him.
motion in the court which convicted him, to nullify the
execution of his sentence or the order of his The term of prescription shall not run when the
commitment on the ground that a supervening offender is absent from the Philippine
development had occurred (Melo v. People, G.R. No. L- Archipelago.
3580, March 22, 1950) despite the finality of the
judgment.
Art. 92. When and how penalties prescribe. — The
10. Prescription is the loss of the state of the penalties imposed by final sentence prescribe as
right to prosecute the crime or to demand the follows:
service of the penalty imposed.
1. Death and reclusion perpetua, in
(the following are pertinent RPC provisions):
twenty years;
Art. 90. Prescription of crime. — Crimes
punishable by death, reclusion perpetua or 2. Other afflictive penalties, in fifteen
reclusion temporal shall prescribe in twenty years;
years.
3. Correctional penalties, in ten years;
Crimes punishable by other afflictive penalties with the exception of the penalty of
shall prescribe in fifteen years. arresto mayor, which prescribes in five
years;
Those punishable by a correctional penalty shall
prescribe in ten years; with the exception of 4. Light penalties, in one year.

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Art. 93. Computation of the prescription of BUT note, however, in a prosecution of the crime
penalties. — The period of prescription of of Bigamy, period of prescription commenced to
run only upon the discovery of the bigamous
penalties shall commence to run from the date
marriage contracted by the accused and NOT
when the culprit should evade the service of his from the time the marriage is recorded in the civil
sentence, and it shall be interrupted if the registry (Sermonia vs. CA, 233 SCRA 155 [1994]).
defendant should give himself up, be captured, Reason: The registration of the marriage is not for
should go to some foreign country with which this the validity of the marriage.
Government has no extradition treaty, or should
Prescription of continuing crimes runs only from
commit another crime before the expiration of
the time such acts constituting the offense had
the period of prescription. ceased to exist.
a. For unlawful solicitation; computed from
OTHERS: the latest act (P. vs. Castañeda, 187
Computation of prescriptive period of violations of SCRA 148 [1990]).
special laws. b. Rebellion when such rebellion had ceased
The applicable law is Act No. 3326. to exist.
Prescription shall begin to run from the
day of the commission of the violation of Prescription of crime does not necessarily
the law, and if the same be not known at extinguish civil liability.
the time, from discovery thereof. It is
interrupted only by institution of judicial Note: The state is not barred by prescription,
proceedings for its investigation and laches, or estoppel in recovering unlawfully
punishment (Zaldivia vs. Reyes, 211 acquired public property (art. XI, sec. 15,
SCRA 277 [1992]). Constitution)
Illegal Recruitment is deemed discovered only Where the last day of the prescriptive period for
when the complainant learned that the recruiter is filing an information is a Sunday or a legal holiday,
without authority or license. the information can no longer be filed on the next
working day. The remedy is for the prosecutor to
Period of prescription under the Anti- Graft Law is file the information on the last working day before
from time of discovery and not from time of criminal offense prescribes (Yapdiangco vs.
commission Buencamino, 122 SCRA 713 [1983]).
Note: where the accused has been found to have Note: crimes punished under RA 9851
committed a lesser offense included in the offense “Philippine Act on Crimes Against
charged, he cannot be convicted of the lesser Humanitarian Law, Genocide, and other
offense if at the time of the filing of the greater Crimes Against Humanity”, does not prescribe
offense, the lesser offense had already (sec. 11).
prescribed. To hold otherwise would be to allow
circumvention of the law on prescription by simple
Section 4. Amendment of the complaint or
and expedient way of filing a graver offense which
information. — If the motion to quash is based on
includes the lesser offense( Francisco vs. CA, 122
an alleged defect of the complaint or information
SCRA 538).
which can be cured by amendment, the court shall
order that an amendment be made. (4a)
Prescription is interrupted even if there is lack of
jurisdiction (Cruz, et al. vs. Enrile, GR NO. 75983,
April 15, 1988). If it is based on the ground that the facts charged
do not constitute an offense, the prosecution shall
The rule on constructive notice in civil cases is be given by the court an opportunity to correct the
applicable in criminal cases. In a prosecution of defect by amendment. The motion shall be
Falsification of a public document, the prescriptive granted if the prosecution fails to make the
period commences to run from the period the amendment, or the complaint or information still
alleged forged document was registered with the suffers from the same defect despite the
Register of Deeds. Registration is a constructive amendment. (n)
notice to the whole world (P. vs. Villalon, 192
SCRA 521 [1990]). NOTE: When the original complaints states a
cause of action, but does it so imperfectly, and
afterwards an amended complaint is filed,

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correcting the defect, the plea of prescription will accused, if in custody, shall be discharged unless
relate to the time of the filing of the original he is also in custody for another charge. (5a)
complaint.
EFFECT IF THE COURT SUSTAINS THE
Bar Exam Question 2013 MOTION TO QUASH
IX. Which of the following distinguishes a 1. If the ground of the motion is either
motion to quash from a demurrer to a. The facts charged do not
evidence? (1%) constitute an offense;
(A) A motion to quash a complaint or b. That the officer who filed the
information is fi led before the prosecution information had no authority to do
rests its case. (B) A motion to quash may be so;
fi led with or without leave of court, at the c. That it does not conform to the
discretion of the accused. (C) When a motion prescribed form;
to quash is granted, a dismissal of the d. That more than one offense is
case will not necessarily follow. (D) The charged
grounds for a motion to quash are also
grounds for a demurrer to evidence. (E) The The court may order that another information be
above choices are all wrong. SUGGESTED filed or an amendment thereof be made, within a
ANSWER: (C), Under Section 4 of Rule 117, definite period. If such order is not made, or if
if the motion to quash is based on an having been made, another information is not
alleged defect of the complaint or filed within the time specified in the order, or within
information which can be cured by such time as the court may allow, the accused, if
amendment, the court shall order that an in custody shall be discharged, unless he is also in
amendment be made. If it is based on the custody of some other charge.
ground that the facts charged do not
constitute an offense, the prosecution 2. If the motion to quash is sustained on any
shall be given by the court an opportunity of the following grounds:
to correct the defect by amendment. The a. That criminal action or liability has
motion shall be granted if the prosecution been extinguished;
fails to make the amendment, or the b. That it contains averments, which
complaint or information still suffers from if true, would constitute a legal
the same defect despite the amendment. excuse or justification;
Section 5 of Rule 117 also provides that if c. That the accused has been
the motion to quash is sustained, the previously convicted or acquitted
court may order that another complaint or of the offense charged.
information be filed except as provided in
The court must state, in its order granting the
section 6 of this rule. If the order is made,
motion, the release of the accused if he is in
the accused, if in custody, shall not be
custody or the cancellation of his bond if he is on
discharged unless admitted to bail. If no
bail
order is made nor if having been made, no
new information is filed within the time
3. If the ground upon which the motion to
specified in the order or within such
quash is sustained is that the court has no
further time as the court may allow for jurisdiction over the offense charged, the
good cause, the accused, if in custody, better practice is for the court to remand
shall be discharged unless he is also in or forward the case to the proper court,
custody for another charge. not to quash the complaint or information.
Note: The prosecution may elevate to the higher

Section 5. Effect of sustaining the motion to courts an order granting a motion to quash. The
quash. — If the motion to quash is sustained, the accused would not be placed in double jeopardy
court may order that another complaint or because there has been no arraignment yet.
information be filed except as provided in section
6 of this rule. If the order is made, the accused, if PROCEDURE IF MOTION TO QUASH IS
in custody, shall not be discharged unless DENIED:
admitted to bail. If no order is made or if having 1. Accused should plead;
been made, no new information is filed within the 2. Accused should go to trial without
time specified in the order or within such further prejudice to the special defenses he
time as the court may allow for good cause, the invoked in the motion;

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3. Appeal from the judgment of conviction However, the conviction of the accused shall not
and assign as one of the errors the denial be a bar to another prosecution for an offense
of the motion to quash. which necessarily includes the offense charged in
the former complaint or information under any of
An order denying a motion to quash is not the following instances:
appealable.
Appeal in due time, as the proper remedy, implies (a) the graver offense developed due to
a previous conviction as a result of a trial on the supervening facts arising from the same act or
merits of the case and does not apply to an omission constituting the former charge;
interlocutory order denying the motion to quash. If
the court, in denying the motion, acts without or in (b) the facts constituting the graver charge
excess or with grave abuse of discretion, then became known or were discovered only after
certiorari or prohibition will lie (Newsweek Inc. vs. a plea was entered in the former complaint or
IAC, 142 SCRA 443). information; or
On the other hand, if the motion to quash is
granted, the order to that effect is a final order, not (c) the plea of guilty to the lesser offense was
merely interlocutory, and is, therefore, appealable made without the consent of the prosecutor
at once (Milo vs. Salonga, 152 SCRA 113). and of the offended party except as provided
in section 1 (f) of Rule 116.
Section 6. Order sustaining the motion to In any of the foregoing cases, where the accused
quash not a bar to another prosecution; satisfies or serves in whole or in part the
exception. — An order sustaining the motion to judgment, he shall be credited with the same in
quash is not a bar to another prosecution for the the event of conviction for the graver offense. (7a)
same offense unless the motion was based on the
grounds specified in section 3 (g) and (i) of this NOTES:
Rule. (6a)
Section 21, art. III, 1987 Constitution. No
person shall be twice put in jeopardy of
The exceptions are: punishment for the same offense. If an act is
1. The motion was based on the ground that
punished by a law and an ordinance,
the criminal action or liability has been
extinguished; conviction or acquittal under either shall
constitute a bar to another prosecution for
2. (Double jeopardy) that the accused has the same act.
been previously convicted or acquitted of
the offense charged, or the case against
him was dismissed or otherwise REQUISITES FOR DOUBLE JEOPARDY:
terminated without his express consent. 1. First jeopardy must have attached prior to
the second;
Section 7. Former conviction or acquittal; 2. The first jeopardy must have been validly
double jeopardy. — When an accused has been terminated;
convicted or acquitted, or the case against him 3. The second jeopardy must be for the
dismissed or otherwise terminated without his same offense, or the second offense
express consent by a court of competent includes or is necessarily included in the
jurisdiction, upon a valid complaint or information offense charged on the first information or
or other formal charge sufficient in form and an attempt or frustration to commit the
substance to sustain a conviction and after the same (P. vs. Bocar, 138 SCRA 169).
accused had pleaded to the charge, the conviction
or acquittal of the accused or the dismissal of the
case shall be a bar to another prosecution for the Bar Exam Question 2011
offense charged, or for any attempt to commit the (52) The accused was convicted for estafa
same or frustration thereof, or for any offense thru falsification of public document filed by
which necessarily includes or is necessarily one of two offended parties. Can the other
included in the offense charged in the former offended party charge him again with the
complaint or information. same crime? (A) Yes, since the wrong done
the second offended party is a separate

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crime. (B) No, since the offense refers to prosecutor then filed an information in the RTC,
the same series of act, prompted by one charging D with direct assault based on the same facts
criminal intent. (C) Yes, since the second alleged in the information for slight physical injuries
offended party is entitled to the vindication of but with the added allegation that D inflicted the
the wrong done him as well. (D) No, since the injuries out of resentment for what the complainant
second offended party is in estoppel, not had done in the performance of his duties as chairman
having joined the first criminal action. of the board of election inspectors. D moved to quash
the second information on the ground that its filing
had placed him in double jeopardy. How should D’s
Actions; Commencement of an Action; Double Jeopardy motion to quash be resolved? (4%)
(2004) SUGGESTED ANSWER:
SPO1 CNC filed with the MTC in Quezon City D’s motion to quash should be granted on the ground
(MeTCQC) a sworn written statement duly subscribed of double jeopardy because the first offense charged is
by him, charging RGR (an actual resident of Cebu necessarily included in the second offense charged.
City) with the offense of slight physical injuries [Draculan v. Donato, 140 SCRA 425 (1985)].
ALTERNATIVE ANSWER:
allegedly inflicted on SPS (an actual resident of
Quezon City). The Judge of the branch to which the D’s motion to quash should be denied because the two
case was raffled thereupon issued an order declaring dismissals of the case against him were on his motion
that the case shall be governed by the Rule on (hence with his express consent) and his right to a
Summary Procedure in criminal cases. speedy trial was not violated.
Soon thereafter, the Judge ordered the dismissal of the
case for the reason that it was not commenced by Double Jeopardy; Upgrading; Original Charges (2005)
For the multiple stab wounds sustained by the victim,
information, as required by said Rule. Sometime later,
Noel was charged with frustrated homicide in the
based on the same facts giving rise to the slight
RTC. Upon arraignment, he entered a plea of guilty to
physical injuries case, the City Prosecutor filed with the
same MeTC-QC an information for attempted said crime. Neither the court nor the prosecution was
aware that the victim had died two days earlier on
homicide against the same RGR. In due time, before
account of his stab wounds. Because of his guilty plea,
arraignment, RGR moved to quash the information on
Noel was convicted of frustrated homicide and meted
the ground of double jeopardy and after due hearing,
the corresponding penalty.
the Judge granted his motion. Was the dismissal of the
When the prosecution learned of the victim's death, it
complaint for slight physical injuries proper? Was the
filed within fifteen (15) days therefrom a motion to
grant of the motion to quash the attempted homicide
amend the information to upgrade the charge from
information correct? Reason (5%)
SUGGESTED ANSWER: frustrated homicide to consummated homicide. Noel
Yes, the dismissal of the complaint for slight physical opposed the motion claiming that the admission of the
injuries is proper because in Metropolitan Manila and amended information would place him in double
in chartered cities, the case has to be commenced only jeopardy. Resolve the motion with reasons. (4%)
SUGGESTED ANSWER:
by information. (Sec. 11, Revised Rule on Summary Procedure).
The amended information to consummated homicide
No, the grant of the motion to quash the attempted
from frustrated homicide does not place the accused in
homicide information on the ground of double
double jeopardy. As provided in the second paragraph
jeopardy was not correct, because there was no valid
of Sec. 7, Rule 117,2000 Rules of Criminal Procedure, the
prosecution for slight physical injuries.
conviction of the accused shall not be a bar to another
prosecution for an offense which necessarily includes
Double Jeopardy (2002)
D was charged with slight physical injuries in the the offense charged in the former complaint or
MTC. He pleaded not guilty and went to trial. After information when: (a) the graver offense developed
the prosecution had presented its evidence, the trial due to supervening facts arising from the same act or
court set the continuation of the hearing on another omission constituting the former charge; or (b) the
date. On the date scheduled for hearing, the facts constituting the graver charge became known or
prosecutor failed to appear, whereupon the court, on were discovered only after a plea was entered in the
motion of D, dismissed the case. A few minutes later, former complaint or information. Here, when the plea
the prosecutor arrived and opposed the dismissal of to frustrated homicide was made, neither the court nor
the case. The court reconsidered its order and directed the prosecution was aware that the victim had died
D to present his evidence. Before the next date of trial two days earlier on account of his stab wounds.
came, however, D moved that the last order be set
aside on the ground that the reinstatement of the case
It is necessary in the first case that:
had placed him twice in jeopardy. Acceding to this
motion, the court again dismissed the case. The

________________________________________________________________________________________________
1. The complaint or information or other Violation of the prosecution’s right to due

formal charge was sufficient in form and process ousts court of jurisdiction (p. VS.
substance to sustain a conviction; Bocar, 138 SCRA 171);
2. The court had jurisdiction; Judge must still be in office when
3. The accused had been arraigned and judgment is promulgated (P. vs. Tolentino,
pleaded; and GR NO. 4632 [1938]);
4. He was convicted or acquitted or the case See sec. 9, Rule 135.
was dismissed without his express
consent. OPEN COURT DOCTRINE (Olaguer vs.
Military Commission, 150 SCRA 144);
When all this circumstances are present, they
constitute a BAR to second prosecution for: C. There must be a valid Arraignment and a
1. The same offense; valid plea:
2. An attempt to commit such offense; No double jeopardy where accused is not
3. A frustration of said offense; validly arraigned (P. vs. Montiero, 192
4. Any offense which is necessarily included SCRA 548);
or necessarily includes the first offense. Mere written manifestation not a valid plea
(Jimenez vs. Military Commission, 102
SCRA 40).
Discussions of the Requisites (for 1st jeopardy)
D. Termination of first case; by conviction,
A. complaint or information must be sufficient acquittal, and dismissal without express
in form and substance: consent:
See notes on section 1; No double jeopardy in PI (Bernarte vs.
Authority of the person who filed the SND, 116 SCRA 43);
complaint or information; Mere filing of two information not basis for
Effects of defective information; double jeopardy (P. vs. Milflores,115
Conviction under information which SCRA 570);
charges no offense is void (P. vs. Austria, Dismissal must be definite and
94 Phil. 897); unconditional (P. vs. Jabajab, 100 Phil.
Defective information may be cured by 307);
evidence if no objection (Serra vs. Dismissal without prejudice to the filing of
Mortiga, 11 Phil. 762); another case is not termination (P. vs.
Mogul, 131 SCRA 296 [1984]);
But without prejudice of the right to be Dismissal with grave abuse of discretion
informed of the nature and cause of amounting to excess of jurisdiction is null
accusation. and void and cannot be a basis for plea of
double jeopardy (P. vs. Mogul, supra.);
Test of jeopardy is the crime charged in Mere grave abuse of discretion (not
the information and not that proved on amounting to amounting to lack or excess
trial. Hence, a person charged of theft but of jurisdiction) not sufficient to bar
was acquitted, may subsequently application of double jeopardy (P. vs.
prosecuted for estafa, the offense proved Hernando, 108 SCRA 1221);
in the first case of theft.( P. vs. Magat de Erroneous dismissal on the ground of
Soriano, 94 Phil. 188); prescription is valid and will not bar the
Void information or complaint will not claim of double jeopardy (P. vs. Onel, GR
confer jurisdiction to the court to hear the NO. L- 8393, April 27, 1956);
case (P. vs. Manaba, 58 Phil. 665). Presence of accused not indispensable in
promulgation but may however, lose the
B. Court of competent jurisdiction: remedies provided by the rules (sec. 6,
Jurisdiction is conferred by law and in Rule 120);
some cases, the constitution itself; Judge who rendered the decision must
Determined in the allegations; still be in office (P. vs. So, L-8732, July
Determined, generally at the time of filing 30, 1957);
of action; Judgment must be promulgated in its
Valid complaint/information confers entirety. If no promulgation, there is also
jurisdiction (P. vs. Jayme, 24 Phil. 90); no double jeopardy (Dizon vs. Lopez, 278
Venue is jurisdictional in criminal cases; SCRA 143);

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Note: Reading of the dispositive 8. Separate offenses under RPC.

portion is not enough. However, in
case if very lengthy judgments, upon TEST FOR DETRMINING WHETHER THE
motion, promulgation may be limited OFFENSES ARE IDENTICAL
to the dispositive portion only.
A. SAME OFFENSE TEST
Silence does not mean consent (P. vs. There is identity between two offenses not
Ylagan, 58 Phil. 851); only when the 2nd offense is exactly the
Note: but a notation of “No Objection” at same as the first, but also when the 2nd
the bottom of the prosecution’s motion to offense is an attempt or frustration of, or is
dismiss constitutes an express consent necessarily included in the offense
(Pendatun vs. Aragon, 93 Phil. 798). charged in the 1st information.
An appeal by the private complainant on
the civil aspect of a criminal case, of EXCEPTIONS TO THE IDENTITY RULE
which the accused is acquitted, does not 1. The graver offense developed due to
put the accused in double jeopardy supervening facts arising from the same
(Manantan vs. CA, L-107125, Jan. 29, act or omission constituting the former
2001). charge;
2. The facts constituting the graver offense
became known or were discovered only
The discharge of a defendant on a PI is not such after a plea was entered in the former
an adjudication as will bar subsequent prosecution complaint or information;
of the offense. The accused is not yet arraigned 3. The plea of guilty to the lesser offense
on PI. was made without the consent of the
prosecutor and the offended party; except
DISMISSAL VS. ACQUITTAL when the offended party fails to appear
Acquittal is always based on the merits, that is during arraignment in which case, it may
the defendant is acquitted because the evidence be made with the consent of the trial
does not show defendant’s guilt beyond prosecutor alone.
reasonable doubt; but dismissal does not decide
the case on the merits or that the defendant is not B. SAME EVIDENCE TEST
guilty. Whether the facts as alleged in the 2 nd
information, if proved, would have been
If an act is punished by two provisions of law or sufficient to sustain the former
statutes, but each provision requires proof of an information, or for which the accused may
additional fact which the other does not require, have been acquitted or convicted.
NEITHER conviction nor acquittal in one will bar a
prosecution for the other (Perez vs. CA, 163 OTHER NOTES:
SCRA 236). Warning against prosecution of several
offenses arising from a single act;
Examples (no double jeopardy): Only one criminal prosecution for single
1. Estafa and violation of BP 22 (P. vs. criminal intent;
Reyes, 228SCRA13); Single larcency test
2. Selling mortgage property (Act 1506) and Prohibition of filing from lowest to highest;
estafa for selling mortgaged property as
free from encumbrance (P. vs. Alvarez, SAME ACT PUNISHED BY LAW AND
45 Phil. 472); ORDINANCE.
3. Illegal fishing and illegal possession of
explosives (P vs. Acierto, 95 Phil. 865); The filing of a criminal case for violation of an
4. Alarm and scandal and discharge of ordinance prohibiting the unauthorized installation
firearm (P. vs. Doriquiez, 24 SCRA 164); of electrical devises intended to unlawfully lessen
5. Illegal possession and theft (P. vs. the electrical consumption, which was dismissed
Remerata, 98 Phil. 413); because of prescription, bars the filing of criminal
6. Illegal possession and carrying firearm case of theft under the RPC (P. vs. Relova, 148
outside residence without permit (P. vs. SCRA 304).
Bacani, 120 SCRA 271);
7. Consented abduction and qualified The rule of double jeopardy in reckless
seduction (Perez vs. CA, GR NO. 80838, imprudence cases.
Nov. 29, 1988).

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There is no complex crime where one offense is

light offense. They are separate offenses subject
to different penalties. Reckless imprudence Section 8. Provisional dismissal. — A case shall
resulting in slight physical injuries and reckless not be provisionally dismissed except with the
imprudence resulting to damage to property is not express consent of the accused and with notice to
complex crime and CANNOT be a subject of a the offended party.
single information. The two cases may however
be consolidated (Reodica vs. CA, reiterating The provisional dismissal of offenses punishable
Lontok vs. Gorgonio, 89 SCRA 632 [1979]). by imprisonment not exceeding six (6) years or a
fine of any amount, or both, shall become
NOTE: This ruling is already modified. There shall permanent one (1) year after issuance of the
be no splitting of charges and only one information order without the case having been revived. With
shall be filed in the same court (Ivler vs. Modesto- respect to offenses punishable by imprisonment of
San Pedro, 635 SCRA 191). more than six (6) years, their provisional
dismissal shall become permanent two (2) years
GR: Appeal by the prosecution is generally
after issuance of the order without the case having
prohibited (P. vs. Ang Cho Kio, 95 Phil. 475). been revived. (n)
Exceptions:
1. If dismissal is made upon motion, or with Bar Exam Question 2011
express consent of the accused; (2) A pending criminal case, dismissed
2. The dismissal is not an acquittal or based provisionally, shall be deemed permanently
upon consideration of the evidence or dismissed if not revived after 2 years with
merits of the case; respect to offenses punishable by
3. The question to be passed upon is purely imprisonment (A) of more than 12 years. (B)
legal one so that the dismissal if found to not exceeding 6 years or a fine not exceeding
be incorrect, the case would be remanded P1,000.00.
to the court of origin for further (C) of more than 6 years or a fine in excess of
proceedings (P. vs. Carandang, GR NO. P1,000.00. (D) of more than 6 years.
L-434659, Dec. 21, 1990).
Note: if no revival of the case within the
GR: Review on certiorari is likewise, generally prescribed period, the dismissal becomes
prohibited (P. vs. Velasco, GR NO. 127444, Sept. permanent.
13, 2000).
GR: Where the case is dismissed provisionally
Exception: there is want of jurisdiction or grave with the consent of the accused, he cannot invoke
abuse of discretion (P. vs. CA, 308 SCRA 687). double jeopardy in another prosecution therefor or
where the case is reinstated on a motion for
GR: No reopening of the case to modify judgment reconsideration by the prosecution
of the defendant (P. vs. Paet, 100 Phil. 357).
EXCEPTIONS: Where the dismissal was actually
Exception: Where the judgment made an acquittal based on:
reservation [mere continuation] (Lim vs. Oreta, 94 1. Lack or insufficiency of the evidence
Phil. 40). (Demurrer to Evidence);
2. Denial of the right to speedy trial, hence
Appeal by the offended party of the civil liability even if he accused gave his express
but does not allow that the accused be convicted consent to such dismissal or moved for
of a higher offense (Heirs of Tito Rillorta vs. Firme, such dismissal, such consent is
157 SCRA 518). immaterial as such dismissal is actually an
acquittal.
NOTE: Double jeopardy is available in contempt
proceedings, whether civil or criminal contempt,
because contempt is essentially criminal in nature Exception to the exception:
(Santiago vs. Asuncion, 184 SCRA 118 [1990]). Q. Can the trial court reconsider its order of
dismissal based on failure to prosecute (violation
Question of double jeopardy not reviewable by a of accused’s right to speedy trial) without violating
writ of habeas corpus because HC does not delve the accused’s right against double jeopardy?
into the question of jurisdiction. The remedy is to
complement certiorari with HC.

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Ans. Yes, if it appears that there was in fact no The accused gave his express consent to the
unreasonable, vexatious and oppressive delay in provisional dismissal of the case. The offended party
the proceedings. Hence, there was no reason to was notified of the dismissal but she refused to give
support the initial order of dismissal. It follows her consent.
then that accused cannot invoke his constitutional Subsequently, the private complainant urged the public
right against double jeopardy because accused’s prosecutor to refile the murder charge because the
right to speedy trial was not transgressed. accused failed to pay the consideration which he had
Moreover, the trial court’s order was upon motion promised for the execution of the Affidavit of
of accused’s counsel, hence, made with his Desistance. The public prosecutor obliged and refiled
express consent. That being the case, despite the the murder charge against the accused on 01 February
reconsideration of said order, double jeopardy did 2003, the accused filed a Motion to Quash the
not attach. (Almario vs CA, et al. L-127772, Information on the ground that the provisional
March 22, 2001). dismissal of the case had already become permanent.
(6%)
Additional Notes: a) Was the provisional dismissal of the case proper?
If the case is wrongfully dismissed, as long as the b) Resolve the Motion to Quash.
prosecution is not denied of its day in court, the SUGGESTED ANSWER:
case may not be appealed or disturbed by (a) The provisional dismissal of the case was proper
certiorari and mandamus. Double jeopardy sets in because the accused gave his express consent thereto
(P. vs. Lagui, 171 SCRA 305). and the offended party was notified. It was not
necessary for the offended party to give her consent
Q. The trial court (RTC) dismissed the case and thereto. (Sec. 8 of Rule 117).
denied the motion for reconsideration (MFR) filed (b) The motion to quash the information should be
by the prosecution. Upon petition for Certiorari denied because, while the provisional dismissal had
under Rule 65 filed by the prosecution with the already become permanent, the prescriptive period for
Court of Appeals, the latter nullified the RTC’s filing the murder charge had not prescribed. There was
order dismissing the case and directed the trial
no double jeopardy because the first case was
court to reinstate the case and continue the
dismissed before the accused had pleaded to the
proceedings. In the RTC, the accused raised the
charge. (Sec. 7 of Rule 117).
issue that to reinstate the case against him would
violate his constitutional right against double
Provisional Dismissal (2002)
jeopardy. Resolve. In a prosecution for robbery against D, the prosecutor
moved for the postponement of the first scheduled
Ans. Untenable. The trial court acted without
hearing on the ground that he had lost his records of
jurisdiction or with grave abuse of discretion in
the case. The court granted the motion but, when the
ordering the dismissal of the case and in denying
new date of trial arrived, the prosecutor, alleging that
the MFR filed by the prosecution. Hence, in
effect, the first jeopardy was never terminated and
he could not locate his witnesses, moved for the
the remand of the criminal case for further hearing provisional dismissal of the case. If D’s counsel does
and/or trial before the trial court amounts merely to not object, may the court grant the motion of the
a continuation of the first jeopardy, and does not prosecutor? Why? (3%)
SUGGESTED ANSWER:
expose the accused to a second jeopardy.
No, because a case cannot be provisionally dismissed
(People vs Tac-an, L-148000, Feb. 27, 2003, 398
except upon the express consent of the accused and
SCRA 373).
with notice to the offended party. (Rule 117, sec. 8).
No double jeopardy if there was no valid
promulgation of judgment.
Section 9. Failure to move to quash or to allege
Dismissal; Provisional Dismissal (2003) any ground therefor. — The failure of the
Before the arraignment for the crime of murder, the accused to assert any ground of a motion to
private complainant executed an Affidavit of quash before he pleads to the complaint or
Desistance stating that she was not sure if the accused information, either because he did not file a motion
was the man who killed her husband. The public to quash or failed to allege the same in said
prosecutor filed a Motion to Quash the Information motion, shall be deemed a waiver of any
on the ground that with private complainant’s objections except those based on the grounds
desistance, he did not have evidence sufficient to provided for in paragraphs (a), (b), (g), and (i) of
convict the accused. On 02 January 2001, the court section 3 of this Rule. (8)
without further proceedings granted the motion and
provisionally dismissed the case. Non-waivable grounds:

________________________________________________________________________________________________
1. Information does not charge an offense; (f) such other matters as will promote a fair
2. Lack of jurisdiction of the court; and expeditious trial of the criminal and civil
3. Extinction of the offense or penalty; aspects of the case. (secs. 2 and 3, cir. 38-98)
4. Double jeopardy.
Note: If the accused had pleaded not guilty to the
crime charged, he may state whether he
interposes a negative or affirmative defense. A
RULE 118 negative defense shall require the prosecution to
prove the guilt of the accused beyond reasonable
Pre-Trial doubt, while an affirmative defense may modify
the order of trial and require the accused to prove
such defense by clear and convincing evidence
IMPORTANCE OF PRE-TRIAL (sec. 3 Circular 38-98).[Sec. 7, par. 2, Speedy
1. It covers not only that period technically Trial Act]
defined in Rule 118 but also that period
from filing of the information up to the NOTE: This disclosure order runs counter to the
actual conduct of trial; right of the accused to be presumed innocent and
2. It encompasses many legal remedies the burden of proof (sec. 14, art. lll, 1987
such as the filing of a motion to quash Constitution).
(Rule 117), motion to suppress evidence
(Rule 126, sec. 14), motion for the It would result in absurdity where the accused
determination of probable cause (Rule pleads “not guilty” but may be required to prove
126); his innocence if he interposes “an affirmative
3. It is that period when accused may invoke defense.”
the presumption of innocence and be
assured that he need not say or do
anything else (old rule was that pre-trial is
at the option of the accused). PRE-TRIAL IN CIVIL PRE-TRIAL IN
CASES CRIMINAL CASES
Section 1. Pre-trial; mandatory in criminal The presence of the The accused is merely
cases. — In all criminal cases cognizable by the defendant is required, required to sign the
Sandiganbayan, Regional Trial Court, unless he is duly written agreement
Metropolitan Trial Court, Municipal Trial Court in represented at the pre- arrived at in the pre-trial
Cities, Municipal Trial Court and Municipal Circuit trial conference by his conference, if he is in
Trial Court, the court shall after arraignment and counsel with the conformity with it.
within thirty (30) days from the date the court requisite authority to Unless otherwise
acquires jurisdiction over the person of the enter into a required by the court,
accused, unless a shorter period is provided for in compromise his presence therefore
special laws or circulars of the Supreme Court, agreement, failing in is not indispensable.
order a pre-trial conference to consider the either of which the case NOTE: This is aside
following: will proceed as if the from the consideration
defendant has been that the accused may
(a) plea bargaining; declared in default waive the right to be
present at any stage of
(b) stipulation of facts; the proceeding except
at arraignment,
promulgation of
(c) marking for identification of evidence of the
judgment, or required
parties;
by the court for
purposes of
(d) waiver of objections to admissibility of identification.
evidence; The presence of the The presence of the
plaintiff is required at private offended party is
(e) modification of the order of trial if the the pre-trial unless not required at the pre-
accused admits the charge but interposes a excused therefrom for trial. Instead, he is
lawful defense; and valid reasons or if he is required to appear at
represented by a the arraignment of the
person fully authorized accused for the
in writing to perform the purposes of plea

________________________________________________________________________________________________
acts specified in sec. 4, bargaining, caused by Atty. OP, he was substituted by Atty. QR as
Rule 18. determination of civil defense counsel. Atty. QR forthwith filed a motion to
Absent such liability, and other withdraw the "Joint Stipulation," alleging that it is
justification, the case matters requiring is prejudicial to the accused because it contains, inter alia,
may be dismissed with presence. the statement that the "Defense admitted all the
or with out prejudice. Should he fail to appear documentary evidence of the Prosecution," thus
therein, and the leaving the accused little or no room to defend
accused offers to plead himself, and violating his right against self-
to a lesser offense incrimination. Should the court grant or deny QR's
necessarily included in motion? Reason. (5%)
the offense charged, he SUGGESTED ANSWER:
may be allowed to do The court should deny QR's motion. If in the pretrial
so with the conformity agreement signed by the accused and his counsel, the
of the prosecutor alone. accused admits the documentary evidence of the
A pre-trial brief is No pre-trial brief but prosecution, it does not violate his right against self-
required with the only requires the incrimination. His lawyer cannot file a motion to
particulars and the attendance at the pre- withdraw. A pre-trial order is not needed. (Bayas v.
sanctions provided by trial conference to Sandiganbayan, 391 SCRA 415(2002}). The
sec. 6, Rule 18 consider matters stated admission of such documentary evidence is allowed by
in sec. 2 Rule 118 the rule. (Sec. 2 of Rule 118; People v. Hernandez,
260 SCRA 25 [1996]).
Pre-Trial; Criminal Case vs. Civil Case (1997)
Give three distinctions between a pre-trial in a criminal
case and a pre-trial in a civil case. SUGGESTED NOTE: Admissions deemed waiver of the right of
ANSWER: confrontation. The admission of the accused that
Three distinctions between a pre-trial in a criminal case the witness, if present, would testify to certain
and a pre-trial in a civil case are as follows: matters stated in the affidavit of the prosecution
1. The pre-trial in a criminal case is conducted only (US vs. Anastacio, 6 Phil. 413).
"where the accused and counsel agree" (Rule 118, Sec. 1):
while the pre-trial in a civil case is mandatory. (Sec. 1 of Admissions also would result to [deemed] waiver
former Rule 20; Sec, 1 of new Rule 18). of the right to present evidence on his behalf (P.
2. The pre-trial in a criminal case does not consider the vs. Dichoso, 96 SCRA 957).
possibility of a compromise, which is one important
aspect of the pre-trial in a civil case. (Sec. 1 of former Rule Note: stipulations of facts during trial need not be
20; Sec. 2 of new Rule 18). in writing. They are already contained in the TSN.
3. In a criminal case, a pre-trial agreement is required
to be reduced to writing and signed by the accused and GR: The admissions of the counsel during (in the
his counsel (See; Rule 118, Sec. 4); while in a civil case, the course of) trial, as a general rule binds the client
agreement may be contained in the pretrial order. (Sec. 4 and need not be in writing (P. vs. Ravelo, 202
of former Rule 20; See 7 of new Rule 78). SCRA 655).
Section 2. Pre-trial agreement. — All agreements EXCEPTION: When the mistake of the lawyer
or admissions made or entered during the pre-trial would result in serious injustice [prejudicial to the
conference shall be reduced in writing and signed substantial rights] to the client (Villa Rheccar Bus
by the accused and counsel, otherwise, they vs. De La Cruz, 157 SCRA13).
cannot be used against the accused. The
agreements covering the matters referred to in The agreements referred to in this section is
section 1 of this Rule shall be approved by the subject to the approval of the court; Provided, That
court. (sec. 4, cir. 38-98) that agreement on the plea of the accused to a
lesser offense may only be revised, modified, or
Pre-Trial Agreement (2004) annulled by the court when the same is contrary
Mayor TM was charged of malversation through to law, public morals, or public policy (sec. 3,
falsification of official documents. Assisted by Atty. Speedy Trial Act of 1998).
OP as counsel de parte during pre-trial, he signed
together with Ombudsman Prosecutor TG a "Joint Plea to a lesser offense must be for an offense
Stipulation of Facts and Documents," which was which is necessarily included in the offense
presented to the Sandiganbayan. Before the court charged (sec. 4 Circular 38-98).
could issue a pre-trial order but after some delay

________________________________________________________________________________________________
Note: No plea bargaining in cases under RA parties, limit the trial to matters not disposed of,
9165, sec. 23. and control the course of the action during the
trial, unless modified by the court to prevent
REQUISITES before the pre-trial agreement can manifest injustice. (3)
be used as evidence:
1. They are reduced to writing; NOTE: Thereafter, where a plea of not guilty is
2. The pre-trial agreement is signed by the entered, the accused shall have at least 15 days
accused and his counsel. to prepare for trial which shall commence within
30 days from receipt of the pre-trial order (sec.
The requirement in sec. 2 is intended to safeguard 6,Circ. 38-98).
the right of the accused against improvident or
unauthorized agreements or admissions, which
his counsel may have entered into, or which any
person may ascribed to the accused without his
knowledge, as he may have waived his presence
at the pre-trial conference. RULE 119
The omission of signature of the accused and his Trial

counsel, as mandatorily required, renders the
stipulation of facts inadmissible in evidence (P. vs. TRIAL
Marollano, 276 SCRA 84 [1997]). The examination before a competent tribunal
according to the laws of the land, of the facts put
Section 3. Non-appearance at pre-trial in issue in a case for the purpose of determining
conference. — If the counsel for the accused or such issue.
the prosecutor does not appear at the pre-trial
conference and does not offer an acceptable Section 1. Time to prepare for trial. — After a
excuse for his lack of cooperation, the court may plea of not guilty is entered, the accused shall
impose proper sanctions or penalties. (se. 5, cir. have at least fifteen (15) days to prepare for trial.
38-98) The trial shall commence within thirty (30) days
from receipt of the pre-trial order. (sec. 6, cir. 38-
Note: the sanctions or penalty may be in the form 98)
of reprimand, fine or imprisonment. Inasmuch as
this is similar to indirect contempt of court, the Note: Denial of the right to prepare for trial is a
penalty for indirect contempt may be imposed. reversible error. A trial without opportunity to
prepare for it, when granted by law whose terms
The accused is not the one compelled to appear, are mandatory and imperative, is no trial at all
but only the counsel of the accused or the (Montilla vs. Arellano).
prosecutor. The principal reason why accused is
not included in the mandatory appearance is the Bar Exam Question 2012
fear that to induce him is to violate his 41. After a plea of not guilty is entered, the
constitutional right to remain silent. accused shall have _____ days to prepare for
trial.
Bar Exam Question 2011 a. 15;
(60) What is the consequence of the b. 10;
unjustified absence of the defendant at the c. 30;
pre-trial? (A) The trial court shall declare him d. None of the above.
as in default. (B) The trial court shall SUGGESTED ANSWER: (a), After a plea of
immediately render judgment against him. not guilty is entered, the accused shall
(C) The trial court shall allow the plaintiff have at least fifteen (15) days to prepare
to present evidence ex-parte. (D) The trial for trial. The trial shall commence within
court shall expunge his answer from the (30) days from receipt of the pre-trial
record. order. (Rule 119, Sec. 1, Rules of Court).
Section 4. Pre-trial order. — After the pre-trial Section 2. Continuous trial until terminated;
conference, the court shall issue an order reciting postponements. — Trial once commenced shall
the actions taken, the facts stipulated, and continue from day to day as far as practicable until
evidence marked. Such order shall bind the

________________________________________________________________________________________________
terminated. It may be postponed for a reasonable of the trial of a defendant against his protest
period of time for good cause. (2a) beyond a reasonable period of time:
1. Mandamus to compel dismissal of the
The court shall, after consultation with the action;
prosecutor and defense counsel, set the case for 2. If he is restrained of his liberty, Habeas
continuous trial on a weekly or other short-term Corpus to obtain his freedom.
trial calendar at the earliest possible time so as to
ensure speedy trial. In no case shall the entire trial The SC adopted continuous trial system as a
period exceed one hundred eighty (180) days mode of judicial fact finding and adjudication
from the first day of trial, except as otherwise conducted with speed and dispatch so that trials
authorized by the Supreme Court. (sec. 8, cir. 38- are held on the scheduled dates without
98). postponement, the factual issues for trial well-
defined at pre-trial and the whole proceedings
terminated and ready for judgment within 90 days
The time limitations provided under this section
from date of initial hearing, unless for meritorious
and the preceding section shall not apply where
reasons an extension is permitted.
special laws or circulars of the Supreme Court
provide for a shorter period of trial. (n)
The system requires that the Presiding Judge:
1. Adhere faithfully to the session hours
EXAMPLE CASES WHERE TIME LIMIT NOT prescribed by laws;
APPLICABLE 2. Maintain full control of the proceedings;
and
1. RA 7610—Trial shall commence within 3 3. Effectively allocate and use time and court
days from arraignment; resources to avoid court delays.
The non-appearance of the prosecution at the
2. RA 4908—Complainant is about to depart trial, despite due notice, justified a provisional or
from the Philippines without definite date an absolute dismissal depending upon the
of return; accused should be arraigned circumstances.
without delay and trial should commence
within 3 days.
Section 3. Exclusions. — The following periods of
No postponement except sickness of the
delay shall be excluded in computing the time
accused or other grounds beyond the
within which trial must commence:
court’s control;
(a) Any period of delay resulting from other

3. Criminal cases covered by the Rules on
proceedings concerning the accused, including
Summary Procedure where the penalty
but not limited to the following:
imposable does not exceed 6 months
imprisonment or a fine of 1,000.00 pesos,
or both; (1) Delay resulting from an examination of
4. Administrative Order No. 104-96; the physical and mental condition of the
5. General Order No. 39, Sept. 19, 1973, accused;
cases involving tourist or transients must
be disposed within 24 hours after filing (2) Delay resulting from proceedings with
thereof. respect to other criminal charges against
the accused;
REQUISITES before a trial can be put-off on
account of absence of witness: (3) Delay resulting from extraordinary
1. The witness is material and appears to be remedies against interlocutory orders;
such to the court;
2. That the party who applies is not guilty of (4) Delay resulting from pre-trial
neglect; proceedings; provided, that the delay
3. That the witness can be had at the time to does not exceed thirty (30) days;
which the trial is deferred;
4. No similar evidence could be obtained;
5. That an affidavit showing the existence of (5) Delay resulting from orders of
the above circumstances must be filed. inhibition, or proceedings relating to
change of venue of cases or transfer from
Remedies of the accused where a prosecuting other courts;
officer without good cause secure postponements

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(6) Delay resulting from a finding of the impossible or result in a miscarriage of justice;
existence of a prejudicial question; and and
(7) Delay reasonably attributable to any (b) Whether or not the case taken as a whole
period, not exceed thirty (30) days, during is so novel, unusual and complex, due to the
which any proceeding which any number of accused or the nature of the
proceeding concerning the accused is prosecution, or that it is unreasonable to
actually under advisement. expect adequate preparation within the
periods of time established therein.
(b) Any period of delay resulting from the absence
or unavailability of an essential witness. In addition, no continuance under section 3(f) of
this Rule shall be granted because of congestion
For purposes of this subparagraph, an essential of the court's calendar or lack of diligent
witness shall be considered absent when his preparation or failure to obtain available witnesses
whereabouts are unknown or his whereabouts on the part of the prosecutor. (sec. 10, cir. 38-98)
cannot be determined by due diligence. He shall
be considered unavailable whenever his Notes:
whereabouts are known but his presence for trial Grant of postponement subject to the
cannot be obtained by due diligence. sound discretion of the court;
The lawyer should not presumed that his
(c) Any period of delay resulting from the mental request for postponement will be granted
incompetence or physical inability of the accused by the court.
to stand trial.
Section 5. Time limit following an order for new
(d) If the information is dismissed upon motion of trial. — If the accused is to be tried again
the prosecution and thereafter a charge is filed pursuant to an order for a new trial, the trial shall
against the accused for the same offense, any commence within thirty (30) days from notice of
period of delay from the date the charge was the order, provided that if the period becomes
dismissed to the date the time limitation would impractical due to unavailability of witnesses and
commence to run as to the subsequent charge other factors, the court may extend it but not to
had there been no previous charge. exceed one hundred eighty (180) days from
notice of said order for a new trial. (sec. 11, cir.
(e) A reasonable period of delay when the 38-98)
accused is joined for trial with a co-accused over
whom the court has not acquired jurisdiction, or, Section 6. Extended time limit. —
as to whom the time for trial has not run and no Notwithstanding the provisions of section 1(g),
motion for separate trial has been granted. Rule 116 and the preceding section 1, for the first
twelve-calendar-month period following its
(f) Any period of delay resulting from a effectivity on September 15, 1998, the time limit
continuance granted by any court motu proprio, or with respect to the period from arraignment to trial
on motion of either the accused or his counsel, or imposed by said provision shall be one hundred
the prosecution, if the court granted the eighty (180) days. For the second twelve-month
continuance on the basis of its findings set forth in period, the limit shall be one hundred twenty (120)
the order that the ends of justice served by taking days, and for the third twelve-month period, the
such action outweigh the best interest of the public time limit shall be eighty (80) days. (sec. 7, cir. 38-
and the accused in a speedy trial. (sec. 9, cir. 38- 98)
98)
Note: This is now obsolete (Ucat).
Section 4. Factors for granting continuance. —
The following factors, among others, shall be Section 7. Public attorney's duties where
considered by a court in determining whether to accused is imprisoned. — If the public attorney
grant a continuance under section 3(f) of this Rule. assigned to defend a person charged with a crime
knows that the latter is preventively detained,
(a) Whether or not the failure to grant a either because he is charged with a bailable crime
continuance in the proceeding would likely but has no means to post bail, or, is charged with
make a continuation of such proceeding a non-bailable crime, or, is serving a term of

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imprisonment in any penal institution, it shall be hereof, the court may punish such counsel,
his duty to do the following: attorney, or prosecution, as follows:
(a) Shall promptly undertake to obtain the (1) By imposing on a counsel privately
presence of the prisoner for trial or cause retained in connection with the defense of
a notice to be served on the person an accused, a fine not exceeding twenty
having custody of the prisoner requiring thousand pesos (P20,000.00);
such person to so advise the prisoner of
his right to demand trial. (2) By imposing on any appointed counsel
de oficio, public attorney, or prosecutor a
(b) Upon receipt of that notice, the fine not exceeding five thousand pesos
custodian of the prisoner shall promptly (P5,000.00); and
advise the prisoner of the charge and of
his right to demand trial. If at anytime (3) By denying any defense counsel or
thereafter the prisoner informs his prosecutor the right to practice before the
custodian that he demands such trial, the court trying the case for a period not
latter shall cause notice to that effect to exceeding thirty (30) days. The
sent promptly to the public attorney. punishment provided for by this section
shall be without prejudice to any
(c) Upon receipt of such notice, the public appropriate criminal action or other
attorney shall promptly seek to obtain the sanction authorized under these rules.
presence of the prisoner for trial. (sec. 13, cir. 38-98)
(d) When the custodian of the prisoner Section 9. Remedy where accused is not
receives from the public attorney a brought to trial within the time limit. — If the
properly supported request for the accused is not brought to trial within the time limit
availability of the prisoner for purposes of required by Section 1(g), Rule 116 and Section 1,
trial, the prisoner shall be made available as extended by Section 6 of this rule, the
accordingly. (sec. 12, cir. 38-98) information may be dismissed on motion of the
accused on the ground of denial of his right of
NOTE: Public Attorneys referred to in this section speedy trial. The accused shall have the burden of
are those attorneys of the PAO of the Department proving the motion but the prosecution shall have
of Justice who are assisting the accused not the burden of going forward with the evidence to
financially capable to have counsel of their own. establish the exclusion of time under section 3 of
These public attorneys enter their appearance in this rule. The dismissal shall be subject to the
behalf of the accused upon his request or that of rules on double jeopardy.
his relative or upon being appointed as counsel de
oficio by the court. Failure of the accused to move for dismissal prior
to trial shall constitute a waiver of the right to
Section 8. Sanctions. — In any case in which dismiss under this section. (sec. 14, cir. 38-98)
private counsel for the accused, the public
attorney, or the prosecutor. Trial; Remedies (2013)
No.IV. At the Public Attorney's Office station
(a) Knowingly allows the case to be set for in Taguig where you are assigned, your work
trial without disclosing that a necessary requires you to act as public defender at the
witness would be unavailable for trial; local Regional Trial Court and to handle
cases involving indigents.
(b) Files a motion solely for delay which he (A) In one criminal action for qualified theft
knows is totally frivolous and without merit; where you are the defense attorney, you
learned that the woman accused has been in
detention for six months, yet she has not
(c) Makes a statement for the purpose of
been to a courtroom nor seen a judge. What
obtaining continuance which he knows to be
remedy would you undertake to address the
false and which is material to the granting of a
continuance; or situation and what forum would you use to
invoke this relief? (3%)
SUGGESTED ANSWER: Section 7, Rule 119
(d) Willfully fails to proceed to trial without provides, if the public attorney assigned
justification consistent with the provisions

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to defend a person charged with a crime in the conduct of the arraignment of

knows that the latter is preventively petitioner, he has indeed the right to
detained, either because he is charged demand – through a writ of mandamus –
with a bailable crime but has no means to expeditious action from all official tasked
post bail, or, is charged with a non- with the administration of justice. Thus,
bailable crime, or, is serving a term of he may not only demand that his
imprisonment in any penal institution, it arraignment be held but, ultimately, that
shall be his duty to do the following: (a) the information against him be dismissed
Shall promptly undertake to obtain the on the ground of the violation of his right
presence of the prisoner for trial or cause to speedy trial.” Ergo, a writ of mandamus
a notice to be served on the person having is available to the accused to compel the
custody of the prisoner requiring such dismissal of the case.
person to so advise the prisoner of his
right to demand trial. ALTERNATIVE ANSWER: The appropriate
(b) Upon receipt of that notice, the remedy of the detained accused is to
custodian of the prisoner shall promptly apply for bail since qualified theft is
advise the prisoner of the charge and of bailable, and she is entitled to bail before
his right to demand trial. If at any time conviction in the Regional Trial Court
thereafter the prisoner informs his (Section 4, Rule 114 of the Rules of
custodian that he demands such trial, the Criminal Procedure). [Note: unless the
latter shall cause notice to that effect to aggregate value of the property stolen is
be sent promptly to the public attorney. P500,000 and the above she will not be
Xxx Moreover, Section 1 (e), Rule 116 entitled to bail as a matter of right,
provides, when the accused is under because the penalty for the offense is
preventive detention, his case shall be reclusion perpetua pursuant to
raffled and its records transmitted to the Memorandum Order No. 117
judge to whom the case was raffled within
the three (3) days from the filing of the (B) In another case, also for qualified theft,
information or complaint. The accused the detained young domestic helper has been
shall be arraigned within ten (10) days brought to court five times in the last six
from the date of the raffle. The pre-trial months, but the prosecution has yet to
conference of his case shall be held within commence the presentation of its evidence.
ten (10) days after the arraignment. On You find that the reason for this is the
the other hand, if the accused is not continued absence of the employer-
under preventive detention, the complainant who is working overseas. What
arraignment shall be held within thirty remedy is appropriate and before which
(30) days from the date the court acquires forum would you invoke this relief? (3%)
jurisdiction over the person of the SUGGESTED ANSWER:
accused. (Section 1 (g), Rule 116). I will file a motion to dismiss the
Since the accused has not been brought information in the court where the case is
for arraignment within the limit required pending on the ground of denial of the
in the aforementioned Rule, the accused right to speedy trial (Section 9,
Information may be dismissed upon Rule 119; Tan vs. People, G.R. No.
motion of the accused invoking his right 173637, April 21, 2009, Third Division,
to speedy trial (Section 9, Rule 119( or to Chico-Nazario, J.). this remedy can be
a speedy disposition of cases (Section 16, invoked, at any time, before trial and if
Article III, 1987 Constitution). granted will result to an acquittal. Since
the accused has been brought to Court
ALTERNATIVE ANSWER: A Petition for five times and in each instance it was
Mandamus is also feasible. In People vs. postponed, it is clear that her right to a
Lumanlaw, G.R. No. 164953, February 13, Speedy Trial has been violated. Moreover,
2006, the Supreme Court held that “a writ I may request the court to issue Subpoena
of mandamus may be issued to control the Duces Tecum and Ad Testificandum to the
exercise of discretion when, in the witness, so in case he disobeys same, he
performance of duty, there is undue delay may be cited in contempt. I may also file a
that can be characterized as a grave abuse motion to order the witness employer-
of discretion resulting in manifest complainant to post bail to secure his
injustice. Due to the unwarranted delays

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appearance in court. (Section 14, Rule application for bail is an appropriate

119). remedy to secure provisional liberty of the
ALTERNATIVE ANSWER: I will move for 14-year old boy. Under the Rules, bail is a
the dismissal of the case for failure to matter of right before or even after
prosecute. The grant of the motion will be conviction before the Metropolitan Trial
with prejudice unless the court says Court which has jurisdiction over the
otherwise. The Motion will be filed with crime of malicious mischief. (Section 4,
the Court where the action is pending. Rule 114 of the Rules of Criminal
Procedure). ALTERNATIVE ANSWER:
C) Still in another case, this time for illegal Under R.A. 9344 or otherwise known as
possession of dangerous drugs, the the Juvenile Justice and Welfare Act of
prosecution has rested but you saw from the 2006 as amended by R.A. 10630, a child
records that the illegal substance allegedly in conflict with the law has the right to
involved has not been identified by any of the bail and recognizance or to be transferred
prosecution witnesses nor has it been the to a youth detention home/youth
subject of any stipulation. rehabilitation center. Thus:
Should you now proceed posthaste to the
presentation of defense evidence or consider There a child is detained, the court shall
some other remedy? Explain the remedial order: (a) the release of the minor on
steps you propose to undertake. (3%) recognizance to his/her parents and other
SUGGESTED ANSWER: No. I will not suitable person; (b) the release of the child
proceed with the presentation of defense in conflict with the law on bail; or (c) the
evidence. I will first file a motion for leave transfer of the minor to a youth detention
to file demurrer to evidence within five (5) home/youth rehabilitation center. The
days from the time the prosecution has court shall not order the detention of a
rested its case. If the Motion is granted, I child in a jail pending trial or hearing of
will file a demurrer to evidence within a his case. The writ of habeas corpus shall
non-extendible period of ten (10) days extend to all cases of illegal confinement
from notice on the ground of insufficiency or detention by which any person is
of evidence. In the alternative, I may deprived of his liberty, or by which the
immediately file a demurrer to evidence rightful custody of any person is withheld
without leave of court (Section 23, Rule from the person entitled thereto (IN THE
119, Rules of Criminal Procedure). In MATTER OF THE PETITION OF HABEAS
People vs. De Guzman, G.R. No. 186498, CORPUS OF EUFEMIA E. RODRIGUEZ,
March 26, 2010, the Supreme Court held filed by EDGARDO E. VELUZ vs. LUISA R.
that in a prosecution for violation of the VILLANUEVA and TERESITA R. PABELLO,
Dangerous Drugs Act, the existence of the G.R. No. 169482, January 29, 2008,
dangerous drugs is a condition sine qua CORONA, J.).
non for conviction. The dangerous drug is Since minors fifteen (15) years of age and
the very corpus delicti of the crime. under are not criminally responsible, the
Similarly, in People vs. Sitco, G.R. No. child may not be detained to answer for
178202, May 14, 2010, the High Court the alleged offense. The arresting
held that in prosecutions involving authority has the duty to immediately
narcotics and other illegal substances, the release the child to the custody of his
substance itself constitutes part of the parents or guardians or in their absence to
corpus delicti of the offense and the fact the child‟s nearest relative (Section 20,
of its existence is vital to sustain a republic Act 9344).
judgment of conviction beyond reasonable
doubt. Following the hierarchy of courts, the
Petition must be filed in the Regional trial
(D) In one other case, an indigent mother Court having jurisdiction over the place
seeks assistance for her 14-year old son who where the child is being detained.
has been arrested and detained for malicious [Note: R.A. 9344 is not covered by the
mischief. Would an application for bail be the 2013 Bar Examination Syllabus for
appropriate remedy or is there another Remedial law].
remedy available? Justify your chosen
remedy and outline the appropriate steps to Section 10. Law on speedy trial not a bar to
take. (3%) SUGGESTED ANSWER: Yes. An provision on speedy trial in the Constitution.

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— No provision of law on speedy trial and no rule REVERSE TRIAL

implementing the same shall be interpreted as a When the accused admits the act or omission
bar to any charge of denial of the right to speedy charged in the complaint or information but
trial guaranteed by section 14(2), article III, of the interposes a lawful defense, the trial court may
1987 Constitution. (sec. 15, cir. 38-98) allow the accused to present his defense first and
thereafter give the prosecution the opportunity to
Section 11. Order of trial. — The trial shall present its rebuttal evidence.
proceed in the following order:
Refusal of the trial court to reverse the order of the
trial upon demand of the accused who pleads self-
(a) The prosecution shall present evidence to
defense as a defense is not reversible error (P. vs.
prove the charge and, in the proper case, the
Gutierrez, 302 SCRA 643).
civil liability.
Note: Trial of an accessory can proceed without
(b) The accused may present evidence to awaiting the result of separate charge against the
prove his defense, and damages, if any, principal as long as the commission of the offense
arising from the issuance of a provisional can be duly established in evidence (Vino vs. P.
remedy in the case. 178 SCRA 626 [1989]).
(c) The prosecution and the defense may, in Trial; Reverse Trial (2007) No.V. (b) What is
that order, present rebuttal and sur-rebuttal reverse trial and when may it be resorted to?
evidence unless the court, in furtherance of Explain briefly. (5%) SUGGESTED ANSWER:
justice, permits them to present additional A reverse trial is one where the defendant
evidence bearing upon the main issue. or the accused present evidence ahead of
the plaintiff or prosecution and the latter
(d) Upon admission of the evidence of the is to present evidence by way of rebuttal
parties, the case shall be deemed submitted to the former‟s evidence. This kind of
for decision unless the court directs them to trial may take place in a civil case when
argue orally or to submit written memoranda. the defendant‟s Answer pleads new
matters by way of affirmative defense, to
(e) When the accused admits the act or defeat or evade liability for plaintiff‟s
omission charged in the complaint or claim which is not denied but
information but interposes a lawful defense, controverted.
the order of trial may be modified. (3a) In a criminal case, a reverse trial may take
place when the accused made known to
GR: The order in the presentation of evidence the trial court, on arraignment, that he
must be followed. The accused may not be adduce affirmative defense of a justifying
required to present his evidence first before the or exempting circumstances and thus
prosecution adduces its own proof. impliedly admitting the act imputed to
him. The trial court may then require the
EXCEPTION: Where the reverse procedure was accused to present evidence first, proving
adopted without the objection of the defendant the requisites of the justifying or
and such procedure did not prejudice his exempting circumstance he is invoking,
substantial rights, the defect is not a reversible and the prosecution to present rebuttal
error. evidence controverting the same.
A departure from the order of the trial is not

reversible error as where it was agreed upon or Section 12. Application for examination of
not seasonably objected to, but not where the witness for accused before trial. — When the
change in the order of the trial was timely objected accused has been held to answer for an offense,
by the defense. he may, upon motion with notice to the other
parties, have witnesses conditionally examined in
Where the order of trial set forth under was not his behalf.
followed by the court to the extent of denying the
prosecution of an opportunity to present its
The motion shall state:
evidence, the judgment is a nullity (P. vs.
(a) the name and residence of the witness;
Balisacan, 17 SCRA 1119).
(b) the substance of his testimony; and

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(c) that the witness is sick or infirm as to afford testify when required, it may, upon motion of either
reasonable ground for believing that he will party, order the witness to post bail in such sum
not be able to attend the trial, or resides more as may be deemed proper. Upon refusal to post
than one hundred (100) kilometers from the bail, the court shall commit him to prison until he
place of trial and has no means to attend the complies or is legally discharged after his
same, or that other similar circumstances exist testimony has been taken. (6a)
that would make him unavailable or prevent
him from attending the trial. Note: Even if the witness has been cited to
appear before a court sitting outside of the
The motion shall be supported by an affidavit of province in which he resides and the distance is
the accused and such other evidence as the court more than (50) now 100 km from his place of
may require. (4a) residence by usual course of travel, he is still
bound by the subpoena. Rule 23 applies only in
Section 13. Examination of defense witness; civil cases (P. vs. Montejo, 21 SCRA 722).
how made. — If the court is satisfied that the
examination of a witness for the accused is Connect to: sec. 14, Rule 110.
necessary, an order will be made directing that the
witness be examined at a specified date, time and Section 15. Examination of witness for the
place and that a copy of the order be served on prosecution. — When it satisfactorily appears
the prosecutor at least three (3) days before the that a witness for the prosecution is too sick or
scheduled examination. The examination shall be infirm to appear at the trial as directed by the order
taken before a judge, or, if not practicable, a of the court, or has to leave the Philippines with no
member of the Bar in good standing so designated definite date of returning, he may forthwith be
by the judge in the order, or if the order be made conditionally examined before the court where the
by a court of superior jurisdiction, before an case is pending. Such examination, in the
inferior court to be designated therein. The presence of the accused, or in his absence after
examination shall proceed notwithstanding the reasonable notice to attend the examination has
absence of the prosecutor provided he was duly been served on him, shall be conducted in the
notified of the hearing. A written record of the same manner as an examination at the trial.
testimony shall be taken. (5a) Failure or refusal of the accused to attend the
examination after notice shall be considered a
Discovery; Production and Inspection (2009) No.XI.A. waiver. The statement taken may be admitted in
The accused in a criminal case has the right to avail of behalf of or against the accused. (7a)
the various modes of discovery. SUGGESTED ANSWER:
TRUE. The accused has the right to move for the EXAMINATION OF EXAMINATION OF
production or inspection of material evidence in the DEFENSE WITNESS PROSECUTION
possession of the prosecution. It authorizes the WITNESS
defense to inspect, copy or photograph any evidence Conducted before any Conducted only before
of the prosecution in its possession after obtaining judge, member of the the judge or the court
permission from the court (Rule 116, Sec. 10; Webb bar in good standing, or where the case is
vs. De Leon, 247 SCRA 652 [1995]). ALTERNATIVE before any inferior court pending
ANSWER: FALSE. The accused in criminal case only No right to cross- There is right to cross-
has the right to avail of conditional examination of examine examine
his witness before a judge, or, if not practicable, a May be made if the Cannot be made even if
witness resides more the witness resides
member of a Bar in good standing so designated by
than 100 km from place more than 100 km from
the judge in the order, or if the order be made by a
of trial the place of trial
court of superior jurisdiction, before an inferior court
to be designated therein. (sec.12 &13, Rule 119). Note: Distance is not a valid ground to grant
Modes of discovery under civil actions does not apply conditional examination of prosecution witness.
to criminal proceedings because the latter is primarily The reason is the primacy of the right of the
governed by the REVISED RULES OF CRIMINAL accused to confront his accuser and his
PROCEDURE (Vda. de Manguerravs Risos – 563 SCRA witnesses.
499).
Section 14. Bail to secure appearance of Section 16. Trial of several accused. — When
material witness. — When the court is satisfied, two or more accused are jointly charged with any
upon proof or oath, that a material witness will not offense, they shall be tried jointly unless the court,

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in its discretion and upon motion of the prosecutor (a) There is absolute necessity for the
or any accused, orders separate trial for one or testimony of the accused whose
more accused. (8a) discharge is requested;
Notes: The motion for a SEPARATE trial must be (b) The is no other direct evidence
filed BEFORE the commencement of the trial and available for the proper prosecution of the
cannot be raised for the first time on appeal. If a offense committed, except the testimony
separate trial is granted, the testimony of one of of said accused;
the accused imputing the crime to his co-accused
is not admissible against the latter. In joint trial, it (c) The testimony of said accused can be
would be admissible if the latter had opportunity substantially corroborated in its material
for cross-examination. points;
Exception: In the interest of justice, it can be (d) Said accused does not appear to be
allowed even after prosecution had rested its case the most guilty; and
(Joseph vs. Villaluz, 89 SCRA 324).
JOINT TRIAL IN THE SANDIGANBAYAN (e) Said accused has not at any time
Private individuals charged as co-principals, been convicted of any offense involving
accomplices, or accessories shall be tried jointly moral turpitude.
with public officers before the proper court.
Evidence adduced in support of the discharge
However, if the public officer is the one charged as shall automatically form part of the trial. If the court
accomplice or accessory, the jurisdiction is with denies the motion for discharge of the accused as
the regular courts. Accessory follows the principal state witness, his sworn statement shall be
(Totaan vs. Felix, GR NO. 81847-48, April 7, inadmissible in evidence. (9a)
1988).
Notes:
If the circumstances made it impossible for joint
trial as in the case when the trial of the public Absolute necessity of testimony (P. vs. Borja, 106
offenders have been concluded, the trial of the Phil. 1111)
private offenders shall proceed independently Absolute certainty of the testimony is not required
(Bondoc vs. Sandiganbayan, 191 SCRA 254). (P. vs. CA, 124 SCRA 328).
Separate trial is discretionary; denial is justified All requisites must be complied with. Trial type
when accused is not substantially prejudiced (P. hearing on the motion is not required (P. vs. CA,
vs. Go, 88 Phil. 203). 223 SCRA 479).
GR: When separate trial is granted, prosecutor Additional requisites for discharge:
should repeat and produce all evidence at each 1. The court should require the presentation
and every trial. of evidence and the sworn statement of
the proposed witness;
Exception: If agreed by the parties not to repeat 2. Sworn statement containing the
presentation and all the accused are present an requirements in sec. 17, Rule 119.
had opportunity for cross-examination (P. vs.
Carpio, 68 Phil. 490). The motion need not allege that all the requisites
are complied with BUT the requisites must be
Section 17. Discharge of accused to be state proved during the hearing of the motion (Chua vs.
witness. — When two or more persons are jointly CA, GR NO. 103397, Aug. 28, 1996).
charged with the commission of any offense, upon
motion of the prosecution before resting its case, Absence of any of the requisites for the discharge
the court may direct one or more of the accused to of a particeps criminis is a ground for objection for
be discharged with their consent so that they may his discharge, but such objection must be raised
be witnesses for the state when, after requiring the before the discharge is ordered (P. vs. Ferrer, GR
prosecution to present evidence and the sworn NO. 102012, March 14, 1996).
statement of each proposed state witness at a
hearing in support of the discharge, the court is Absolute certainty of all the requirements is not
satisfied that: necessary (P. vs. Padica, GR NO. 102645, April 7,
1993).

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witness at a hearing in support of the

More than one accused may be discharged (P. vs. discharge, the court is satisfied that:
Bacsa, 104 Phil. 136) (P. vs. Peralta, GR NO. (a) There is absolute necessity for the
121971, Oct. 16 2000). testimony of the accused whose discharge
is required;
Discharge should not be ordered before (b) There is no other direct evidence
presenting the evidence by the prosecution. available for the proper prosecution of the
Danger is that if discharged before presentation of offense committed, except the testimony
evidence, the proposed witness may disappear of said accused; (c) The testimony of said
(Flores vs. Sandiganbayan, 124 SCRA 109). accused can be substantially corroborated
in its material points; (d) Said accused
Discharge, when there is conspiracy, is necessary does not appear to be the most guilty; and
when the crime is committed secretly (P. vs. (e) Said accused has not at any time been
Villamor, 110 SCRA 199 [1981]). convicted of any offense involving moral
turpitude. Evidence adduced in support of
Testimony of a co-conspirator alone, unless given the discharge shall automatically form
in a straightforward manner and it contains details part of the trial. If the court denies the
which could not have been made as a result of an motion for discharge of the accused as
afterthought, is not sufficient for conviction. Such state witness, his sworn statement shall
testimony comes from a polluted source (P. vs. be inadmissible in evidence (People vs.
Bariquit, GR NO. 122733 Oct. 2, 2000). Feliciano Anabe Y Capillan, G.R> No.
179033, September 6, 2010, Carpio-
Testimony of a state witness should be
Morales, J.).
carefully scrutinized and received with great
caution (P. vs. Gongora, 8 SCRA 473 [1973]).
Denial of discharge, when tainted with grave
REASON: Use of testimony of one of the accused
abuse of discretion, correctible by certiorari (P. vs.
in a crime results in setting some guilty persons at
CA, 131 SCRA 107 [1984]).
liberty, and in some instances, at least, makes the
state a party to the setting of a premium upon
Erroneous or improper discharge does not affect
treachery and to the grant of reward for conduct
the acquittal of the discharged accused (P. vs.
which every honorable man instinctively recoils
Aniñon, GR NO. 39083, March 16, 1988).
with horror and disgust (US vs. Abanzado, 37 Phil.
655 [1918]).
Erroneous or improper discharge does not affect
the competency and quality of the testimony (P.
vs. Jamero, 24 SCRA 206 [1968]).
VIII. Which among the following is a requisite
before an accused may be discharged to Discharge of an accused who had already
become a state witness? (1%) (A) The pleaded guilty but not yet sentenced was allowed
testimony of the accused sought to be (P. vs. Ocima, 2112SCRA 646).
discharged can be substantially corroborated
on all points. (B) The accused does not
appear to be guilty. (C) There is absolute EFFECTS OF DISCHARGE
necessity for the testimony of the accused 1. Evidence adduced in support of the
whose discharge is requested. (D) The discharge shall automatically form part of
accused has not at any time been convicted the trial;
of any offense. (E) None of the above. 2. If the court denies the motion to discharge
SUGGESTED ANSWER: (C), Under Section the accused as state witness, his sworn
17 of Rule 119 of the Rules of Criminal statement shall be inadmissible in
Procedure, when two or more persons are evidence;
jointly charged with the commission of 3. Discharge of the accused operates as an
any offense, upon motion of the acquittal and bar to further prosecution for
prosecution before resting its case, the the same offense.
court may direct one or more of the
accused to be discharged with their OTHER MODES OF DISCHARGE:
consent so that they may be witnesses for 1. RA 6981 Witness Protection Program and
the state when after requiring the Benefit Act;
prosecution to present evidence and the 2. The power of the Ombudsman to grant
sworn statement of each proposed state immunity under sec. 17, RA 6770;
________________________________________________________________________________________________
3. Immunity under PD 749; accused fails or refuses to testify against his co-
4. Immunity under EO 14-A. accused in accordance with his sworn statement
constituting the basis for the discharge. (10a)
RA 6981 RULES OF COURT NOTES: Failure to testify must refer exclusively
The offense in which It has no qualification, it to defendant’s will or fault.
the testimony is to be applies to all felonies
used is limited only to Where an accused who turns state’s evidence
grave felony on a promise of immunity but later retracts and
The immunity is The immunity is fails to keep his part of the agreement, his
granted by the DOJ granted by the court confession of his participation in the commission
The witness is The witness so of the crime is admissible as evidence against
automatically entitled to discharged must still him.
certain rights and apply for the enjoyment
benefits of said rights and Discharge from original information to amended
benefits with the DOJ information, not new information. Hence,
Prosecutor required not He is charged in the discharge from the original information is not
to include the name of court as one of the affected by the amendment of the information
the witness in the accused as stated in (P. vs. Taruc, 5 SCRA 132).
information the information
No information may The charged against Section 19. When mistake has been made in
thus filed against the him shall be dropped charging the proper offense. — When it
witness and the same shall becomes manifest at any time before judgment
operate as an acquittal that a mistake has been made in charging the
proper offense and the accused cannot be
convicted of the offense charged or any other
EFFECT OF CERTIFICATION OF THE offense necessarily included therein, the accused
SECRETARY OF JUSTICE (RA 6981): shall not be discharged if there appears good
a. If the case is not yet filed, the prosecutor cause to detain him. In such case, the court shall
is compelled not to include the witness in commit the accused to answer for the proper
the information; offense and dismiss the original case upon the
b. If the information is already filed in court, filing of the proper information. (11a)
the prosecutor shall file a motion for the
discharge of the accused as a state Connected to sec. 14, Rule 110, last par.:
witness. Under the law, it is mandatory for If it appears at any time before judgment that a
the court to grant the motion. mistake has been made in charging the proper
NOTE: This modified the ruling in Crespo offense, the court shall dismiss the original
vs. Mogul, supra, which provides that the complaint or information upon the filing of a
discharge (dismissal) of a case filed in new one charging the proper offense in
accordance with section 19, Rule 119,
court is subject to the sound discretion of provided the accused shall not be placed in
the judge. double jeopardy. The court may require the
witnesses to give bail for their appearance at
Witness; Utilized as State Witness; Procedure (2006) the trial.
As counsel of an accused charged with homicide, you
are convinced that he can be utilized as a state witness.
What procedure will you take? (2.5%) This rule is predicated on the fact that an accused
SUGGESTED ANSWER:
person has the right to be informed of the nature
As counsel of an accused charged with homicide, the
and cause of accusations against him, and to
procedure that can be followed for the accused to be convict him of an offense different from that
utilized as a state witness is to ask the Prosecutor to charged in the complaint or information would be
recommend that the accused be made a state witness. an unauthorized denial of that right (US vs.
It is the Prosecutor who must recommend and move Campo, 23 Phil. 369).
for the acceptance of the accused as a state witness.
The accused may also apply under the Witness
Remedies; Void Judgment (2004)
Protection Program.
AX was charged before the YY RTC with theft of
Section 18. Discharge of accused operates as
jewelry valued at P20.000, punishable with
acquittal. — The order indicated in the preceding
imprisonment of up to 10 years of prision mayor
section shall amount to an acquittal of the
discharged accused and shall be a bar to future
under the Revised Penal Code. After trial, he was
prosecution for the same offense, unless the convicted of the offense charged, notwithstanding that

________________________________________________________________________________________________
the material facts duly established during the trial of similar character may be tried jointly at the
showed that the offense committed was estafa, discretion of the court. (14a)
punishable by imprisonment of up to eight years of
prision mayor under the said Code. No appeal having NOTE: In complex crimes, only grave and less
been taken therefrom, said judgment of conviction grave felonies may be complexed or that one
became final. Is the judgment of conviction valid? Is offense is a necessary means to commit the other.
the said judgment reviewable thru a special civil action Hence, there would be no complex crime in
for certiorari? Reason. (5%) reckless imprudence resulting to slight physical
SUGGESTED ANSWER: injuries and damage to property. But they may be
Yes, the judgment of conviction for theft upon an tried jointly. They are founded from the same facts
information for theft is valid because the court had (Reodica vs. CA, reiterating Lontok vs. Gorgonio,
jurisdiction to render judgment. However, the 89 SCRA 632).
judgment was grossly and blatantly erroneous. The
variance between the evidence and the judgment of In these cases, the charges may be tried jointly at
conviction is substantial since the evidence is one for the court’s discretion. The object of consolidation
estafa while the judgment is one for theft. The of trials is to avoid multiplicity of suits, guard
elements of the two crimes are not the same. (Lauro against oppression or abuse, prevent delay, clear
Santos v. People, 181 SCRA 487). One offense does not congested dockets, simplify the work of the trial
necessarily include or is included in the other. (Sec. 5 of court, and save unnecessary cost and expenses
Rule 120). (Palanca vs. Querubin, 30 SCRA 730).
The judgment of conviction is reviewable by certiorari
even if no appeal had been taken, because the judge CONSOLIDATION OF CIVIL ACTION (not
committed a grave abuse of discretion tantamount to arising from the crime) WITH CRIMINAL
lack or excess of his jurisdiction in convicting the ACTION
accused of theft and in violating due process and his
right to be informed of the nature and the cause of the The SC sustained the order of the trial court to
accusation against him, which make the judgment consolidate a civil action (an action for recovery of
void. wage differential, overtime, and termination pay
With the mistake in charging the proper offense, the plus damages) with criminal action for violation of
judge should have directed the filing of the proper Minimum Wage Law. The Court held that:
information and thereafter dismissed the original
information. (Sec. 19 of Rule 119). “a court may order several action pending before it to be
tried together where they arise from the same act, event
or transaction, involve the same or like issues, and
depend largely or substantially on the same evidence;
provided, that:
Section 20. Appointment of acting prosecutor. 1. The court has jurisdiction over the cases to be
— When a prosecutor, his assistant or deputy is consolidated;
disqualified to act due to any of the grounds stated 2. Joint trial will not give one party an undue
advantage or prejudice her substantial rights of
in section 1 of Rule 137 or for any other reasons,
the other parties” (Canos vs. Peralta).
the judge or the prosecutor shall communicate
with the Secretary of Justice in order that the latter
See also sec. 1,Rule 31.
may appoint an acting prosecutor. (12a)
Section 23. Demurrer to evidence. — After the

Section 21. Exclusion of the public. — The
prosecution rests its case, the court may dismiss
judge may, motu proprio, exclude the public from
the action on the ground of insufficiency of
the courtroom if the evidence to be produced
evidence (1) on its own initiative after giving the
during the trial is offensive to decency or public
prosecution the opportunity to be heard or (2)
morals. He may also, on motion of the accused,
upon demurrer to evidence filed by the accused
exclude the public from the trial, except court
with or without leave of court.
personnel and the counsel of the parties. (13a)
If the court denies the demurrer to evidence filed

Connect to Rule on Examination of Child
with leave of court, the accused may adduce
Witness, section 23.
evidence in his defense. When the demurrer to
evidence is filed without leave of court, the
Section 22. Consolidation of trials of related accused waives the right to present evidence and
offenses. — Charges for offenses founded on the submits the case for judgment on the basis of the
same facts or forming part of a series of offenses evidence for the prosecution. (15a)

________________________________________________________________________________________________
The motion for leave of court to file demurrer to accused. A judgment of acquittal is
evidence shall specifically state its grounds and immediately executor and no appeal can
shall be filed within a non-extendible period of five be made therefrom. Otherwise the
(5) days after the prosecution rests its case. The Constitutional protection against double
prosecution may oppose the motion within a non- jeopardy would be violated.
extendible period of five (5) days from its receipt.
Demurrer to Evidence; Civil Case vs.
If leave of court is granted, the accused shall file Criminal Case (2007) No.V. (a) Distinguish
the demurrer to evidence within a non-extendible the effects of the filing of a demurrer to the
period of ten (10) days from notice. The evidence in a criminal case and its filing in a
prosecution may oppose the demurrer to evidence civil case. (5%) SUGGESTED ANSWER: The
within a similar period from its receipt. following are the distinctions in effects of
demurrer to the evidence in criminal
The order denying the motion for leave of court to cases from that in civil cases:
file demurrer to evidence or the demurrer itself (1) In criminal cases, demurrer to the
shall not be reviewable by appeal or by certiorari evidence requires leave of court,
before judgment. (n) otherwise, the accused would lose his
right to present defense evidence if filed
Notes: Rule not applicable if prosecution has and denied; in civil cases, no leave of
not rested court is required for filing such demurrer.
If the demurrer is sustained by the court, the order (2) In criminal cases, when such demurrer
of dismissal is tantamount to acquittal. Hence, not is granted, the dismissal of the case is not
appealable. appealable inasmuch as the dismissal
would amount to an acquittal, unless
GR: The order denying the motion for leave of made by a court acting without or in
court to file demurrer to evidence or the excess of jurisdiction; in civil cases, when
demurrer itself shall not be reviewable by appeal such demurrer is granted, the dismissal of
or by certiorari before judgment. the case can be appealed by the plaintiff.
(3) In criminal cases, the accused loses his
Exception: when there is grave abuse of right to present his defense-evidence in
discretion, certiorari may be resorted to the trial court when he filed the demurrer
(Congregation of the Religious of the Virgin without prior leave of court; while in civil
Mary vs. CA, 291 SCRA 385 [1998]). cases, the defendant loses his right to
present his defense-evidence only if the
The appellants informed the court that they will plaintiff appealed such dismissal and the
file demurrer to evidence and the court agreed case is before the appellate court already
to give them time to file the same is substantial since the case would be decide only on the
compliance of the required leave of court (P. vs. basis of plaintiff‟s evidence on record.
Ciobal, 184 SCRA 469).
Demurrer to Evidence (2009) No.XVI.A.

After the prosecution had rested and made Demurrer to Evidence; Contract of Carriage (2004)
its formal offer of evidence, with the court AX, a Makati-bound paying passenger of PBU, a
admitting all of the prosecution evidence, the public utility bus, died instantly on board the bus on
accused filed a demurer to evidence with account of the fatal head wounds he sustained as a
leave of court. the prosecution was allowed to result of the strong impact of the collision between the
comment thereon. Thereafter, the court bus and a dump truck that happened while the bus was
granted the demurer, finding that the still travelling on EDSA towards Makati. The
accused could not have committed the foregoing facts, among others, were duly established
offense charged. If the prosecution files a on evidence in-chief by the plaintiff TY, sole heir of
motion for reconsideration on the ground AX, in TY’s action against the subject common carrier
that the court order granting the demurer for breach of contract of carriage. After TY had rested
was not in accord with law and his case, the common carrier filed a demurrer to
jurisprudence, will the motion prosper? evidence, contending that plaintiff’s evidence is
SUGGESTED ANSWER: NO, the motion will insufficient because it did not show (1) that defendant
not prosper. With the granting of the was negligent and (2) that such negligence was the
demurrer, the case shall be dismissed and proximate cause of the collision. Should the court
the legal effect is the acquittal of the

________________________________________________________________________________________________
grant or deny defendant's demurrer to evidence? evidence. The court denied Carlos’ motion to present
Reason briefly. (5%) evidence and instead judgment on the basis of the
SUGGESTED ANSWER: evidence for the prosecution. Was the court correct in
No. The court should not grant defendant's preventing Carlos from presenting his evidence and
demurrer to evidence because the case is for breach rendering judgment on the basis of the evidence for
of contract of carriage. Proof that the defendant was the prosecution? Why? (5%)
negligent and that such negligence was the SUGGESTED ANSWER:
proximate cause of the collision is not required. Yes, because the demurrer to the evidence was filed
(Articles 1170 and 2201, Civil Code; (Mendoza v. Phil. without leave of court. The Rules provide that when
Airlines, Inc., 90 Phil. 836 [1952]; Batangas the demurrer to evidence is filed without leave of
Transportation Co. v. Caguimbal, 22 SCRA171 U court, the accused waives the right to present evidence
968]; Abeto v. PAL, 115 SCRA 489 [1982]; Aboitiz v. and submits the case for judgment on the basis of the
Court of Appeals, 129 SCRA 95 [1984]). evidence for the prosecution. (Sec. 23 of Rule 119, Revised
Rules of Criminal Procedure)
Demurrer to Evidence; w/o Leave of Court (1998)
Facing a charge of Murder, X filed a petition for bail. Demurrer to Evidence; w/o Leave of Court (2004)
The petition was opposed by the prosecution but after The information for illegal possession of firearm filed
hearing the court granted bail to X. On the first against the accused specifically alleged that he had no
scheduled hearing on the merits, the prosecution license or permit to possess the caliber .45 pistol
manifested that it was not adducing additional mentioned therein. In its evidence-in-chief, the
evidence and that it was resting its case. X filed a prosecution established the fact that the subject
demurrer to evidence without leave of court but it was firearm was lawfully seized by the police from the
denied by the court. possession of the accused, that is, while the pistol was
1. Did the court have the discretion to deny the tucked at his waist in plain view, without the accused
demurrer to evidence under the circumstances being able to present any license or permit to possess
mentioned above? (2%) the firearm. The prosecution on such evidence rested
2. If the answer to the preceding question is in the its case and within a period of five days therefrom, the
affirmative, can X adduce evidence in his defense after accused filed a demurrer to evidence, in sum
the denial of his demurrer to evidence? [1%] contending that the prosecution evidence has not
3. Without further proceeding and on the sole basis of established the guilt of the accused beyond reasonable
the evidence of the prosecution, can the court legally doubt and so prayed that he be acquitted of the
convict X for Murder? (2%) offense charged. The trial court denied the demurrer
SUGGESTED ANSWER: to evidence and deemed the accused as having waived
1. Yes. The Court had the discretion to deny the his right to present evidence and submitted the case
demurrer to the evidence, because although the for judgment on the basis of the prosecution evidence.
evidence presented by the prosecution at the hearing In due time, the court rendered judgment finding the
for bail was not strong, without any evidence for the accused guilty of the offense charged beyond
defense, it could be sufficient for conviction. reasonable doubt and accordingly imposing on him the
2. No. Because he filed the demurrer to the evidence penalty prescribed therefor. Is the judgment of the trial
without leave. (Sec. 15, Rule 119, Rules of Criminal Procedure.) court valid and proper? Reason. (5%)
However, the trial court should inquire as to why the SUGGESTED ANSWER:
accused filed the demurrer without leave and whether Yes. The judgment of the trial court is valid. The
his lawyer knew that the effect of filing it without leave accused did not ask for leave to file the demurrer to
is to waive the presentation of the evidence for the evidence. He is deemed to have waived his right to
accused. (People vs. Fores, 269 SCRA 62.) present evidence. (Sec. 23 of Rule 119; People v. Flores,
3. Yes. Without any evidence from the accused, the 269 SCRA 62 [1997]; Bernardo v. Court of Appeals, 278
prima facie evidence of the prosecution has been SCRA 782 [1997]. However, the judgment is not proper
converted to proof beyond reasonable doubt. or is erroneous because there was no showing from
ALTERNATIVE ANSWER: the proper office like the Firearms Explosive Unit of
If the evidence of guilt is not strong and beyond the Philippine National Police that the accused has a
reasonable doubt then the court cannot legally convict permit to own or possess the firearm, which is fatal to
X for murder. the conviction of the accused. (Mallari v. Court of
Appeals &People,265 SCRA 456[1996]).
Demurrer to Evidence; w/o Leave of Court (2001)
Carlos, the accused in a theft case, filed a demurrer to
evidence without leave of court. The court denied the Section 24. Reopening. — At any time before
demurrer to evidence and Carlos moved to present his finality of the judgment of conviction, the judge
may, motu proprio or upon motion, with hearing in

________________________________________________________________________________________________
either case, reopen the proceedings to avoid a accused and the aggravating or mitigating
miscarriage of justice. The proceedings shall be circumstances which attended its commission;
terminated within thirty (30) days from the order (2) the participation of the accused in the
granting it. (n) offense, whether as principal, accomplice, or
accessory after the fact;
Connect to sec. 6 Rule 135. (3) the penalty imposed upon the accused;
Connected to sec. 7, Rule 120: and
(4) the civil liability or damages caused by
Section 7. Modification of judgment. — A judgment of his wrongful act or omission to be recovered
conviction may, upon motion of the accused, be from the accused by the offended party, if
modified or set aside before it becomes final or before there is any, unless the enforcement of the
appeal is perfected. Except where the death penalty is civil liability by a separate civil action has been
imposed, a judgment becomes final after the lapse of reserved or waived.
the period for perfecting an appeal, or when the
sentence has been partially or totally satisfied or served,
or when the accused has waived in writing his right to In case the judgment is of acquittal, it shall state
appeal, or has applied for probation. whether the evidence of the prosecution
absolutely failed to prove the guilt of the accused
or merely failed to prove his guilt beyond
reasonable doubt. In either case, the judgment
shall determine if the act or omission from which
RULE 120
the civil liability might arise did not exist. (2a)
Judgment
Connected to:
Section 1. Judgment definition and form. —

Judgment is the adjudication by the court that the Art. 29, NCC. When the accused in a criminal
accused is guilty or not guilty of the offense prosecution is acquitted on the ground that
charged and the imposition on him of the proper his guilt has not been proved beyond
penalty and civil liability, if any. It must be written reasonable doubt, a civil action for damages
in the official language, personally and directly for the same act or omission may be
prepared by the judge and signed by him and shall instituted. Such action requires only a
contain clearly and distinctly a statement of the
facts and the law upon which it is based. (1a) preponderance of evidence. Upon motion of
the defendant, the court may require the
Note: It is not necessary that the judge who tried plaintiff to file a bond to answer for damages
the case be the same judicial officer to decide it. It in case the complaint should be found to be
is sufficient if he be appraised of the evidence malicious.
already presented by reading of the transcript of
testimonies already introduced, in the same If in a criminal case the judgment of acquittal
manner as appellate courts review evidence on
appeal (P. vs. Peralta, 237 SRA 220 [1994]). is based upon reasonable doubt, the court
shall so declare. In the absence of any
REMEDY IF THE JUDGMENT IS NOT PUT IN declaration to that effect, it may be inferred
WRITING: To file a petition for mandamus to from the text of the decision whether or not
compel the judge to put in writing the decision of the acquittal is due to that ground.
the court.
Otherwise, the judgment must make a finding on
The court has the right to reprehend acts of the
the civil liability of the accused in favor of the
accused despite his acquittal provided that it is
offended party. There appears to be no sound
relevant to the issues of the case (P. vs. Meneses,
reasons to require a separate civil action to still be
74 Phil. 119).
filed considering that the facts to be proved in the
civil case have already been established in the
criminal proceedings where the accused was
Section 2. Contents of the judgment. — If the acquitted. Due process has been accorded the
judgment is of conviction, it shall state: accused (Padilla vs. CA, 129 SCRA 558).
(1) the legal qualification of the offense REASONABLE DOUBT

constituted by the acts committed by the

________________________________________________________________________________________________
The state of the case which, after full 1. The acquittal is based on reasonable
consideration of all evidence, leaves the mind of doubt;
the judge in such a condition that he cannot say 2. The decision contains a declaration that
that he feels an abiding conviction, to a moral the liability is only civil not criminal;
certainty, of the truth of the charge. 3. Civil liability is not derived from the
criminal act of which the accused is
ACQUITTAL acquitted (Sadio vs. RTC of Antique, 201
Finding of not guilty based on the merits, that is, SCRA 744).
the accused is acquitted because the evidence
does not show that his guilt is beyond reasonable GR: Duty of the court to award civil liability (P. vs.
doubt, or a dismissal of the case after the Ursua, 60 Phil. 252).
prosecution has rested its case upon motion of the Exceptions:
accused on the ground that the evidence fails to 1. Civil liability is waived;
show beyond reasonable doubt that the accused 2. Claim for civil liability is reserved;
is guilty 3. Civil liability, when allowed by law, is
separately filed.
It is well-settled that acquittal , in a criminal case is
immediately final and executory upon its Failure to award civil liability is appealable
promulgation, and that accordingly, the state may (Bernardo vs. CA, 190 SCRA 63).
not seek its review without placing the accused in
double jeopardy (Barbers vs. Laguio,351 SCRA When civil liability is proper, there is no need to file
606). separate action for its award, despite acquittal of
the accused (Interpacific Transit vs. Aviles, 186
Strict compliance of the first par. of section 2. The SCRA 385).
decision must clearly state the facts and the law
on which it is based (P. vs. Bugarin, GR NO. CIVIL LIABILITY ARISING FROM CRIMES
110817-22, June 13, 1997). INCLUDES:
1. Actual damages;
Trial courts should not merely reproduce 2. Exemplary damages;
everything testified to by witness (P. vs. Molina, 3. Loss of earning capacity;
GR NO. 70008, April 26, 1990). 4. Attorney’s fees, when exemplary
damages is to be awarded or separate
Narration of the substance of the testimony of civil action was filed (P. vs. Marollano, 276
witness was held enough statement of facts (P. SCRA 84);
vs. Sabijon, 94 Phil. 1047). 5. Moral damages
6. Liability ex delictu.
Trial court must make an independent assessment
of the evidence and must not solely rely on the The court should, however, specify the extent of
word of the prosecution on the suppose damages and not lump them altogether (P. vs.
insufficiency of evidence (Martinez vs. CA, 237 Castillo, 261SCRA 493).
SCRA575 [1994]).
Section 3. Judgment for two or more offenses.
Express specification of the law violated not — When two or more offenses are charged in a
necessary. If the conclusion is based upon some
single complaint or information but the accused
provision of law, the sentence will be sustained fails to object to it before trial, the court may
(US vs. Mendoza, 14 Phil. 198). convict him of as many offenses as are charged
and proved, and impose on him the penalty for
Alternative penalty may not be imposed. Hence, each offense, setting out separately the findings of
the sentence to pay the fine of P460 or to suffer fact and law in each offense. (3a)
imprisonment for 3 months is invalid (P. vs.
Egudez, 36 Phil. 860).
NOTE: This is different to subsidiary penalty for (66) What is the effect of the failure of the
failure to pay fine as provided as provided in art. accused to file a motion to quash an
38 and 39, RPC. information that charges two offenses? (A) He
may be convicted only of the more serious
ACQUITTAL IN A CRIMINAL CASE DOES NOT offense. (B) He may in general be convicted
BAR CONTINUATION OF CIVIL LIABILITY of both offenses. (C) The trial shall be void.
CONNECTED THEREWITH:

________________________________________________________________________________________________
(D) He may be convicted only of the lesser In applying the provisions of this rule the duration
offense. of perpetual penalties (pena perpetua) shall be
computed at thirty years.
Section 4. Judgment in case of variance

Connected to RPC, art. 70: between allegation and proof. — When there is
variance between the offense charged in the
Art. 70. Successive service of sentence. — When complaint or information and that proved, and the
the culprit has to serve two or more penalties, he offense as charged is included in or necessarily
shall serve them simultaneously if the nature of includes the offense proved, the accused shall be
convicted of the offense proved which is included
the penalties will so permit otherwise, the in the offense charged, or of the offense charged
following rules shall be observed: which is included in the offense proved. (4a)
In the imposition of the penalties, the order of Designation of offense in the information is not
their respective severity shall be followed so that necessarily the crime charged. Settled is the
they may be executed successively or as nearly as rule that in case of variance between the
may be possible, should a pardon have been designation of the offense in the caption/title and
as alleged in the body (recital of facts) of the
granted as to the penalty or penalties first complaint/information, the latter prevails (US vs.
imposed, or should they have been served out. Burns, 41 Phil. 418).
For the purpose of applying the provisions of the Note: keep in mind that the accused can only be
next preceding paragraph the respective severity convicted of the lesser offense.
of the penalties shall be determined in
An accused cannot be convicted for the lesser
accordance with the following scale: offense necessarily included in the offense
charged if at the time of the filing of the
1. Death, information, the lesser offense has already
2. Reclusion perpetua, prescribed (Francisco vs. CA, 122 SCRA 538)
3. Reclusion temporal,
4. Prision mayor, Section 5. When an offense includes or is
included in another. — An offense charged
5. Prision correccional,
necessarily includes the offense proved when
6. Arresto mayor, some of the essential elements or ingredients of
7. Arresto menor, the former, as alleged in the complaint or
8. Destierro, information, constitute the latter. And an offense
9. Perpetual absolute disqualification, charged is necessarily included in the offense
10 Temporal absolute disqualification. proved, when the essential ingredients of the
former constitute or form a part of those
11. Suspension from public office, the right to
constituting the latter. (5a)
vote and be voted for, the right to follow a
profession or calling, and GR: If what is proved by the prosecution is an
12. Public censure. offense which is included in the offense charged,
the accused may be convicted of the offense
Notwithstanding the provisions of the rule next proved.
preceding, the maximum duration of the convict's
Exception: Where the facts supervened after the
sentence shall not be more than three-fold the
fling of the information which changes the nature
length of time corresponding to the most severe of the offense.
of the penalties imposed upon him. No other
penalty to which he may be liable shall be
inflicted after the sum total of those imposed Example:
equals the same maximum period. A. Offense charged necessarily includes offense
proved
Charge is acts of lasciviousness but
Such maximum period shall in no case exceed proved is just unjust vexation; convict the
forty years.
________________________________________________________________________________________________
accused of unjust vexation, the crime If the accused is confined or detained in another
proved. province or city, the judgment may be
promulgated by the executive judge of the
B. Offense charged is necessarily included in the Regional Trial Court having jurisdiction over the
offense proved place of confinement or detention upon request of
Charge is acts of lasciviousness but the court which rendered the judgment. The court
proved is attempted rape; convict the promulgating the judgment shall have authority to
accused of acts of lasciviousness, the accept the notice of appeal and to approve the bail
crime charged. bond pending appeal; provided, that if the decision
of the trial court convicting the accused changed
the nature of the offense from non-bailable to
ADDITIONAL EXAMPLES: bailable, the application for bail can only be filed
Anti-Graft includes falsification of official and resolved by the appellate court.
and commercial documents (Pecho, vs.
Sandiganbayan); The proper clerk of court shall give notice to the
Willful acts includes commission of accused personally or through his bondsman or
negligent acts (Samson vs. CA, 103 Phil. warden and counsel, requiring him to be present
277); at the promulgation of the decision. If the accused
One charged of rape cannot be convicted tried in absentia because he jumped bail or
of qualified seduction (P. vs. Castro, 58 escaped from prison, the notice to him shall be
SCRA 473); served at his last known address.
However, when the allegations of the

In case the accused fails to appear at the
information contains allegations sufficient
scheduled date of promulgation of judgment
to make-out a case of qualified seduction,
despite notice, the promulgation shall be made by
he should be convicted of qualified recording the judgment in the criminal docket and
seduction despite the charge of rape serving him a copy thereof at his last known
(Gonzales vs. CA, 232 SCRA 667 [1994]). address or thru his counsel.
Simple robbery included in kidnapping
with ransom (P. vs. Puno, 219 SCRA 85); If the judgment is for conviction and the failure of
An accused charged with a complex crime the accused to appear was without justifiable
may be convicted of one of the cause, he shall lose the remedies available in
component crimes (US. Vs. Lahoylahoy, these rules against the judgment and the court
38 Phil. 350); shall order his arrest. Within fifteen (15) days from
Technical malversation is not included or promulgation of judgment, however, the accused
does not include the crime of malversation may surrender and file a motion for leave of court
of public funds (Parungao vs. to avail of these remedies. He shall state the
Sandiganbayan, 197 SCRA173); reasons for his absence at the scheduled
Co-Principal may be convicted as promulgation and if he proves that his absence
accessory even if the principal is acquitted was for a justifiable cause, he shall be allowed to
(Vino vs. People 178 SCRA 626); avail of said remedies within fifteen (15) days from
The fact that information indicated notice. (6a)
marijuana leaves while laboratory report
mentioned flowering tops is not a ground Bar Exam Question 2012
for acquittal (P. vs. Viloria, 191 SCRA 13. P failed to appear at the promulgation of
777). judgment without justifiable cause. The
judgment convicted P for slight physical
Section 6. Promulgation of judgment. — The injuries. Judgment may therefore be
judgment is promulgated by reading it in the promulgated in the following manner:
presence of the accused and any judge of the a. By the reading of the judgment in the
court in which it was rendered. However, if the presence of only the judge.
conviction is for a light offense, the judgment may b. By the clerk of court in the presence of P's
be pronounced in the presence of his counsel or counsel.
representative. When the judge is absent or c. By the clerk of court in the presence of a
outside of the province or city, the judgment may representative of P.
be promulgated by the clerk of court. d. By entering the judgment into the
criminal docket of the court.

________________________________________________________________________________________________
SUGGESTED ANSWER: (d), If P fails to (b) Can the trial court also order the arrest of X?
appear at the promulgation of judgment SUGGESTED ANSWER:
without justifiable cause, the (a) In the absence of the accused, the promulgation
promulgation shall be made by recording shall be made by recording the Judgment in the
the judgment in the criminal docket and criminal docket and a copy thereof served upon the
serving him a copy thereof at his last accused or counsel. (Sec. 6. third par., Rule 120)
known address or thru his counsel. (Rule (b) No, the trial court cannot order the arrest of X if
120, Sec. 6, Rules of Court). the judgment is one of acquittal and, in any event, his
failure to appear was with justifiable cause since he had
Bar Exam Question 2011 to attend to another criminal case against him.
(22) The accused jumps bail and fails to
appear on promulgation of judgment where Bar Exam Question 2012
he is found guilty. What is the consequence 58. The judgment in a criminal case may be
of his absence? (A) Counsel may appeal the promulgated by the following, except by:
judgment in the absence of the accused. (B) a. a Sandiganbayan justice in cases
The judgment shall be promulgated in his involving anti-graft laws.
absence and he loses his right of appeal. b. a Clerk of Court of the court which
(C) The promulgation of the judgment shall rendered judgment.
be suspended until he is brought to the c. an Executive Judge of a City Court if the
jurisdiction of the court. (D) The judgment accused is detained in another city.
shall be void. d. any judge of the court in which it was
rendered.
SUGGESTED ANSWER:
(a), The Sandiganbayan is a special court
of the same level as the Court of Appeals
Notes:
(CA), and possessing all the inherent
powers of a court of justice, with
1. The judgment must have been rendered
functions of a trial court. It is a collegial
and promulgated during the incumbency
court. x x x The members of the graft
of the judge who signed it;
court act on the basis of consensus or
2. The presence of counsel during
majority rule. The three Justices of a
promulgation of judgment is not necessary
division, rather than a single judge, are
(Gonzales vs. Presiding Judge of Br.
naturally expected to exert keener
1RTC of Bohol, 186 SCRA 101);
3. Presence of the accused during judiciousness and to apply broader
promulgation is not indispensable. circumspection in trying and deciding
cases. (Edgar Payumo et al. Vs. Hon.
Judges are required to take down notes of salient Sandiganbayan et al., G.R. No. 151911,
portions of the hearing and to proceed in the July 25, 2011, Mendoza, J.). Thus, a
preparation of decisions without waiting for the Sandiganbayan Justice alone may not
TSN; with or without the TSN, the 90 day period promulgate judgment in a criminal case
for deciding cases should be adhered to (Lowan involving anti-graft laws. On the other
vs. Moleta, 90 SCRA 579). hand, a judgment in the regular court is
promulgated by reading it in the presence
Judgment must be promulgated in its entirety. of the accused and any judge of the court
Mere reading of the dispositive portion is not in which it was rendered. When the judge
sufficient (Dizon vs. Lopez, 278 SCRA 483). is absent or outside the province or city,
the judgment may be promulgated by the
Judgment; Promulgation of Judgment (1997) clerk of court. if the accused is confined
X, the accused in a homicide case before the RTC. or detained in another province or city,
Dagupan Cay, was personally notified of the the judgment may be promulgated by the
promulgation of judgment in his case set for 10 executive judge of the Regional Trial
December 1996. On said date. X was not present as he Court having jurisdiction over the place of
had to attend to the trial of another criminal case confinement or detention upon request of
against him in Tarlac, Tarlac. The trial court denied the the court which rendered the judgment.
motion of the counsel of X to postpone the (Rule 120, Sec. 6, Rules of Court).
promulgation.
(a) How shall the court promulgate the judgment in
the absence of the accused? SEE ALSO NOTES ON DOUBLE JEOPARDY.

________________________________________________________________________________________________
Section 7. Modification of judgment. — A or instruments of the crime are merely accessory

judgment of conviction may, upon motion of the penalty. Hence, they are automatically deemed
accused, be modified or set aside before it included in the imposition of the principal penalty.
becomes final or before appeal is perfected.
Except where the death penalty is imposed, a Art. 45, RPC. Confiscation and forfeiture of the
judgment becomes final after the lapse of the
proceeds or instruments of the crime. — Every
period for perfecting an appeal, or when the
sentence has been partially or totally satisfied or penalty imposed for the commission of a
served, or when the accused has waived in writing felony shall carry with it the forfeiture of the
his right to appeal, or has applied for probation. proceeds of the crime and the instruments or
(7a) tools with which it was committed.
Bar Exam Question 2012 Such proceeds and instruments or tools shall
61. A judgment of conviction in a criminal
be confiscated and forfeited in favor of the
case becomes final when:
a. accused orally waived his right to appeal. Government, unless they be property of a
b. accused was tried in absentia and failed to third person not liable for the offense, but
appear at the promulgation. those articles which are not subject of lawful
c. accused files an application for commerce shall be destroyed.
probation.
d. reclusion perpetua is imposed and the The trial court can validly amend the civil aspect of
accused fails to appeal. its decision within 15 days from promulgation of
SUGGESTED ANSWER: (c), A judgment of judgment even though the appeal had in the
conviction in a criminal case becomes meantime already been perfected by the accused
final when the accused after the lapse of from the judgment of conviction
the period for perfecting an appeal, or
when the sentence has been partially or Section 8. Entry of judgment. — After a
totally satisfied or served, or when the judgment has become final, it shall be entered in
accused has waived in writing his right to accordance with Rule 36. (8)
appeal, or has applied for probation (Rule
120, Sec. 7, Rules of Court). Section 2. Entry of judgments and final orders.
— If no appeal or motion for new trial or
reconsideration is filed within the time provided in
these Rules, the judgment or final order shall
forthwith be entered by the clerk in the book of
Connect to section 24, Rule 119: entries of judgments. The date of finality of the
judgment or final order shall be deemed to be the
Section 24. Reopening. — At any time before date of its entry. The record shall contain the
finality of the judgment of conviction, the judge dispositive part of the judgment or final order and
may, motu proprio or upon motion, with hearing in shall be signed by the clerk, within a certificate that
either case, reopen the proceedings to avoid a such judgment or final order has become final and
miscarriage of justice. The proceedings shall be executory.
terminated within thirty (30) days from the order
granting it.
The final judgment of the court is carried into
effect by the process called “mittimus”.
Notes: Modification of final judgment by the trial
court was not allowed. The judgment in this case
did not include the confiscation of the money MITTIMUS
found at the time and place of gambling. It is a process issued by the court after conviction
Modification of said judgment to include to carry out final judgment, such as commanding a
confiscation of such money is barred by double prison warden to hold the accused in accordance
jeopardy (US. Vs. Hart, 24 Phil. 578). with the terms of the judgment.
However, when there is an express reservation as

to the disposition of the money found in the pocket
of the person who already paid the fine, there is Section 9. Existing provisions governing
no double jeopardy (Lim vs. Oreta, 94 Phil. 40). suspension of sentence, probation and parole
not affected by this Rule. — Nothing in this Rule
IMPORTANT: It must be noted that under art. 45, shall affect any existing provisions in the laws
RPC, confiscation and forfeiture of the proceeds
________________________________________________________________________________________________
governing suspension of sentence, probation or Hon. Samson-Tatad, GR No. 170979,

parole. (9a) Feb. 9, 2011).
NOTE: Suspension of sentence, Probation, and A motion for reconsideration of the judgment may
Parole are substantially discussed in separate be filed in order to correct errors of law or fact in
subject (Criminal Law Reviewer). the judgment. It does not require further
proceedings.
Appeals; Abandonment of a Perfected Appeal (2009)

No.XI.E. The filing of a motion for the reconsideration
of the trial court’s decision results in the abandonment
of a perfected appeal. SUGGESTED ANSWER: FALSE.
The trial court has lost jurisdiction after perfection of
the appeal and so it can no longer entertain a motion
RULE 121 for reconsideration. ALTERNATIVE ANSWER: FALSE,
because the appeal may be perfected as to one party
New Trial or Reconsideration but not yet perfected as to the other party who may
still file a motion for reconsideration without
NOTE: “WRIT OF ERROR CORAM NOBIS” abandonment of his right of appeal even though the
A remedy under American jurisdiction whereby the appeal of the case is perfected already as to the other
lingering effects of an erroneous conviction based party.
on an unconstitutional law or a sham trial is
removed or erased. Ex.: Section 1. New trial or reconsideration. — At
1. Recidivism; any time before a judgment of conviction becomes
2. Habitual delinquency; final, the court may, on motion of the accused or
3. Reiteracion; at its own instance but with the consent of the
4. Moral turpitude. accused, grant a new trial or reconsideration. (1a)
NEW TRIAL NOTE: Once the appeal is perfected, the trial

It is the rehearing of the case decided but before steps out of the case an the appellate court steps
judgment of conviction becomes final, whereby in. should it come to pass then that during the
errors of law or irregularities are expunged from pendency of the appeal, new and material
the record or new evidence is introduced, or both evidence, for example, has been discovered, the
steps are taken. accused may file a motion for new trial in the
Bar Exam Question 2011 appellate court.
(83) What is the effect and ramification of an
order allowing new trial? (A) The court’s The trial court can take cognizance of the motion
decision shall be held in suspension until the for reconsideration filed by the private offended
defendant could show at the reopening of party within the period to appeal with respect to
trial that it has to be abandoned. (B) The the civil liability even the accused had already
court shall maintain the part of its judgment perfected his appeal (P. vs. Ursua, 60 Phil. 252).
that is unaffected and void the rest. (C) The
evidence taken upon the former trial, if CASES WHEN THE TRIAL COURT LOSES
material and competent, shall remain in JURISDICTION OVER THE SENTENCE
use. (D) The court shall vacate the judgment BEFORE LAPSE OF 15 DAYS:
as well as the entire proceedings had in the 1. When the accused voluntarily submits to
case. the execution of the sentence;
2. When the accused perfects his appeal.
The moment appeal is perfected, the court
A motion for new trial or reconsideration should be a quo loses jurisdiction over it, except for
filed with the trial court within 15 days from the correcting clerical errors.
promulgation of judgment and interrupts the period Note: Under the civil procedure there is
for perfecting an appeal from the time of its filing such a thing called “Residual Powers of
until notice of the order overruling the motion shall the court”.
have been served upon the accused or his
counsel. NEW TRIAL REOPENING OF THE
.Fresh period rule in Neypes vs. CA CASE
equally applies in criminal cases (Yu vs. Filed after judgment is Made by the court

________________________________________________________________________________________________
rendered but before before judgment is

finality thereof rendered in the However, if the incompetence, ignorance, or
exercise of sound inexperience of counsel is so great and the error
discretion committed as a result thereof is so serious that the
Made by the court on Does not require the client, who otherwise has a good cause, is
motion of the accused consent of the accused; prejudiced and denied his day in court, the
or at its own instance may be made by either litigation may be re-opened to give the client a
but with the consent of party who can chance to present his case.
the accused thereafter present Violation of right to counsel is a ground for new
additional evidence trial (Delgado vs. CA, 145 SCRA 357).
[Right to counsel means reasonably effective

Section 2. Grounds for a new trial. — The court assistance].
shall grant a new trial on any of the following
grounds: Dismissal of appeal is set aside if lawyer is fake
(Telan vs. CA, 202 SCRA 534). But note on the
case of P. vs. Elesterio, supra.
(a) The errors of law or irregularities
prejudicial to the substantial rights of the Loss of stenographic notes after trial is not a
accused have been committed during the trial; ground for new trial, the remedy is the
reconstitution of missing evidence (P. vs. Bocar,
(b) The new and material evidence has been 97 Phil. 398).
discovered which the accused could not with
reasonable diligence have discovered and OTHER GROUNDS FOR NEW TRIAL:
produced at the trial and which if introduced
and admitted would probably change the 1. Section 11, Rule 124. Scope of judgment. —
judgment. (2a) The Court of Appeals may reverse, affirm, or
modify the judgment and increase or reduce
Requisites for newly discovered evidence as the penalty imposed by the trial court, remand
the case to the Regional Trial Court for new
ground for new trial: trial or retrial, or dismiss the case.;
1. That the evidence is material;
2. Evidence is discovered after trial; 2. Power of the SC to suspend it own for the
3. That the evidence could not have been benefit of substantial justice;
discovered and produced at the trial even 3. Recantation of witness
with the exercise of reasonable diligence;
4. Evidence is not merely cumulative, The GR is that recantation of witness is
corroborative, or impeaching; frowned upon and looked upon with
5. The evidence is of such weight that if disfavor because they can easily be
admitted would probably change the secured usually for monetary
judgment; consideration.
6. Affidavits of witnesses by whom such Exception: when, however, the sole basis
evidence is expected to be given [or duly of conviction is the testimony of the
authenticated documents sought to be recanting witness, a new trial may be had
introduced](P. vs. Dela Cruz, 2 SCRA (P. vs. Bocar, supra).
1119).
7. Notice to the prosecutor; Confession; Affidavit of Recantation (1998)
8. Hearing. 1 If the accused on the witness stand repeats his earlier
uncounseled extrajudicial confession implicating his
IMPORTANT: Pro forma rule is not applicable in
coaccused in the crime charged, is that testimony
criminal cases (P. vs. Colmenares, 107 Phil 220).
admissible in evidence against the latter? [3%]
2 What is the probative value of a witness' Affidavit of
Lost appeal cannot be retrieved by a motion for
Recantation? [2%]
new trial (Navarro vs. CA, 234 SCRA 639). SUGGESTED ANSWER:
1. Yes. The accused can testify by repeating his earlier
Mistakes of counsel in the conduct of the trial are uncounseled extrajudicial confession, because he can
not grounds for a new trial. This rule is the same be subjected to cross-examination.
whether the mistakes are result of ignorance, 2. On the probative value of an affidavit of
inexperience, or incompetence (US vs. Umali, 15
recantation, courts look with disfavor upon
Phil. 37).

________________________________________________________________________________________________
recantations because they can easily be secured from (a) When a new trial is granted on the ground
witnesses, usually through intimidation or for a of errors of law or irregularities committed
monetary consideration, Recanted testimony is during the trial, all proceedings and evidence
exceedingly unreliable. There is always the probability affected thereby shall be set aside and taken
that it will be repudiated. (Molina vs. People. 259 SCRA anew. The court may, in the interest of justice,
138.) allow the introduction of additional evidence.
(b) When a new trial is granted on the ground

RECANTATION AFFIDAVIT OF of newly-discovered evidence, the evidence
DESISTANCE already adduced shall stand and the newly-
To renounce and To formally declare the discovered and such other evidence as the
withdraw a prior lack of interest in the court may, in the interest of justice, allow to be
statement formally and prosecution of the introduced shall be taken and considered
publicly action against the together with the evidence already in the
accused record.
Section 3. Ground for reconsideration. — The (c) In all cases, when the court grants new
court shall grant reconsideration on the ground of trial or reconsideration, the original judgment
errors of law or fact in the judgment, which shall be set aside or vacated and a new
requires no further proceedings. (3a) judgment rendered accordingly. (6a)
NOTE: The effect of granting new trial is not to

acquit the accused of the crime of which the
BERRY RULE judgment finds him guilty, but precisely to set
Burden is on the accused to proved that the aside the judgment so that the case may be tried
requisites for New Trial or Reconsideration is de novo as if no trial had been had before.
fully satisfied (Ucat).
Section 4. Form of motion and notice to the

prosecutor. — The motion for a new trial or RULE 122
reconsideration shall be in writing and shall state
the grounds on which it is based. If based on a Appeal
newly-discovered evidence, the motion must be
supported by affidavits of witnesses by whom
such evidence is expected to be given or by duly Section 1. Who may appeal. — Any party may
authenticated copies of documents which are appeal from a judgment or final order, unless the
proposed to be introduced in evidence. Notice of accused will be placed in double jeopardy. (2a)
the motion for new trial or reconsideration shall be
given to the prosecutor. (4a) APPEAL
It is a proceeding for review by which the whole
Note: While the rule requires that an affidavit of case is transferred to the higher court for final
merits must be attached to support a motion for determination.
new trial based on newly discovered evidence,
yet the defect or lack of it may be cured by An appeal is not an inherent right of a person. The
testimony under oath of the defendant at the right to appeal is and always has been statutory.
hearing of the motion (Paredes vs. Borja 3
SCRA 495) Only final orders or judgments are appealable.
An order granting new trial in criminal cases is

Section 5. Hearing on motion. — Where a appealable (P. vs. CA, 82 SCRA 607).
motion for a new trial calls for resolution of any
question of fact, the court may hear evidence EFFECT OF AN APPEAL
thereon by affidavits or otherwise. (5a) An appeal in a criminal case opens the whole
case for review and this includes the review of the
Section 6. Effects of granting a new trial or penalty, indemnity, and the damages involved.
reconsideration. — The effects of granting a new Consequently, on appeal, the appellate court may
trial or reconsideration are the following: increase the penalty, indemnity, or damages
awarded by the trial court, although the offended

________________________________________________________________________________________________
party had not appealed from such award, and the a) What are the modes of appeal to the Supreme
party who sought a review is the accused. Court? (2%)
b) Comment on a proposal to amend Rule 122,
From the judgment of conviction, two appeals may Section 2(b), in relation to Section 3(c), of the Revised
be accordingly be taken: Rules of Criminal Procedure to provide for appeal to
1. The accused may seek review of said the Court of Appeals from the decisions of the RTC in
judgment, as regards both action; or criminal cases, where the penalty imposed is reclusion
2. The complainant may appeal with respect perpetua or life imprisonment, subject to the right of
to the civil liability, either because the the accused to appeal to the Supreme Court. (3%)
lower court has refused of failed to award SUGGESTED ANSWER:
damages, or because the award is A. The modes of appeal to the Supreme Court are:
unsatisfactory to him. (a) APPEAL BY CERTIORARI on pure questions of
law under Rule 45 through a petition for review
For discussion on the right of the prosecution to oncertiorari; and
appeal, see discussions on double jeopardy. (b) ORDINARY APPEAL in criminal cases through a
notice of appeal from convictions imposing reclusion
GR: A private prosecutor in a criminal case has no perpetua or life imprisonment or where a lesser
authority to act for the People before the court on penalty is involved but for offenses committed on the
appeal. It is the government’s counsel, the Solgen, same occasion or which arose out of the same
who appears in criminal cases or their incidents occurrence that gave rise to the more serious offense.
before the SC. At the very least, the provincial (Rule 122, sec. 3) Convictions imposing the death penalty
prosecutor himself, with the conformity of the are elevated through automatic review.
solgen, shall act for the People. B. There is no constitutional objection to providing in
the Rules of Court for an appeal to the Court of
Exception: The civil award may be appealed by Appeals from the decisions of the RTC in criminal
the private prosecutor on behalf of the offended cases where the penalty imposed is reclusion perpetua
party or his successors.
or life imprisonment subject to the right of the accused
to appeal to the Supreme Court, because it does not
Plea of double jeopardy in certiorari is premature.
deprive the Supreme Court of the right to exercise
Where the validity of the orders of dismissal is
precisely the issue, the preliminary issue of
ultimate review of the judgments in such cases.
whether or not double jeopardy is available in
certiorari is premature. If the order of dismissal is
upheld, there is double jeopardy for subsequent Section 3. How appeal taken. —
prosecution. If order of dismissal is invalidated,
there is no double jeopardy (P. vs. Castañeda, GR (a) The appeal to the Regional Trial Court, or
NO. L-46882 Sept. 15, 1988). to the Court of Appeals in cases decided by
the Regional Trial Court in the exercise of its
original jurisdiction, shall be taken by filing a
Section 2. Where to appeal. — The appeal may notice of appeal with the court which
be taken as follows: rendered the judgment or final order appealed
from and by serving a copy thereof upon the
(a) To the Regional Trial Court, in cases adverse party.
decided by the Metropolitan Trial Court,
Municipal Trial Court in Cities, Municipal Trial (b) The appeal to the Court of Appeals in
Court, or Municipal Circuit Trial Court; cases decided by the Regional Trial Court in
the exercise of its appellate jurisdiction shall
be by petition for review under Rule 42.
(b) To the Court of Appeals or to the Supreme
Court in the proper cases provided by law, in
cases decided by the Regional Trial Court; (c) The appeal to the Supreme Court in cases
and where the penalty imposed by the Regional
Trial Court is death, reclusion perpetua, or life
(c) To the Supreme Court, in cases decided imprisonment, or where a lesser penalty is
by the Court of Appeals. (1a) imposed but for offenses committed on the
same occasion or which arose out of the
same occurrence that gave rise to the more
serious offense for which the penalty of death,
reclusion perpetua, or life imprisonment is
Remedies; Appeal to SC; Appeals to CA (2002) imposed, shall be by filing a notice of appeal
________________________________________________________________________________________________
in accordance with paragraph (a) of this and service by mail. The service is complete at the
section. time of such delivery.
PUBLICATION OF NOTICE OF APPEAL

(d) No notice of appeal is necessary in cases
where the death penalty is imposed by the If copy of the notice of appeal cannot be served
Regional Trial Court. The same shall be on the adverse party or his counsel, it may be
automatically reviewed by the Supreme done by publication.
Court as provided in section 10 of this Rule.
Service by publication is made in a newspaper
of general circulation in the vicinity once a week
(e) Except as provided in the last paragraph of for a period not exceeding 30 days (Pamaran, p.
section 13, Rule 124, all other appeals to the 636).
Supreme Court shall be by petition for review
on certiorari under Rules 45. (3a) Notice of appeal must be in writing and filed with
the clerk of court (US. Vs. Tenorio, 37Phil. 7).
NOTE: Appeals falling under subsection (c) and
(d) was subsequently transferred to the CA (AM However verbal notice of appeal made in open
NO. 00-5-03-SC, Oct. 15, 2004). court together with the filing of the bond
constitute substantial compliance with the Rules
However, with the abolition of death penalty, there (P. vs. Agasang, 99 Phil. 11).
is no more automatic appeal.
Notice of appeal by registered mail is valid
MODES OF REVIEW (Yangco vs. Ocampo, 57 Phil. 1).
The Rules recognizes 4 modes by which the
decision or final order of the court may be Section 5. Waiver of notice. — The appellee may
reviewed by a higher tribunal, viz.: waive his right to a notice that an appeal has been
1. Ordinary appeal; taken. The appellate court may, in its discretion,
2. Petition for review (appeal from decision entertain an appeal notwithstanding failure to give
rendered on the courts appellate such notice if the interests of justice so require.
jurisdiction); (5a)
3. Petition for review on certiorari (pure
questions of law-Rule 45); Section 6. When appeal to be taken. — An
4. Automatic appeal(death penalty). appeal must be taken within fifteen (15) days from
promulgation of the judgment or from notice of the
Section 4. Publication of notice of appeal. — If final order appealed from. This period for
personal service of the copy of the notice of perfecting an appeal shall be suspended from the
appeal can not be made upon the adverse party or time a motion for new trial or reconsideration is
his counsel, service may be done by registered filed until notice of the order overruling the motion
mail or by substituted service pursuant to sections shall have been served upon the accused or his
7 and 8 of Rule 13. (4a) counsel at which time the balance of the period
begins to run. (6a)
Section 7. Service by mail. — Service by registered
mail shall be made by depositing the copy in the post NOTE: In computing the period to appeal, the first
office in a sealed envelope, plainly addressed to the
day is excluded and the last day is included.
party or his counsel at his office, if known, otherwise
at his residence, if known, with postage fully prepaid, Should the last day fall on a Sunday or a legal
and with instructions to the postmaster to return the holiday, the period continues to run until the next
mail to the sender after ten (10) days if undelivered. If day which is neither a Sunday nor holiday (sec.
no registry service is available in the locality of either 13, Revised Administrative Code).
the senders or the addressee, service may be done
by ordinary mail. Section 7. Transcribing and filing notes of
stenographic reporter upon appeal. — When
Section 8. Substituted service. — If service of notice of appeal is filed by the accused, the trial
pleadings, motions, notices, resolutions, orders and court shall direct the stenographic reporter to
other papers cannot be made under the two
transcribe his notes of the proceedings. When
preceding sections, the office and place of residence
of the party or his counsel being unknown, service filed by the People of the Philippines, the trial
may be made by delivering the copy to the clerk of court shall direct the stenographic reporter to
court, with proof of failure of both personal service transcribe such portion of his notes of the
proceedings as the court, upon motion, shall

________________________________________________________________________________________________
specify in writing. The stenographic reporter shall shall be forwarded to the Supreme Court for
certify to the correctness of the notes and the automatic review and judgment within five (5) days
transcript thereof, which shall consist of the after the fifteenth (15) day following the
original and four copies, and shall file the original promulgation of the judgment or notice of denial of
and four copies with the clerk without unnecessary a motion for new trial or reconsideration. The
delay. transcript shall also be forwarded within ten (10)
days after the filing thereof by the stenographic
If death penalty is imposed, the stenographic reporter. (10a)
reporter shall, within thirty (30) days from
promulgation of the sentence, file with the clerk Section 11. Effect of appeal by any of several
original and four copies of the duly certified accused. —
transcript of his notes of the proceedings. No
extension of time for filing of said transcript of (a) An appeal taken by one or more of several
stenographic notes shall be granted except by the accused shall not affect those who did not
Supreme Court and only upon justifiable grounds. appeal, except insofar as the judgment of the
(7a) appellate court is favorable and applicable to
the latter;
Section 8. Transmission of papers to appellate
court upon appeal. — Within five (5) days from (b) The appeal of the offended party from the
the filing of the notice of appeal, the clerk of the civil aspect shall not affect the criminal aspect
court with whom the notice of appeal was filed of the judgment or order appealed from.
must transmit to the clerk of court of the appellate
court the complete record of the case, together (c) Upon perfection of the appeal, the
with said notice. The original and three copies of execution of the judgment or final order
the transcript of stenographic notes, together with appealed from shall be stayed as to the
the records, shall also be transmitted to the clerk
appealing party. (11a)
of the appellate court without undue delay. The
other copy of the transcript shall remain in the
lower court. (8a) Section 12. Withdrawal of appeal. —
Notwithstanding the perfection of the appeal, the
Regional Trial Court, Metropolitan Trial Court,
Section 9. Appeal to the Regional Trial Courts.
Municipal Trial Court in Cities, Municipal Trial
— Court, or Municipal Circuit Trial Court, as the case
may be, may allow the appellant to withdraw his
(a) Within five (5) days from perfection of the appeal before the record has been forwarded by
appeal, the clerk of court shall transmit the the clerk of court to the proper appellate court as
original record to the appropriate Regional provided in section 8, in which case the judgment
Trial Court. shall become final.
(b) Upon receipt of the complete record of the The Regional Trial Court may also, in its
case, transcripts and exhibits, the clerk of discretion, allow the appellant from the judgment
court of the Regional Trial Court shall notify of a Metropolitan Trial Court, Municipal Trial Court
the parties of such fact. in Cities, Municipal Trial Court, or Municipal Circuit
Trial Court to withdraw his appeal, provided a
(c) Within fifteen (15) days from receipt of the motion to that effect is filed before rendition of the
said notice, the parties may submit judgment in the case on appeal, in which case the
memoranda or briefs, or may be required by judgment of the court of origin shall become final
the Regional Trial Court to do so. After the and the case shall be remanded to the latter court
submission of such memoranda or briefs, or for execution of the judgment. (12a)
upon the expiration of the period to file the
same, the Regional Trial Court shall decide Section 13. Appointment of counsel de oficio
the case on the basis of the entire record of for accused on appeal. — It shall be the duty of
the case and of such memoranda or briefs as the clerk of the trial court, upon filing of a notice of
may have been filed. (9a) appeal, to ascertain from the appellant, if confined
in prison, whether he desires the Regional Trial
Section 10. Transmission of records in case of Court, Court of Appeals or the Supreme Court to
death penalty. — In all cases where the death appoint a counsel de oficio to defend him and to
penalty is imposed by the trial court, the records transmit with the record on a form to be prepared

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by the clerk of court of the appellate court, a Section 4. When brief for appellee to be filed;
certificate of compliance with this duty and of the reply brief of the appellant. — Within thirty (30)
response of the appellant to his inquiry. (13a) days from the receipt of the brief of the appellant,
the appellee shall file seven (7) copies of the brief
of the appellee with the clerk of court which shall
be accompanied by proof of service of two (2)
copies thereof upon the appellant.
RULE 123 Within twenty (20) days from receipt of the brief
of the appellee, the appellant may file a reply brief
Procedure in the Municipal Trial Courts traversing matters raised in the former but not
covered in the brief of the appellant. (4a)
Section 1. Uniform Procedure. — The procedure
Section 5. Extension of time for filing briefs. —
to be observed in the Metropolitan Trial Courts,
Extension of time for the filing of briefs will not be
Municipal Trial Courts and Municipal Circuit Trial
allowed except for good and sufficient cause and
Courts shall be the same as in the Regional Trial
only if the motion for extension is filed before the
Courts, except where a particular provision applies
expiration of the time sought to be extended. (5a)
only to either of said courts and in criminal cases
governed by the Revised Rule on Summary
Procedure. (1a) Section 6. Form of briefs. — Briefs shall either be
printed, encoded or typewritten in double space on
RULE 124 the legal size good quality unglazed paper, 330
mm. in length by 216 mm. in width. (6a)
Procedure in the Court of Appeals
Section 7. Contents of brief. — The briefs in
criminal cases shall have the same contents as
Section 1. Title of the case. — In all criminal provided in sections 13 and 14 of Rule 44. A
cases appealed to the Court of Appeals, the party certified true copy of the decision or final order
appealing the case shall be called the "appellant" appealed from shall be appended to the brief of
and the adverse party the "appellee," but the title appellant. (7a)
of the case shall remain as it was in the court of
origin. (1a)
Section 8. Dismissal of appeal for
abandonment or failure to prosecute. — The
Section 2. Appointment of counsel de oficio for Court of Appeals may, upon motion of the
the accused. — If it appears from the record of appellee or motu proprio and with notice to the
the case as transmitted that: appellant in either case, dismiss the appeal if
the appellant fails to file his brief within the
(a) the accused is confined in prison, time prescribed by this Rule, except where the
(b) is without counsel de parte on appeal, or appellant is represented by a counsel de oficio.
(c) has signed the notice of appeal himself,
the clerk of court of the Court of Appeals shall The Court of Appeals may also, upon motion of
designate a counsel de oficio. the appellee or motu proprio, dismiss the appeal if
the appellant escapes from prison or confinement,
An appellant who is not confined in prison may, jumps bail or flees to a foreign country during the
upon request, be assigned a counsel de oficio pendency of the appeal. (8a)
within ten (10) days from receipt of the notice to
file brief and he establishes his right thereto. (2a) GROUNDS FOR DISMISSAL OF APPEAL:
1. Failure to file brief (in the CA) within the
Section 3. When brief for appellant to be filed. reglementary period, except when
— Within thirty (30) days from receipt by the represented by counsel de oficio;
appellant or his counsel of the notice from the 2. Escape from prison or confinement;
clerk of court of the Court of Appeals that the 3. Jumping bail;
evidence, oral and documentary, is already 4. Flight to foreign country during the
attached to the record, the appellant shall file pendency of the appeal.
seven (7) copies of his brief with the clerk of court
which shall be accompanied by proof of service of NOTE: In appeals to the CA, the court can validly
two (2) copies thereof upon the appellee. (3a) dismissed the case for failure to file is brief (sec.

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8,Rule 124. However, in appeals to the RTC, the GR: The findings of the judge (who actually
court cannot dismiss the case for failure to file observed the manner the witnesses testified)
brief or memoranda, appellate court shall decide who tried the case and heard the witnesses are
base on the entire record of the case (sec. 9, (c), not disturbed on appeal.
Rule 122).
Exception: When it is shown that the trial court
DISMISSAL OF APPEAL; NEED OF NOTICE TO has overlooked certain facts of substance and
THE APPELANT value that, if considered, might affect the result
The CA may dismiss motu proprio or on motion by of the case (P. vs. Cabiling, 74 SCRA 285).
appellee an appeal for failure on the part of the
appellant to file his brief on time, BUT it must Trial court’s findings on the credibility of the
have a notice served upon the appellant of the witnesses should not be disturbed on appeal
action to be taken by the court before dismissing UNLESS substantial facts which might affect the
motu proprio the appeal. results of the case have been overlooked.
Effect of escape of accused; Abandonment of Bar Exam Question 2013

appeal XII. Findings of fact are generally not
disturbed by the appellate court except in
1. If the convict escapes from prison or cases __________. (1%) (A) where the issue is
confinement or refuses to surrender to the the credibility of the witness (B) where the
proper authorities, jumps bail or flees to a judge who heard the case is not the same
foreign country, he is deemed to have judge who penned the decision (C) where the
abandoned his appeal and the judgment judge heard several witnesses who gave
of the court below becomes final; conflicting testimonies (D) where there are
substantially overlooked facts and
2. In that case, the accused cannot be circumstances that, if properly
afforded the right to appeal, unless he considered, might affect the result of the
voluntarily submits to the jurisdiction of the case (E) None of the above. SUGGESTED
court or is otherwise arrested within 15 ANSWER: (D), In Miranda vs. People, G.R.
days from notice of judgment against him. No. 176298, January 25, 2012, the
Supreme Court explained that absent any
Note: However, prior to the abolition of the death showing that the lower courts overlooked
penalty, if death penalty is imposed, the escape of substantial facts and circumstances,
the accused does not relieve the SC (CA) of the which if considered, would change the
burden of automatically reviewing the case, in the result of the case, the Court should give
same manner that a withdrawal of appeal by a deference to the trial court‟s appreciation
death convict would not remove the case from he of the facts and of the credibility of
jurisdiction of the court (P. vs. Bugnay, 128 SCRA
witness.
31)
Section 11. Scope of judgment. — The Court of

Section 9. Prompt disposition of appeals. —
Appeals may reverse, affirm, or modify the
Appeals of accused who are under detention shall
judgment and increase or reduce the penalty
be given precedence in their disposition over other
imposed by the trial court, remand the case to the
appeals. The Court of Appeals shall hear and
Regional Trial Court for new trial or retrial, or
decide the appeal at the earliest practicable time
dismiss the case. (11a)
with due regard to the rights of the parties. The
accused need not be present in court during the
hearing of the appeal. (9a) All errors, assigned or not should be reviewed
(Suy Sui vs. P., 92 Phil. 684).
Section 10. Judgment not to be reversed or
Conviction for higher offense on appeal; No
modified except for substantial error. — No
double jeopardy (Lontoc vs. P., 74 Phil. 513).
judgment shall be reversed or modified unless the
Court of Appeals, after an examination of the
HOWEVER, the conviction must be limited to
record and of the evidence adduced by the
the crime charge in the information (Babanto vs.
parties, is of the opinion that error was committed
Zosa, 120 SCRA 834).
which injuriously affected the substantial rights of
the appellant. (10a)

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Section 12. Power to receive evidence — The b. Where the judgment also imposes a
Court of Appeals shall have the power to try lesser penalty for offenses committed on
cases and conduct hearings, receive evidence the same occasion or arose out of the
and perform any and all acts necessary to resolve same occurrence that give rise to the
factual issues raised in cases more severe offense for which the penalty
of death was imposed, and the accused
(a) falling within its original jurisdiction, appeals, the appeal shall be certified for
review to the SC;
(b) involving claims for damages arising from
c. In case the CA imposes reclusion
provisional remedies, or
perpetua, life imprisonment or a lesser
penalty, it shall render and enter judgment
(c) where the court grants a new trial based imposing such penalty. The judgment may
only on the ground of newly-discovered be appealed to the CA by notice of appeal
evidence. (12a) filed with the CA.
Section 13. Quorum of the court; certification Section 14. Motion for new trial. — At any time
or appeal of cases to Supreme Court. — Three after the appeal from the lower court has been
(3) Justices of the Court of Appeals shall perfected and before the judgment of the Court of
constitute a quorum for the sessions of a division. Appeals convicting the appellant becomes final,
The unanimous vote of the three (3) Justices of a the latter may move for a new trial on the ground
division shall be necessary for the pronouncement of newly-discovered evidence material to his
of a judgment or final resolution, which shall be defense. The motion shall conform with the
reached in consultation before the writing of the provisions of section 4, Rule 121. (14a)
opinion by a member of the division. In the event
that the three (3) Justices can not reach a
Section 15. Where new trial conducted. —
unanimous vote, the Presiding Justice shall direct
When a new trial is granted, the Court of Appeals
the raffle committee of the Court to designate two
may conduct the hearing and receive evidence as
(2) additional Justices to sit temporarily with them,
provided in section 12 of this Rule or refer the trial
forming a special division of five (5) members and
to the court of origin. (15a)
the concurrence of a majority of such division shall
be necessary for the pronouncement of a
judgment or final resolution. The designation of Section 16. Reconsideration. — A motion for
such additional Justices shall be made strictly by reconsideration shall be filed within fifteen (15)
raffle and rotation among all other Justices of the days after from notice of the decision or final order
Court of Appeals. of the Court of Appeals, with copies served upon
the adverse party, setting forth the grounds in
Whenever the Court of Appeals finds that the support thereof. The mittimus shall be stayed
during the pendency of the motion for
penalty of death, reclusion perpetua, or life
reconsideration.
imprisonment should be imposed in a case, the
court, after discussion of the evidence and the law
involved, shall render judgment imposing the No party shall be allowed a second motion for
penalty of death, reclusion perpetua, or life reconsideration of a judgment or final order. (16a)
imprisonment as the circumstances warrant.
However, it shall refrain from entering the Section 17. Judgment transmitted and filed in
judgment and forthwith certify the case and trial court. — When the entry of judgment of the
elevate the entire record thereof to the Supreme Court of Appeals is issued, a certified true copy of
Court for review. (13a) the judgment shall be attached to the original
record which shall be remanded to the clerk of the
court from which the appeal was taken. (17a)
SECTION 13 (Amended by AM NO. 00-5-03-SC,
Oct. 15, 2004) Section 18. Application of certain rules in civil
a. Whenever the CA finds that the penalty of to criminal cases. — The provisions of Rules 42,
death should be imposed, the court shall 44 to 46 and 48 to 56 relating to procedure in the
render judgment but refrain from making Court of Appeals and in the Supreme Court in
an entry of judgment and forthwith certify original and appealed civil cases shall be applied
the case and elevate its entire record to to criminal cases insofar as they are applicable
the SC for review; and not inconsistent with the provisions of this
Rule. (18a)

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Note: The foregoing rule did not include 4. When the judgment is premised on a
Annulment of Judgment (Rule 47). If the court is misapprehension of facts;
without jurisdiction, the proper remedy is 5. When the findings of facts are conflicting;
certiorari and Habeas corpus. 6. When the CA in making its findings went
beyond the issues of the case and the
same is contrary to the admissions of both
parties;
RULE 125 7. When certain material facts and
circumstances had been overlooked
which, if taken into account would alter the
Procedure in the Supreme Court result as it would give rise to reasonable
doubt to acquit the accused.
See also A.M. No. 10-4-20-SC
THE INTERNAL RULES OF THE SUPREME Section 3. Decision if opinion is equally
COURT divided. — When the Supreme Court en banc is
equally divided in opinion or the necessary
Section 1. Uniform procedure. — Unless majority cannot be had on whether to acquit the
otherwise provided by the Constitution or by law, appellant, the case shall again be deliberated
the procedure in the Supreme Court in original upon and if no decision is reached after re-
and in appealed cases shall be the same as in the deliberation, the judgment of conviction of the
Court of Appeals. (1a) lower court shall be reversed and the accused
acquitted. (3a)
NOTE: A case may reach the SC in the following
manner:
1. Automatic review;
2. Ordinary appeal; RULE 126
3. Petition for review on certiorari.
Search and Seizure
EFFECT OF DIRECT APPEAL TO THE
SUPREME COURT ON QUESTION OF LAW IN
CRIMINAL CASES Section 2, art III, 1987 Const.. The right of the
A direct appeal to the SC on questions of law, in people to be secure in their persons, houses,
criminal cases in which the penalty imposed is not papers, and effects against unreasonable
death or life imprisonment, precludes a review of searches and seizures of whatever nature and for
the facts.
any purpose shall be inviolable, and no search
Cases involving both questions of law and fact warrant or warrant of arrest shall issue except
come within the jurisdiction of the CA. upon probable cause to be determined personally
by the judge after examination under oath or
affirmation of the complainant and the witnesses
he may produce, and particularly describing the
Section 2. Review of decisions of the Court of place to be searched and the persons or things to
Appeals. — The procedure for the review by the be seized.
Supreme Court of decisions in criminal cases
rendered by the Court of Appeals shall be the
Crimes that may arose in violation of the
same as in civil cases. (2a)
constitutional grant:
1. Trespassing--- if committed by private
GR: Finding of facts of the CA is conclusive upon individual;
the SC. 2. Violation of Domicile--- if committed by
public officers;
EXCEPTIONS: 3. Grave coercion--- when proper; search is
1. When the conclusion is a finding not in the domicile.
grounded entirely on speculation,
surmises or conjectures; Compliance with the constitutional requirements
2. When the inference made is manifestly are mandatory. Presumption of regularity in the
absurd, mistaken or impossible; performance of duty is not applicable in search
3. When there is grave abuse of discretion in warrant cases.
the appreciation of facts;

________________________________________________________________________________________________
Note: Bill of Rights is invoked ONLY AGAINST region where the warrant shall be
the STATE and its AGENTS. enforced.
Section 1. Search warrant defined. — A search However, if the criminal action has already been
warrant is an order in writing issued in the name of filed, the application shall only be made in the
the People of the Philippines, signed by a judge court where the criminal action is pending. (n)
and directed to a peace officer, commanding him
to search for personal property described therein NOTE: The rule on forum shopping is not
and bring it before the court. (1) applied in the application for search warrant
(Kenneth Roy Savage vs. Judge Taypin, GR
WARRANT OF SEARCH WARRANT NO. 134217, May 11, 2000).
ARREST
Probable cause that a Probable cause that the However, under the Intellectual Property Code,
crime has been objects, in connection if offense subject of the search is violation of
committed and the to a specific offense, of intellectual property rights, certification is
person sought to be the search warrant is required.
arrested is probably found in the place
guilty thereof sought to be searched Search Warrant; Application; Venue (2012)
Issued, generally, when May issue even without No.VI. A PDEA asset/informant tipped the
a case is filed in court a pending case in court PDEA Director Shabunot that a shabu
The judge must Judge must personally laboratory was operating in a house at Sta.
personally evaluate the examine the Cruz, Laguna, rented by two (2) Chinese
records of the case and complainant and the nationals, Ho Pia and Sio Pao. PDEA Director
the report of the witnesses under oath in Shabunot wants to apply for a search
prosecutor (no need for the form of searching warrant, but he is worried that if he applies
personal examination of questions and answers for a search warrant in any Laguna court,
the complainant and their plan might leak out. (a) Where can he
witnesses file an application for search warrant? (2%)
Not subject to 10 days Lifetime of 10 days SUGGESTED ANSWER: PDEA Director
lifetime from issue Shabunot may file an application for
search warrant in any court within the
Bar Exam Question 2011 judicial region where the crime was
(50) Which of the following MISSTATES a committed. (Rule 126, Sec.2[b]).
requisite for the issuance of a search ALTERNATIVE ANSWER: PDEA Director
warrant? (A) The warrant specifically Shabunot may file an application for
describes the place to be searched and the search warrant before the Executive Judge
things to be seized. (B) Presence of probable and Vice Executive Judges of the Regional
cause. (C) The warrant issues in connection Trial Courts of Manila or Quezon Cities.
with one specific offense. (D) Judge (A.M. No. 99-10-09-SC, January 25, 2000).
determines probable cause upon the
affidavits of the complainant and his (b) What documents should he prepare in his
witnesses. application for search warrant? (2%)
SUGGESTED ANSWER: He should prepare
a petition for issuance of a search warrant
Section 2. Court where application for search and attach therein sworn statements and
warrant shall be filed. — An application for affidavits.
search warrant shall be filed with the following:
(c) Describe the procedure that should be
a) Any court within whose territorial taken by the judge on the application. (2%)
jurisdiction a crime was committed. SUGGESTED ANSWER: The judge must,
before issuing the warrant, examine
personally in the form of searching
b) For compelling reasons stated in the
application, any court within the judicial questions and answers, in writing and
region where the crime was committed if under oath, the complainant and the
the place of the commission of the crime witnesses he may produce on facts
is known, or any court within the judicial personally known to them and attach to
the record their sworn statements,
together with the affidavits submitted.

________________________________________________________________________________________________
(Rule 126, Sec.5, Rules of Court). if the at night when it is positively asserted in
judge is satisfied of the existence of facts the affidavit that the property is on the
upon which the application is based or person or in the place ordered to be
that there is probable cause to believe searched (Alvares vs. CFI of Tayabas, 64
that they exist, he shall issue the warrant, Phil. 33). There is no showing that the
which must be substantially in the form exception applies.
prescribed by the Rules. (Rule 126, Sec.6,
Rules of Court). (e) Suppose the search warrant was served
Suppose the judge issues the search warrant on March 15, 2012 and the search yielded
worded in this way: the described contraband and a case was
PEOPLE OF THE PHILIPPINES Plaintiff filed against the accused in RTC, Sta. Cruz,
-versus- Criminal Case Laguna and you are the lawyer of Sio Pao
No. 007 for and Ho Pia, what will you do? (3%)
Violation of R.A. SUGGESTED ANSWER: If I were the lawyer
9165 of Sio Pao and Ho Pia, I would file a
Ho Pia and Sio Pao, Accused. Motion to Quash the search warrant for
having been served beyond its period of
TO ANY PEACE OFFICER validity. (Rule 126, Sec. 14, Rules of
Greetings: It appearing to the satisfaction of Court). A search warrant shall be valid
the undersigned after examining under oath only for ten (10) days from its date.
PDEA Director shabunot that there is Thereafter, it shall be void. (Rule 126,
probable cause to believe that violations of Sec.10, Revised Rules of Court).
Section 18 and 16 of R.A. 9165 have been
committed and that there are good and (f) Suppose an unlicensed armalite was found
sufficient reasons to believe that Ho Pia and in plain view by the searchers and the
Sio Pao have in their possession or control, in warrant was ordered quashed, should the
a two (2) door apartment with an iron gate court order the return of the same to the
located at Jupiter St., Sta. Cruz, Laguna, Chinese nationals? Explain your answer.
undetermined amount of "shabu" and drug (3%) SUGGESTED ANSWER: No, the court
manufacturing implements and should not order the return of the
paraphernalia which should be seized and unlicensed armalite because it is
brought to the undersigned, You are hereby contraband or illegal per se. (PDEA vs.
commanded to make an immediate search, at Brodett, G.R. No. 196390, September 28,
any time in the day or night, of the premises 2011). The possession of an unlicensed
above described and forthwith seize and take armalite found in plain view is mala
possession of the abovementioned personal prohibita. The same should be kept in
property, and bring said property to the custodial legis.
undersigned to be dealt with as the law
directs. Witness my hand this 1st day of
March, 2012. (signed) Judge XYZ
Section 3. Personal property to be seized. — A
(d) Cite/enumerate the defects, if any, of the search warrant may be issued for the search and
search warrant. (3%) seizure of personal property:
SUGGESTED ANSWER: (1) The search
warrant failed to particularly describe the (a) Subject of the offense;
place to be searched and the things to be
seized (Rule 126, Sec.4, Rules of Court). (b) Stolen or embezzled and other
(2) The search warrant commanded the proceeds, or fruits of the offense; or
immediate search, at any time in the day
or night. The general rule is that a search (c) Used or intended to be used as the
warrant must be served in the day time means of committing an offense. (2a)
(Rule 126, Sec.8, Revised Rules on
Criminal Procedure), or that portion of the
Note: The rule does not require that the property
twenty-four hours in which a man‟s to be seized should be owned by the person
person and countenance are against whom the search warrant is directed. It
distinguishable (17 C.J. 1134). By way of may or may not be owned by him.
exception, a search warrant may be made

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In search incidental to an arrest even without a Santos and the seizure of an undetermined amount of
warrant the person arrested may be searched for: shabu. The team arrived at the house of Santos but
1. Dangerous weapons; failed to find him there. Instead, the team found
2. Anything which may be used as proof of Roberto Co. The team conducted a search in the
the commission of an offense. house of Santos in the presence of Roberto Co and
barangay officials and found ten (10) grams of shabu.
Section 4. Requisites for issuing search Roberto Co was charged in court with illegal
warrant. — A search warrant shall not issue possession of ten grams of shabu. Before his
except upon probable cause in connection with arraignment, Roberto Co filed a motion to quash the
one specific offense to be determined personally warrant on the following grounds
by the judge after examination under oath or (a) it was not the accused named in the search warrant;
affirmation of the complainant and the witnesses and (b) the warrant does not describe the article to be
he may produce, and particularly describing the seized with sufficient particularity. Resolve the motion
place to be searched and the things to be seized with reasons. (4%)
which may be anywhere in the Philippines. (3a) SUGGESTED ANSWER:
The motion to quash should be denied. The name of
REQUISITES: (clue words) the person in the search warrant is not important. It is
not even necessary that a particular person be
1. Issued upon probable cause; implicated (Mantaring v. Roman, A.M. No. RTJ-93-904,
2. Probable cause determined by the judge; February 28, 1996), so long as the search is conducted in
3. Personal examination, under oath or the place where the search warrant will be served.
affirmation, of the applicant and the Moreover, describing the shabu in an undetermined
witnesses, in the form of searching amount is sufficiently particular. (People v. Tee, G.R.
questions and answers; Nos. 140546-47, January 20, 2003)
4. Particular description of the property to be
seized;
5. Particular description of the place, or WHO MAY QUESTION THE VALIDITY OF
persons to be searched; SEARCH AND SEIZURE
6. Issued for one specific offense; Well settled is the rule that the legality of a seizure
7. It must be served within 10 days from can be contested only by the party whose rights
issue. have been impaired thereby, and that the
objection to an unlawful search and seizure is
PROBABLE CAUSE (in search and seizure purely personal and cannot be availed of by third
cases) parties.
It refers to the facts and circumstances which
could lead a reasonable , discreet and prudent REMEDIES FROM AN UNLAWFUL SEARCH:
man to believe that the property subject of an 1. A motion to quash the search warrant;
offense is in the place sought to be searched. 2. A motion to suppress as evidence the
objects illegally taken;
Affidavits of complainant and his witnesses is not 3. Repliven, if the objects are legally
sufficient for the issuance of search warrant. possessed.
Judge should take the depositions of the
witnesses and the complainant and attached them Note: The remedies are alterative. If a motion to
to the record of the case (Mata vs. Bayona, 128 quash is denied, a motion to suppress cannot be
SCRA 388). availed subsequently.
Certification of absence of license to possess, Where the search warrant is a patent nullity,
from the Firearms and Explosives Division of the certiorari lies to nullify the same.
PNP, is needed in the application for search
warrant for illegal possession of firearms. The illegality of the search does not call for the
return of the things seized, the possession of
In case of firearms search, there must be a sketch which is prohibited by law. However, those
where such firearm is located (Ucat). personalties seized in violation of the
constitutional immunity whose possession is not
Search Warrant; Motion to Quash (2005) per se illegal or unlawful ought to be returned to
Police operatives of the Western Police District, their rightful owner or possessor.
Philippine National Police, applied for a search
warrant in the RTC for the search of the house of Juan Any evidence obtained in violation of the
constitutional immunity against unreasonable

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searches and seizures are inadmissible for any must be under oath may not be in public. It may
purpose in any proceeding (sec. 2, art. III, 1987 even be held in the secrecy of the chambers. It
Const.). must be under oath and in writing.
However, they may be used against the person Section 6. Issuance and form of search
violating the constitutional grant against warrant. — If the judge is satisfied of the
unreasonable searches and seizures. existence of facts upon which the application is
based or that there is probable cause to believe
General warrants (without particular description that they exist, he shall issue the warrant, which
of the things to be seized) are void. must be substantially in the form prescribed by
these Rules. (5a)
Note: However, that search warrant is severable.
The general description of some objects does not NOTE: The search warrant must be in writing
render the entire warrant void. Things particularly and must contain such particulars as name of
described can still be sustained while those the person against whom it is directed, the
generally described may just be cut-off from the offense for which it was issued, the place to be
warrant (Uy vs. BIR, Oct. 20, 2000). search and the specific things to be seized.
There is particular description of the thing to
Search warrant cannot issue against diplomatic
be seized when: (PARTICULARITY TEST)
officers (WHO vs. Aquino, 48 SCRA
242).[Diplomatic/Sovereign Immunity]
1. The description is as specific as
circumstances will allow; Bar Exam Question 2012
However, particular description of
99. A certificate against Forum-Shopping is
caliber or type of weapon is not
not required in:
necessary
a. petitions for probate of will.
Mathematical certainty of the grams of
b. application for search warrant.
shabu subject of the search warrant is not
c. complaint-in-intervention.
necessary
d. petition for Writ of Kalikasan.
2. When it expresses a conclusion of fact by SUGGESTED ANSWER: (b), A certification
which the warrant officer may be guided; against forum shopping is not required in
or an application for search warrant. The
Rules of Court, require only initiatory
3. When the things described are limited to pleading to be accompanied with a
those which bear a direct relation to the certificate of non-forum shopping
offense for which the warrant is issued. omitting any mention of “applications” as
in Supreme Court No. 04-94. Hence, the
absence of such certification will not
“MULTI-FACTOR BALANCING TEST” in result in the dismissal of the application
determining probable cause: for search warrant. (Savage vs. Judge A.B.
One which require the officer to weigh the manner Taypin, G.R. No. 134217, May 11, 2000).
and intensity of the interference on the right of the
people, the gravity of the crime committed, and
the circumstances attending the incident. Section 7. Right to break door or window to
effect search. — The officer, if refused
admittance to the place of directed search after
Section 5. Examination of complainant; record. giving notice of his purpose and authority, may
— The judge must, before issuing the warrant, break open any outer or inner door or window of a
personally examine in the form of searching house or any part of a house or anything therein to
questions and answers, in writing and under oath, execute the warrant or liberate himself or any
the complainant and the witnesses he may person lawfully aiding him when unlawfully
produce on facts personally known to them and detained therein. (6)
attach to the record their sworn statements,
together with the affidavits submitted. (4a) KNOCK AND ANNOUNCE PRINCIPLE
Generally, officers implementing a search warrant
NOTE: An application for search warrant is must announce their presence, identify
heard ex parte. It is neither a trial nor a part of themselves to the accused and the persons who
the trial. The examination or investigation, which rightfully have possession of the premises to be

________________________________________________________________________________________________
searched, and to show to them the search warrant Art. 130, RPC. Searching domicile without
to be implemented by them and to explain to them witnesses. — The penalty of arresto mayor in its
said warrant in a language or dialect known and medium and maximum periods shall be imposed
understood by them. upon a public officer or employee who, in cases
where a search is proper, shall search the
Unannounced intrusion into the premises is domicile, papers or other belongings of any
permissible only when: person, in the absence of the latter, any member
1. The person whose premises or is entitled of his family, or in their default, without the
to the possession thereof refuses, upon presence of two witnesses residing in the same
demand to open it; locality.
2. When such person in the premises knew
the identity of the officers and of their Section 9. Time of making search. — The
authority; warrant must direct that it be served in the day
3. When the officers are justified, in the time, unless the affidavit asserts that the property
honest belief that there is an imminent is on the person or in the place ordered to be
peril to life or limb; searched, in which case a direction may be
4. When those in the premises, aware of the inserted that it be served at any time of the day or
presence of someone outside, are then night. (8)
engage in activities which justifies the
officers to believe that an escape or Section 10. Validity of search warrant. — A
destruction of evidence is imminent search warrant shall be valid for ten (10) days
(Vallejo vs. CA, GR NO. 156413, April 14, from its date. Thereafter it shall be void. (9a)
2004).
NOTE: While under sec. 10 search warrant has
a validity of 10 days, nevertheless, it cannot be
Art. 129, RPC. Search warrants maliciously
used everyday of said period and once articles
obtained and abuse in the service of those
have been seized under said warrant, it cannot
legally obtained. — In addition to the liability
be used again for another search and seizure,
attaching to the offender for the commission
EXCEPT when the search conducted on one
of any other offense, the penalty of arresto
day was interrupted, in which case the same
mayor in its maximum period to prision
may be continued under the same warrant the
ceeding P1,000 pesos shall be imposed upon
following day if not beyond the 10 day period
any public officer or employee who shall
(Uy Kheytin vs. Villareal, 42 Phil. 886).
procure a searcorreccional in its minimum
period and a fine not exch warrant without just
cause, or, having legally procured the same,
11. The validity of a search warrant is days:
shall exceed his authority or use unnecessary
a. 15;
severity in executing the same.
b. 30;
c. 60;
Section 8. Search of house, room, or premise d. 120.
to be made in presence of two witnesses. — SUGGESTED ANSWER: NO CORRECT
No search of a house, room, or any other premise ANSWER. The Committee recommends
shall be made except in the presence of the lawful that the examinee be given a full credit for
occupant thereof or any member of his family or in any answer to the question. Validity of a
the absence of the latter, two witnesses of
Search Warrant.- A search warrant shall be
sufficient age and discretion residing in the same valid for ten (10) days from its date.
locality. (7a)
Thereafter, it shall be void. (Rule 126, Sec.
10, Rules of Court).
REASON: In order to insure that the execution
of the warrant will be fair and reasonable, and in Bar Exam Question 2012
order to insure that the officer conducting the 44. Which of the following is true?
search shall not exceed his authority or use a. Summons expires after 5 days from issue.
unnecessary severity in executing the search b. Writ of Execution expires after 10 days
warrant, as well as for the protection of the from issue.
officers against unjust accusations of planting
c. Search Warrant expires after 20 days from
evidence.
issue.
d. Subpoena expires after 30 days from issue.
SUGGESTED ANSWER:

________________________________________________________________________________________________
NO CORRECT ANSWER. The Committee been used or constitute proof in the commission of
recommends that the examinee be given an offense without a search warrant. (12a)
full credit for any answer to the question.
ALTERNATIVE ANSWER: (c), According to WHEN MAY THERE BE A SEARCH WITHOUT A
the Committee, this it the most logical WARRANT:
answer because search warrant expires 10
days after its issuance. 1. In times of war, within the area of military
operation (exceptional circumstances);
2. As an incident of a lawful arrest subject

Section 11. Receipt for the property seized. — to the following requisites:
The officer seizing property under the warrant a. Arrest must be lawful;
must give a detailed receipt for the same to the b. Search and search and seizure
lawful occupant of the premises in whose must be contemporaneous with
presence the search and seizure were made, or in the arrest;
the absence of such occupant, must, in the c. Search must be within the
presence of at least two witnesses of sufficient permissible area or within the
age and discretion residing in the same locality, immediate control of the accused;
leave a receipt in the place in which he found the
seized property. (10a) 3. Under plain view doctrine—prohibited
articles open to eye and hand;
NOTE: The person searched or found in the
area searched may not be compelled to sign REQUISITES:
the receipt, otherwise, his right against self a) Prior valid intrusion based on the
incrimination is violated. valid warrantless arrest in which
the police are legally present in
Section 12. Delivery of property and the pursuit of their official
inventory thereof to court; return and functions;
proceedings thereon. — (a) The officer must b) The evidence is inadvertently
forthwith deliver the property seized to the discovered;
judge who issued the warrant, together with a c) Evidence is immediately apparent
true inventory thereof duly verified under oath. without any further search;
d) Apparent illegality of the
(b) Ten (10) days after issuance of the search evidence.
warrant, the issuing judge shall ascertain if the
return has been made, and if none, shall Search & Seizure; Plain View (2008)
summon the person to whom the warrant was No.IX. The search warrant authorized the
issued and require him to explain why no seizure of “undetermined quantity of shabu.”
return was made. If the return has been made, During the service of the search warrant, the
the judge shall ascertain whether section 11 of raiding team also recovered a kilo of dried
this Rule has been complied with and shall marijuana leaves wrapped in newsprint. The
require that the property seized be delivered accused moved to suppress the marijuana
to him. The judge shall see to it that leaves as evidence for the violation of Section
subsection (a) hereof has been complied with. 11 of the Comprehensive Dangerous Drugs
Act of 2002 since they were not covered by
(c) The return on the search warrant shall be the search warrant. The State justified the
filed and kept by the custodian of the log book seizure of the marijuana leaves under the
on search warrants who shall enter therein the “plain view” doctrine. There was no indication
date of the return, the result, and other actions of whether the marijuana leaves were
of the judge. discovered and seized before or after the
seizure of the shabu. If you are the judge,
A violation of this section shall constitute contempt how would you rule on the motion to
of court.(11a) suppress? SUGGESTED ANSWER: The
“plain view” doctrine cannot be invoked
Section 13. Search incident to lawful arrest. — because the marijuana leaves were
A person lawfully arrested may be searched for wrapped in newsprint and there was no
dangerous weapons or anything which may have evidence as to whether the marijuana

________________________________________________________________________________________________
leaves were discovered and seized before the respondent in an administrative case
or after the seizure of the shabu. If they (misconduct), was held reasonable by SC
were discovered after the seizure of the under the circumstances. There was no
shabu, then the marijuana could not have violation of the constitutional right to
been seized in plain view (CF. Peo vs. Mua, privacy as guaranteed by section 2, Article
G.R. No. 96177, 27 January 1997). In any III of the Constitution. (Pollo vs.
case, the marijuana should be confiscated Constantino-David, GR No. 181881, Oct.
as a prohibited article. 18, 2011, En Banc).
Search & Seizure; Warrantless Search

4. Consented search; subject to the (2010)
following : No.VII. As Cicero was walking down a dark
a. There is a right; alley one midnight, he saw an "owner-type
b. There must be knowledge of the jeepney" approaching him. Sensing that the
existence of the right; occupants of the vehicle were up to no good,
c. There must be intent to waive he darted into a corner and ran. The
such right. occupants of the vehicle − elements from the
Western Police District − gave chase and
Note: Silence and lack of apprehended him. The police apprehended
objection is not tantamount to Cicero, frisked him and found a sachet of
consent. 0.09 gram of shabu tucked in his waist and a
Swiss knife in his secret pocket, and detained
him thereafter. Is the arrest and body-search
5. When it is pursuant to some inspection legal? (3%) SUGGESTED ANSWER: The
as mandated by law—like: arrest and body-search was legal. Cicero
a) Fire safety inspection; appears to be alone „walking down the
b) Sanitary inspection; dark alley” and at midnight. There
c) Visitorial Power of the Regional appears probable cause for the policemen
Director, under the Labor Code. to check him, especially when he darted
6. Under the Tariff and Customs Code for into a corner (presumably also dark) and
purposes of enforcing customs and tariff run under such circumstance.
laws; Although the arrest came after the body-
search where Cicero was found with shabu
Except: Dwelling house. and a Swiss knife, the body-search is legal
under the “Terry search” rule or the “stop
7. Search and seizures of vessels and and frisk” rule. And because the mere
aircraft;
possession, with animus, of dangerous
drug (the shabu) is a violation of the law
Note: Routinary airport inspection under
(R.A. 9165), the suspect is in a continuing
RA 6235.
state of committing a crime while he is
8. Search of moving vehicle;
illegally possessing the dangerous drug,
a. Extensive search—when there is
thus making the arrest tantamount to an
probable cause;
arrest in flagrante: so the arrest is legal
b. Routinary search--- mere visual
search (checkpoint search) and correspondingly, the search and
seizure of the shabu and the concealed
9. Search by private individuals/institution knife may be regarded as incident to a
a) Malls; lawful arrest.
b) Department stores. ALTERNATIVE ANSWER: No, the arrest
10. Stop and Frisk Rule (Terry Doctrine) and the body-search were not legal. In this
Terry vs. Ohio, 392 US 1 case, Cicero did not run because the
occupants of the vehicle identified
11. Search of an office computer assigned to themselves as police officers. He darted
a government employee. into the corner and ran upon the belief
that the occupants of the vehicle were up
to no good. Cicero‟s act of running does
The search of office computer, where
not show any reasonable ground to believe
personal files were stored and used by the
that a crime has been committed or is
government employer as evidence against
________________________________________________________________________________________________
about to be committed for the police had allowed direct recourse to it or even
officers to apprehend him and conduct to the Court of Appeals via a special civil
body search. Hence, the arrest was illegal action for certiorari from a trial court‟s
as it does not fall under any of the quashal of search warrant.
circumstances for a valid warrantless
arrest provided in Sec. 5 of Rule 113 of More SUBSTANTIAL DISCUSSIONS on search
the Rules of Criminal Procedure. and seizure are found in the Political Law
Review.
Section 14. Motion to quash a search warrant

or to suppress evidence; where to file. — A RULE 127
motion to quash a search warrant and/or to
suppress evidence obtained thereby may be filed Provisional Remedies in Criminal Cases
in and acted upon only by the court where the
action has been instituted. If no criminal action has Section 1. Availability of provisional remedies.
been instituted, the motion may be filed in and — The provisional remedies in civil actions,
resolved by the court that issued the search insofar as they are applicable, may be availed of
warrant. However, if such court failed to resolve in connection with the civil action deemed
the motion and a criminal case is subsequent filed instituted with the criminal action. (1a)
in another court, the motion shall be resolved by
the latter court. (n)
KINDS OF PROVISIONAL REMEDIES:
1. Attachment (Rule 57);
REMEDIES AGAINST SEARCH WARRANT 2. Injunction (Rule 58);
3. Receivership (Rule 59);
1. If not yet enforced--- Motion to Quash the 4. Repliven (Rule 60);
warrant; 5. Support pendente lite (Rule 61).
2. If already served--- Motion to Suppress
Evidence; if denied;
3. Object to it during the formal offer of the Section 2. Attachment. — When the civil action is
evidence during trial. properly instituted in the criminal action as
provided in Rule 111, the offended party may have
the property of the accused attached as security
Bar Exam Question 2012 for the satisfaction of any judgment that may be
recovered from the accused in the following
79. When a Motion to Quash search warrant
cases:
is denied, the best remedy is:
a. appeal the denial order.
(a) When the accused is about to abscond
b. file a motion to suppress evidence. from the Philippines;
c. file an injunction suit.
(b) When the criminal action is based on a
d. file a certiorari petition. claim for money or property embezzled or
SUGGESTED ANSWER: (b), When a motion fraudulently misapplied or converted to
to quash search warrant is denied, the the use of the accused who is a public
best remedy is to file a motion to suppress officer, officer of a corporation, attorney,
evidence since they are alternative and factor, broker, agent, or clerk, in the
not cumulative remedies. (Regalado, course of his employment as such, or by
Remedial law Compendium, 2004 Edition, any other person in a fiduciary capacity, or
Tenth Edition, page 662). ALTERNATIVE for a willful violation of duty;
ANSWER: (d), In Santos vs. Pryce gases
Inc. G.R. No. 165122, November 23, 2007, (c) When the accused has concealed,
the Supreme Court held that the special removed, or disposed of his property, or is
civil action for certiorari is the proper about to do so; and
recourse in assailing the quashal of the
search warrant. The Trial court‟s (d)When the accused resides outside the
unwarranted reversal of its earlier finding Philippines. (2a)
of probable cause constituted grave abuse
of discretion. Hence, the Supreme Court

________________________________________________________________________________________________

XVII. When is attachment improper in
criminal cases? (1%) (A) When the accused is
about to abscond from the Philippines. (B)
When the criminal action is based on a claim
for money or property embezzled or
fraudulently misapplied or converted to the
use of the accused who is a broker, in the
course of his employment as such. (C) When
the accused is about to conceal, remove, or
dispose of his property. (D) When the
accused resides outside the jurisdiction of
the trial court. SUGGESTED ANSWER:
(D), Under Section 2 of Rule 127, when the
civil action is properly instituted in the
criminal action as provided in Rule 111,
the offended party may have the property
of the accused attached as security for the
satisfaction of any judgment that may be
recovered from the accused in the
following cases: (a) When the accused is
about to abscond from the Philippines; (b)
When the criminal action is based on a
claim for money or property embezzled or
fraudulently misapplied or converted to
the use of the accused who is a public
officer, officer of a corporation, attorney,
factor, broker, agent, or clerk, in the
course of his employment as such, or by
any other person in a fiduciary capacity,
or for a wilful violation of duty; (c) When
the accused has concealed, removed, or
disposed of his property, or is about to do
so; and (d) When the accused resides
outside the Philippines.

________________________________________________________________________________________________
Legislative facts and adjudicative facts.

SUGGESTED ANSWER:
Legislative facts refer to facts mentioned in a statute or
Rules 128-134 in an explanatory note, while adjudicative facts are
REVISED RULES ON EVIDENCE facts found in a court decision.
Every question involves the relationship between

AS AMENDED PER RESOLUTION the factum probans and the factum probandum.
FACTUM PROBANDUM
ADOPTED ON MARCH 14, 1989
It is the ultimate fact sought to be established. It
refers to the proposition:
PART IV a) The elements of the crime;
b) The elements of the cause of action.
RULES OF EVIDENCE
It may be ascertained in the:
1. Pleadings submitted by the parties;
2. Pre-trial order;
3. Issues tried with their express or implied
RULE 128 consent (sec. 5, Rule 10).
General Provisions NOTE: Generally, if a fact is admitted, there is no

more factum probandum because there is no fact
in issue. However, the Rules do not fix a standard
in ascertaining the probandum. It depends upon
Section 1. Evidence defined. — Evidence is the the nature of the case presented before the
means, sanctioned by these rules, of ascertaining courts.
in a judicial proceeding the truth respecting a
matter of fact. (1) In criminal cases, for instance, even if the accused
enters a plea of guilty to a capital offense, the
court must conduct a summary hearing to conduct
SOURCES:
a searching inquiry into the voluntariness and full
1. Rules of Court;
comprehension of the consequences of his plea
2. Constitution;
and for the prosecution to prove the guilt of the
3. Special laws (e.g. Anti-Wiretapping Act);
accused and the precise degree of culpability
4. Revised Penal Code;
(sec. 3, Rule 116).
5. Civil Code;
6. Jurisprudence.
In special proceedings for the probate of a will,
even if no person appears to contest the
allowance thereof, the court is still required to
PROOF EVIDENCE
grant allowance only if the will is proved to have
The probative effect of
been executed as required by law (sec. 5, Rule
evidence and is the
76).
conviction or It is the medium or
persuasion of the mind means by which a fact
FACTUM PROBANS
resulting from the is proved or disproved
It is the material evidencing the proposition. It is
consideration of the
the fact by which the factum probandum is
evidence. established.
There is proof only
because of evidence Admissibility or inadmissibility of the evidence is
Effect Cause determined in accordance with the law in force at
the time the evidence is presented. Therefore,
NOTE: “TRUTH” does not necessarily means there is no vested rights in the rules on evidence.
“actual truth” but only legal truth. The reason is Evidence otherwise inadmissible under the law at
sec. 34, Rule 132. That is, the court may cannot the time the action accrued, may be received in
consider evidence NOT formally offered (Review evidence provided that it is admissible under the
Lecture). law in force at the time of the trial.
Facts; Legislative Facts vs. Adjudicative Facts (2004) Factum probandum Factum Probans

________________________________________________________________________________________________
Proposition to be Material evidencing the 3. Corroborative Evidence--- evidence

established proposition which is of different kind and character as
Conceived of as Conceived of for that already given and tends to prove the
hypothetical; that practical purposes as same proposition.
which one party existent, and is offered 4. Cumulative Evidence--- evidence which
affirms and the other as such for the is of the same kind and character as that
denies consideration of the already given and tends to prove the
court same proposition.
C. Depending upon its weight and

NOTE: While it is true that the confessions of the acceptability:
appellant were made without the benefit of
counsel, they are still admissible in evidence 1. Primary or Best Evidence--- evidence
because the appellant failed to make a timely which affords the greatest certainty of the
objections before trial(P. vs. Samus, GR NO. fact in question.
135957-58, SEPT. 27, 2002). Rules of Exclusion
are not SELF-EXECUTORY. 2. Secondary or Substitutionary
Evidence--- evidence which is inferior to
CLASSIFICATION OF EVIDENCE primary evidence and admissible only in
the absence of the latter.
A. Depending on its ability to establish the fact
in dispute, evidence may be: D. Depending on its nature:
1. Direct Evidence--- evidence which 1. Object Evidence--- evidence addressed

proves the fact in dispute without the aid to the senses of the court and is capable
of inference or presumption. of being exhibited to be examined or
viewed by the court. Also known as
2. Circumstantial Evidence--- proof of fact autoptic preference or real or physical
or facts from which , taken either singly or evidence.
collectively, the existence of particular
fact in dispute may be inferred as NOTE: Physical evidence speaks more
necessary or probable consequence. eloquently than a hundred witnesses (P.
vs. Pabillo, GR NO. 122103, Nov. 4,
Note: Circumstantial evidence is evidence of 2003).
relevant facts.
2. Documentary Evidence--- supplied by
Direct evidence and circumstantial evidence are at written instruments or derived from
par in weight of evidence. conventional symbols ad letters by which
ideas are represented on material
Note: According to Atty. Ucat, circumstantial substances.
evidence is sometimes the best evidence because
it cannot lie, it cannot be rehearsed or be a 3. Testimonial Evidence--- is a verbal or
product of an afterthought. oral evidence which consists of the
narration or deposition by one who has
B. Depending on the degree of its value in observed or has personal knowledge of
establishing a disputed fact: that to which he is testifying.
1. Prima Facie Evidence--- evidence which 4. Positive Evidence--- where the witness
suffices for the proof of a particular fact affirms that a fact did or did not occur. It is
until contradicted by other evidence. entitled greater weight since the witness
represents of his personal knowledge the
Note: it is by itself sufficient to establish presence or absence of a fact.
the factum probandum if no evidence to
the contrary appears. 5. Negative Evidence--- where the witness
states that he did not see or know of the
2. Conclusive Evidence--- evidence which occurrence of a fact and there is total
is incontrovertible or one which the law disclaimer of personal knowledge.
does not allow to be contradicted. It is
insurmountable evidence. E. Depending on its quality:

________________________________________________________________________________________________
Section 2. Scope. — The rules of evidence shall

1. Relevant Evidence--- if it has a relation to be the same in all courts and in all trials and
the fact in issue as to induce a belief in its hearings, except as otherwise provided by law or
existence or non-existence. these rules. (2a)
Note: A simple test of relevancy is the INSTANCES WHERE THE RULES OF

ability of the evidence to persuade or if it EVIDENCE DO NOT STRICTLY APPLY TO
can be of help to the fact-finder. JUDICIAL ROCEEDINGS:
2. Material Evidence--- evidence which 1. In civil cases covered by the Revised Rule
tends to prove the fact in issue, and on Summary Procedure since there is no
determined by the rules of substantive law trial;
and pleading.
3. Admissible Evidence--- if it is relevant to NOTE: However, the rule on burden of
the issue and not excluded by law or the proof was applied in ejectment cases
Rules. since ejectment is a possessory action,
Relevancy the plaintiff must show a right of
Competency possession that is present or immediate in
4. Credible Evidence--- if it is not only the property sought to be recovered.
admissible but believable and used by the Unless established, the defendant will
court in deciding a case. prevail (C&S Fishfarm Corp. vs. CA, GR
Evidence is credible if it is worthy NO. 122720, Dec. 16, 2002).
of belief.
2. Rules of Summary Procedure in criminal
Admissibility; Object or Real Evidence (1994) cases where witnesses submit their
At the trial of Ace for violation of the Dangerous affidavits and counter-affidavits, subject
Drugs Act, the prosecution offers in evidence a only to cross-examination, re-direct, re-
photocopy of the marked P100.00 bills used in the cross and recall;
“buy-bust” operation. Ace objects to the introduction 3. Agrarian cases.
of the photocopy on the ground that the Best
Evidence Rule prohibits the introduction of OTHERS
secondary evidence in lieu of the original. a) Is the
The rules of evidence does not apply to
photocopy real (object) evidence or documentary
evidence? b) Is the photocopy admissible in evidence? probation board
SUGGESTED ANSWER:
a) The photocopy of the marked bills is real (object) CTA
evidence not documentary evidence, because the SEC
marked bills are real evidence.
b) Yes, the photocopy is admissible in evidence, Immigration cases
because the best evidence rule does not apply to object LA/NLRC
or real evidence.
CAR
Admissibility of Weight of evidence Section 3. Admissibility of evidence. —

evidence Evidence is admissible when it is relevant to the
Pertains to the ability issue and is not excluded by the law of these
of the evidence to be Pertains to the effect of rules. (3a)
allowed and evidence admitted
accepted subject to RELEVANT---has a logical connection with the
its relevancy and fact in issue or if it establishes directly or indirectly
competence the existence or non-existence of the facts in
Substantive essence issue. Relevancy is determined by logic and
or characteristic The probative value of common sense.
feature of evidence evidence which the
as would make it court may give after Component of Relevant Evidence:
worthy of complying with the
consideration by the rules of relevancy and a. Materiality--- whether the evidence is
court before its competency offered upon a matter properly in issue;
admission

________________________________________________________________________________________________
whether it is directed toward a fact within used in evidence in any court until the requisite
the range of allowable controversy. stamp or stamps shall have been affixed thereto
and cancelled.
b. Probativeness--- the tendency of the
evidence to establish the proposition that No notary public or other officer authorized
it is offered to prove. to administer oaths shall add his jurat or
Degree of Probativeness—To be relevant,
acknowledgment to any document subject to
it need not be conclusive. The evidence
must merely help a little. documentary stamp tax unless the proper
documentary stamps are affixed thereto and
COMPETENT--- if not excluded by law or the cancelled.
Rules. Competency is determined by the
Failure to stamp a document required by law to be
constitution and the laws.
stamped shall render the document inadmissible
in any court until the requisite stamp or stamps
The general rule is evidence having rational
shall have been affixed thereto and cancelled
probative value are admissible, EXCEPT some
(§201 NIRC). This is an absolute inadmissibility.
specific rule (law, const.) forbids their admission.
General Banking Act of 2000,
Evidence even though relevant should be
RA 8791, §55.1 (b)
excluded if its probative value is substantially
outweighed by the risk that its admission will Sec. 55. Prohibited Transactions. -
cause:
55.1. No director, officer, employee, or agent
1. Undue/unfair prejudice; of any bank shall –
2. confusion of the issues;
3. undue delay or waste of time; (b) Without order of a court of competent
4. mislead the trier of fact; and jurisdiction, disclose to any unauthorized person
5. needless presentation of cumulative any information relative to the funds or
evidence. properties in the custody of the bank belonging to
private individuals, corporations, or any other
RULES OF EXCLUSIONARY
EXCLUSION RULES
entity: Provided, That with respect to bank
Governed by the rules Commonly used for deposits, the provisions of existing laws shall
on evidence evidence excluded by prevail;
the constitution Elements of the exclusion:
SCOPE OF EXCLUSIONARY RULES (rights director, officer, employee, or agent of any bank
protected) disclosure to unauthorized person
1. right against unreasonable search and information relative to the funds or properties in
seizure; the custody of the bank belonging to private
2. right to privacy and inviolability of individuals, corporations, or any other entity
communication; without a court order
3. right of a person under investigation of an
offense; de Leon: Note that this provision covers only
4. right against self-incrimination. property in the custody of the bank other than
bank deposits. For bank deposits, RA 1405
Statutory rules of exclusion governs. Note also that the provision does not
state the nature of the inadmissibility. I submit that
NIRC, §201, as amended by RA it is a rule of absolute inadmissibility.
8424
Sec. 201. Effect of Failure to Stamp Taxable RA 1405: Law on Secrecy of
Document. — An instrument, document or paper Bank Deposits
which is required by law to be stamped and which Sec. 2. All deposits of whatever nature with
has been signed, issued, accepted or transferred banks or banking institutions in the Philippines
without being duly stamped, shall not be including investments in bonds issued by the
recorded, nor shall it or any copy thereof or any Government of the Philippines, its political
record of transfer of the same be admitted or subdivisions and its instrumentalities, are hereby
________________________________________________________________________________________________
considered as of an absolutely confidential nature replay the same for any other person or persons;
and may not be examined, inquired or looked into or to communicate the contents thereof, either
by any person, government official, bureau or verbally or in writing, or to furnish transcriptions
office, except upon written permission of the thereof, whether complete or partial, to any
depositor, or in cases of impeachment, or upon other person: Provided, That the use of such
order of a competent court in cases of bribery or record or any copies thereof as evidence in any
dereliction of duty of public officials, or in cases civil, criminal investigation or trial of offenses
where the money deposited or invested is the mentioned in section 3 hereof, shall not be
subject matter of the litigation. covered by this prohibition.
GR: All deposits of whatever nature with banks or Unlawful acts:
banking institutions in the Philippines including
any person, not being authorized by all the parties
investments in bonds issued by the Government
to any private communication or spoken word,
of the Philippines, its political subdivisions and its
to tap any wire or cable, or by using any other
instrumentalities, are hereby considered as of an
device or arrangement, to secretly overhear,
absolutely confidential nature and may not be
intercept, or record such communication or
examined, inquired or looked into by any person,
spoken word by using a device commonly
government official, bureau or office.
known as a dictaphone or dictagraph or
detectaphone or walkie-talkie or tape
Exceptions:
recorder, or however otherwise described:
written permission of the depositor
any person to knowingly possess any tape record,
impeachment, or wire record, disc record, or any other such
record, or copies thereof, of any
order of a competent court in cases of
communication or spoken word secured in the
bribery or manner prohibited by this law; or
dereliction of duty of public officials, or any person to replay the same for any other
person or persons
where the money deposited or invested is the
subject matter of the litigation. any person to communicate the contents thereof,
either verbally or in writing, or
de Leon: I submit that this is a rule of absolute
inadmissibility. any person to furnish transcriptions thereof,
whether complete or partial, to any other
person:
RA 4200: Wire-tapping
The use of such record or any copies thereof as
Sec. 1. It shall be unlawful for any evidence in any civil, criminal investigation or trial
person, not being authorized by all the parties to of offenses mentioned in section 3 hereof, shall
not be covered by this prohibition.
any private communication or spoken word, to
tap any wire or cable, or by using any other Sec. 2. Any person who willfully or
device or arrangement, to secretly overhear, knowingly does or who shall aid, permit, or cause
intercept, or record such communication or to be done any of the acts declared to be
spoken word by using a device commonly known unlawful in the preceding section or who violates
as a dictaphone or dictagraph or detectaphone or the provisions of the following section or of any
walkie-talkie or tape recorder, or however order issued thereunder, or aids, permits, or
otherwise described: causes such violation shall, upon conviction
It shall also be unlawful for any person, be he thereof, be punished xxx.
a participant or not in the act or acts penalized in Sec. 3. Nothing contained in this Act,
the next preceding sentence, to knowingly however, shall render it unlawful or punishable
possess any tape record, wire record, disc record, for any peace officer, who is authorized by a
or any other such record, or copies thereof, of written order of the Court, to execute any of the
any communication or spoken word secured acts declared to be unlawful in the two preceding
either before or after the effective date of this sections in cases involving the crimes of treason,
Act in the manner prohibited by this law; or to espionage, provoking war and disloyalty in case of

________________________________________________________________________________________________
war, piracy, mutiny in the high seas, rebellion,

conspiracy and proposal to commit rebellion, Information obtained in violation of the anti-
wiretapping act is absolutely inadmissible.
inciting to rebellion, sedition, conspiracy to
commit sedition, inciting to sedition, kidnapping Ramirez v. CA, 248 SCRA 590 (1995) Even a
as defined by the Revised Penal Code, and person privy to a communication who records his
violations of Commonwealth Act No. 616, private conversation with another without the
punishing espionage and other offenses against knowledge of the latter violates the anti-
national security: Provided, That such written wiretapping act. The recording is inadmissible in
evidence.
order shall only be issued or granted upon written
application and the examination under oath or Note: An extension telephone line cannot be
affirmation of the applicant and the witnesses he placed in the same category as a dictapone,
may produce and a showing: (1) that there are dictagraph or other devices enumerated in sec. 1
reasonable grounds to believe that any of the of RA 4200 as the use thereof cannot be
crimes enumerated hereinabove has been considered as tapping the wire or cable of a
telephone line (Gaanan vs. CA, 145 SCRA 112).
committed or is being committed or is about to
be committed: Provided, however, That in cases
involving the offenses of rebellion, conspiracy and DOCTRINE OF THE “FRUIT OF THE
proposal to commit rebellion, inciting to POISONOUS TREE”
rebellion, sedition, conspiracy to commit sedition, The doctrine posits that all evidence (the fruit)
and inciting to sedition, such authority shall be derived from an illegal search (the poisonous tree)
must be suppressed.
granted only upon prior proof that a rebellion or
acts of sedition, as the case may be, have actually KINDS OF ADMISSIBILITY
been or are being committed; (2) that there are
reasonable grounds to believe that evidence will 1. MULTIPLE--- Evidence that is plainly
be obtained essential to the conviction of any relevant and competent for two or more
person for, or to the solution of, or to the purposes will be received if it satisfies all
the requirements prescribed by law in
prevention of, any of such crimes; and (3) that
order that it may be admissible for the
there are no other means readily available for purpose for which it is presented, even if it
obtaining such evidence. does not satisfy the other requisites for its
xxx admissibility for other purposes.
Conditions for valid wiretapping: Note: for instance, evidence that the
any peace officer general reputation of the accused for
truth, honesty or integrity is bad is
authorized by a written order of the Court inadmissible to prove that he committed
the crime charged but it may be
in cases involving the crimes of treason,
admissible to impeach his credibility as a
espionage, provoking war and disloyalty in
witness.
case of war, piracy, mutiny in the high seas,
rebellion, conspiracy and proposal to commit
2. CONDITIONAL--- Evidence which appear
rebellion, inciting to rebellion, sedition,
to be immaterial is admitted by the court
conspiracy to commit sedition, inciting to
subject to the condition that its
sedition, kidnapping, espionage and other
connection with another or other facts
offenses against national security:
subsequently to be proved will be
Sec. 4. Any communication or spoken word, established.
or the existence, contents, substance, purport,
3. CURATIVE--- Evidence otherwise
effect, or meaning of the same or any part
improper is admitted to contradict
thereof, or any information therein contained improper evidence presented or
obtained or secured by any person in violation of introduced by the other party, to cure,
the preceding sections of this Act shall not be contradict or neutralize such improper
admissible in evidence in any judicial, quasi- evidence (fighting fire with fire).
judicial, legislative or administrative hearing or
investigation.
________________________________________________________________________________________________
Offer of Evidence; Fruit of a Poisonous objection with reasons. (3%) SUGGESTED

Tree (2010) ANSWER:
No. VIII. Dominique was accused of The objection to the admissibility of the
committing a violation of the human Security documents which the arresting officer
Act. He was detained incommunicado, asked Edmond to sign without the benefit
deprived of sleep, and subjected to water of counsel, is well-taken. Said documents
torture. He later allegedly confessed his guilt having been signed by the accused while
via an affidavit. After trial, he was acquitted under custodial investigation, imply an
on the ground that his confession was “admission” without the benefit of
obtained through torture, hence, counsel, that the shabu came from him
inadmissible as evidence. In a subsequent and that the P3,000,00 was received by
criminal case for torture against those who him pursuant to the illegal selling of the
deprived him of sleep and subjected him to drugs. Thus, it was obtained by the
water torture. Dominique was asked to testify arresting officer in clear violation of Sec.
and to, among other things, identify his 12 (3), Art. III of the 1987 Constitution,
above said affidavit of confession. As he was particularly the right to be assisted by
about to identify the affidavit, the defense counsel during custodial investigation.
counsel objected on the ground that the Moreover, the objection to the
affidavit is a fruit of a poisonous tree. Can admissibility of the evidence was timely
the objection be sustained? Explain. (3%) made, i.e., when the same is formally
SUGGESTED ANSWER: No, the objection offered.
may not be sustained on the ground
stated, because the affiant was only to
identify the affidavit which is not yet Admissibility (1998)
being offered in evidence. The doctrine of The barangay captain reported to the police that X was
the poisonous tree can only be invoked by illegally keeping in his house in the barangay an
Domingo as his defense in the crime of Armalite M16 rifle. On the strength of that
Violation of Human Security Act filed information, the police conducted a search of the
against him but not by the accused house of X and indeed found said rifle. The police
torture case filed by him. raiders seized the rifle and brought X to the police
In the instant case, the presentation of station. During the investigation, he voluntarily signed
the affidavit cannot be objected to by the a Sworn Statement that he was possessing said rifle
defense counsel on the ground that is a without license or authority to possess, and a Waiver
fruit of the poisonous tree because the of Right to Counsel.
same is used in Domingo‟s favor. During the trial of X for illegal possession of firearm,
the prosecution submitted in evidence the rifle. Sworn
Offer of Evidence; Fruit of a Poisonous Statement and Waiver of Right to Counsel, individually
Tree (2009) No.VI. Arrested in a buy-bust rule on the admissibility in evidence of the:
operation, Edmond was brought to the police 1. Rifle; [2%]
station where he was informed of his 2. Sworn Statement; and [2%1
constitutional rights. During the 3. Waiver of Right to Counsel of X. [1%]
investigation, Edmond refused to give any SUGGESTED ANSWER:
statement. However, the arresting officer 1. The rifle is not admissible in evidence because it was
asked Edmond to acknowledge in writing that seized without a proper search warrant. A warrantless
six (6) sachets of “shabu” were confiscated search is not justified. There was time to secure a
from him. Edmond consented and also search warrant. (People us. Encinada G.R. No. 116720,
signed a receipt for the amount of P3,000, October 2. 1997 and other cases)
allegedly representing the “purchase price of 2. The sworn statement is not admissible in evidence
the shabu.” At the trial, the arresting officer because it was taken without informing him of his
testified and identified the documents custodial rights and without the assistance of counsel
executed and signed by Edmond. Edmond’s which should be independent and competent and
lawyer did not object to the testimony. After preferably of the choice of the accused. (People us.
the presentation of the testimonial evidence, Januario, 267 SCRA 608.)
the prosecutor made a formal offer of 3. The waiver of his right to counsel is not admissible
evidence which included the documents because it was made without the assistance of counsel
signed by Edmond. Edmond’s lawyer object of his choice. (People us. Gomez, 270 SCRA 433.)
to the admissibility of the document for being
the fruit of the poisoned tree. Resolve the

________________________________________________________________________________________________
Admissibility (2002) No. The sworn written statements of Max and Brix
Acting on a tip by an informant, police officers may not be admitted in evidence, because they were
stopped a car being driven by D and ordered him to not assisted by counsel. Even if the police captain
open the trunk. The officers found a bag containing before whom they signed the statements was a lawyer,
several kilos of cocaine. They seized the car and the he was not functioning as a lawyer, nor can he be
cocaine as evidence and placed D under arrest. considered as an independent counsel. Waiver of the
Without advising him of his right to remain silent and right to a lawyer must be done in writing and in the
to have the assistance of an attorney, they questioned presence of independent counsel. (People v. Mahinay, 302
him regarding the cocaine. In reply, D said, “I don’t SCRA 455 11999]; People v. Espiritu, 302 SCRA 533 [1999]).
know anything about it. It isn’t even my car.” D was
charged with illegal possession of cocaine, a prohibited
drug. Upon motion of D, the court suppressed the use Section 4. Relevancy; collateral matters. —
of cocaine as evidence and dismissed the charges Evidence must have such a relation to the fact in
against him. D commenced proceedings against the issue as to induce belief in its existence or non-
police for the recovery of his car. In his direct existence. Evidence on collateral matters shall not
examination, D testified that he owned the car but had be allowed, except when it tends in any
registered it in the name of a friend for convenience. reasonable degree to establish the probability or
On cross-examination, the attorney representing the improbability of the fact in issue. (4a)
police asked, “After your arrest, did you not tell the
arresting officers that it wasn’t your car?” If you were Collateral matter
D’s attorney, would you object to the question? Why? It refers to facts other than the fact in issue.
(5%)
SUGGESTED ANSWER: Collateral facts – matters other than facts in
Yes, because his admission made when he was issue and which are offered as a basis merely for
questioned after he was placed under arrest was in inference as to the existence or non-existence of
violation of his constitutional right to be informed of the facts in issue
his right to remain silent and to have competent and
independent counsel of his own choice. Hence, it is
inadmissible in evidence. [Constitution, Art. III, sec. 12; R.A. RULE 129
7438 (1992), sec, 2; People v. Mahinay, 302 SCRA 455].
ALTERNATIVE ANSWER:
Yes, because the question did not lay the predicate to What Need Not Be Proved
justify the cross-examination question.
NOTE: The following facts need not be proved:
Admissibility (2004) 1. Those which the court may properly take
Sgt. GR of WPD arrested two NPA suspects, Max and judicial notice of (Rule 129);
Brix, both aged 22, in the act of robbing a grocery in 2. Those which are judicially admitted;
Ermita. As he handcuffed them he noted a pistol 3. Those which are conclusively presumed;
tucked in Max's waist and a dagger hidden under Brix's 4. Those disputably presumed but
shirt, which he promptly confiscated. At the police uncontradicted.
investigation room, Max and Brix orally waived their
right to counsel and to remain silent. Then under oath, JUDICIAL NOTICE
they freely answered questions asked by the police Cognizance of certain facts which judges may
desk officer. Thereafter they signed their sworn properly take and act upon without proof. They are
statements before the police captain, a lawyer. Max based on consideration of expediency and
admitted his part in the robbery, his possession of a convenience for it displaces the necessity for
pistol and his ownership of the packet of shabu found evidence on a settled matter. It may be mandatory
in his pocket. or discretionary.
Brix admitted his role in the robbery and his
A judge is not justified in refusing to take judicial
possession of a dagger. But they denied being NPA hit
notice of a fact which is not within his knowledge
men. In due course, proper charges were filed by the
or memory if the fact in question is one which is he
City Prosecutor against both arrestees before the MM
proper subject of judicial cognizance.
RTC.
May the written statements signed and sworn to by Object of judicial notice:
Max and Brix be admitted by the trial court as To save time, labor and expense in securing and
evidence for the prosecution? Reason. (5%) introducing evidence on matters which is the
SUGGESTED ANSWER:
proper subject of judicial notice

________________________________________________________________________________________________
Judicial notice cannot fill-in the missing element succession personally known to the
of a crime. presiding judge.
Section 1. Judicial notice, when mandatory. —

A court shall take judicial notice, without the Bar Exam Question 2012
introduction of evidence, of: 80. A court may take judicial notice of:
a. the Twitter account of President Aquino.
1. the existence and territorial extent of b. a Committee Report issued by the
states, their political history, forms of Congressional Committee on Labor
government and symbols of nationality, Relations.
2. the law of nations, c. the effects of taking aspirin everyday.
3. the admiralty and maritime courts of the d. the arbitral award issued by International
world and their seals, Court of Arbitration.
4. the political constitution and history of the SUGGESTED ANSWER: (b), A court shall
Philippines, take judicial notice, without the
5. the official acts of legislative, executive introduction of evidence, of the existence
and judicial departments of the and territorial extent of states, their
Philippines, political history, forms of government and
6. the laws of nature, symbols of nationality, the law of nations,
7. the measure of time, and the admiralty and maritime courts of the
8. the geographical divisions. (1a) world and their seals, the political
constitution and history of the
NOTES: Philippines, the official acts of the
legislative, executive, and judicial
THE LAW OF NATIONS departments of the Philippines, the laws
The law of nations which is the subject of judicial of nature, the measure of time, and the
notice is the law which regulates the relations of geographical divisions. (Rule 129, Sec. 1,
the dominant powers of the earth. It is the Rules of Court).
compilation of rules which by common consent of
mankind have acquiesced in as law.
EXCEPTIONS TO THE RULE:
FOREIGN MUNICIPAL LAWS 1. Foreign law accepted by the government;
GR: They must be proved as any other fact. They 2. Common law.
do not proved themselves nor can courts take
judicial notice of them. They must be alleged and DOCTRINE OF PROCESSUAL PRESUMPTION
proved. It is that doctrine which lays down the presumption
that the foreign law is the same as the law of the
They may be evidenced by an official publication forum. It arises if the foreign law, though properly
thereof or by a copy attested by the officer having applicable, is either not alleged, or if alleged, is not
legal custody of the record. Or his deputy, and proved before a competent court.
accompanied with a certificate that such officer
has the custody thereof. NOTE: When the parties in a case agree on what
the foreign law provides, these are admissions of
The certificate may be made by a secretary of an fact which other parties and the court are made to
embassy or legation, consul general, consul, vice- rely upon. Hence, they are in estoppel to
consul and consular agent or by any officer in the subsequently take a contrary position (Phil.
foreign service of the Philippines stationed in a Commercial and Industrial Bank vs. Escolin, et
foreign country in which the record is kept, al.).
authenticated by the seal of the office.
The mere personal knowledge of the judge is not
Bar Exam Question 2011 the judicial knowledge of the court. Judicial
(81) Which of the following matters is NOT A cognizance is taken only of those matters which
PROPER SUBJECT of judicial notice? are “commonly known”. A fact may be of judicial
(A) Persons have killed even without motive. notice and not of the judge’s personal knowledge
(B) Municipal ordinances in the and vice versa. The rule refers to facts which
municipalities where the MCTC sits. (C) ought to be known to judges because of their
Teleconferencing is now a way of conducting judicial functions
business transactions. (D) British law on

________________________________________________________________________________________________
Section 2. Judicial notice, when discretionary. 4. In cases seeking to determine what is

— A court may take judicial notice of matters reasonable exercise of discretion or
which: whether or not the previous ruling is
applicable in a case under consideration.
1. are of public knowledge,
2. or are capable to unquestionable NOTE: These exceptions are applicable only
demonstration, when the case referred to or the original or part
3. or ought to be known to judges because thereof are actually withdrawn from the archives
of their judicial functions. (1a) and admitted as part of the record of the case then
pending.
Judicial Notice of Facts
This is measured by general knowledge of the
same facts. A fact generally recognized or known Judicial Notice of Municipal Ordinances
when its existence or operation is accepted by the
public without qualification or contention. Inferior courts should take judicial notice of
municipal or city ordinances in force within their
TEST OF NOTORIETY: Whether the fact involve territorial jurisdiction.
is notoriously or publicly known as to make it
proper to accept its existence without proof. The RTC should take judicial notice of municipal
ordinances only when:
Tabuena v. CA, 196 SCRA 650 (1991) As a
general rule courts are not authorized to take 1. They are expressly authorized by a
judicial notice, in the adjudication of cases statute;
pending before them, of the contents of the 2. On appeals of decisions of inferior courts
records of other cases, even when such cases when such court had taken notice of a
have been tried or are pending in the same court, municipal ordinance.
and notwithstanding the fact that both cases may 3. It may also take discretionary judicial
have been heard or are actually pending before notice under sec. 2.
the same judge.
RULES BEFORE THE APPELLATE COURTS
However, exceptions are:
1. The appellate court is without authority to
1. when in the absence of objection, and as take notice or to take into consideration
a matter of convenience to all parties, a the judicial records of a case previously
court may properly treat all or any part of decided by the trial court upon which said
the original record of a case filed in its court did not have the opportunity to pass;
archives as read into the record of a case 2. An appellate court cannot consult the
pending before it, when, with the records in another case to ascertain a fact
knowledge of the opposing party, not shown by the records of the case
reference is made to it for that purpose, before it, but could go to its other
by name and number or in some other decisions for the law that is determinative
manner by which it is sufficiently of or applicable to the case under review;
designated; or when the original record of 3. The SC can also take judicial notice of its
the former case or any part of it, is records in a previous case in connection
actually withdrawn from the archives by with the conduct of litigant or witness in a
the court's direction, at the request or with similar matter;
the consent of the parties, and admitted 4. Lower courts, from the CA down to the
as a part of the record of the case then lowest level must take judicial notice of
pending; decisions of the SC, as they are duty
bound to know the rulings of the highest
2. When the present action is closely tribunal and to apply them in the
interrelated to another case pending adjudication of cases, they being part of
between the same parties; the legal system.
3. Where the interest of public in

ascertaining the truth is of paramount
importance; Judicial Notice; Evidence (2005)
Explain briefly whether the RTC may, motu proprio, take
judicial notice of: (5%)
________________________________________________________________________________________________
1. The street name of methamphetamine hydro- was pleaded as part of the defense of defendant but no
chloride is shabu. evidence was presented to prove the existence of said
SUGGESTED ANSWER: law, what is the presumption to be taken by the court
The RTC may motu proprio take judicial notice of the as to the wordings of said law"?
street name of methamphetamine hydrochloride is SUGGESTED ANSWER:
shabu, considering the chemical composition of shabu. (a) The three instances when a Philippine court can
(People v. Macasling, GM, No. 90342, May 27, 1993) take judicial notice of a foreign law are: (1) when the
2. Ordinances approved by municipalities under Philippine courts are evidently familiar with the foreign
its territorial jurisdiction; law (Moran. Vol. 5, p. 34, 1980 edition); (2) when the foreign
SUGGESTED ANSWER: law refers to the law of nations (Sec. 1 of Rule 129) and (3)
In the absence of statutory authority, the RTC may not when it refers to a published treatise, periodical or
take judicial notice of ordinances approved by
pamphlet on the subject of law if the court takes
municipalities under their territorial jurisdiction, except
judicial notice of the fact that the writer thereof is
on appeal from the municipal trial courts, which took
judicial notice of the ordinance in question. (U.S. v. recognized in his profession or calling as expert on the
Blanco, G.R, No. 12435, November 9,1917; U.S. v. subject (Sec. 46. Rule 130).
Hernandez, G.R. No. 9699, August 26, 1915) (b) A written foreign law may be evidenced by an official
3. Foreign laws; publication thereof or by a copy attested by the officer
SUGGESTED ANSWER: having the legal custody of the record, or by his deputy, and
The RTC may not generally take judicial notice of accompanied. If the record is not kept in the Philippines,
foreign laws (In re Estate of Johnson, G.R. No. 12767, with a certificate that such officer has the custody, if the
November 16, 1918; Fluemer v. Hix, G.R. No. 32636, office in which the record is kept is in a foreign country, the
certificate may be made by a secretary of the embassy or
March 17, 1930), which must be proved like any other
legation, consul general, consul, vice-consul, or consular
matter of fact (Sy Joe Lieng v. Sy Quia, G.R. No. 4718, agent or by any officer in the foreign service of the
March 19, 1910) except in a few instances, the court in Philippines stationed in the foreign country in which the
the exercise of its sound judicial discretion, may take record is kept, and authenticated by the seal of his office
notice of foreign laws when Philippine courts are (Sec. 24, Rule 132, Zalamea v. CA, 228 SCRA 23).
evidently familiar with them, such as the Spanish Civil (c) The presumption is that the wordings of the
Code, which had taken effect in the Philippines, and foreign law are the same as the local law. (Northwest
other allied legislation. (Pardo v. Republic, G.R. No. Orient Airlines v. Court of Appeals, 241 SCRA 192; Moran,
L2248 January 23, 1950; Delgado v. Republic, G.R. No. Vol. 6. page 34, 1980 edition; Lim v. Collector of Customs,
L2546, January .28, 1950) 36 Phil. 472). This is known as the PROCESSUAL
4. Rules and Regulations issued by quasijudicial PRESUMPTION.
bodies implementing statutes;
SUGGESTED ANSWER:
The RTC may take judicial notice of Rules and
Section 3. Judicial notice, when hearing
Regulations issued by quasi-judicial bodies necessary. — During the trial, the court, on its
implementing statutes, because they are capable of own initiative, or on request of a party, may
unquestionable demonstration (Chattamal v. Collector of announce its intention to take judicial notice of any
Customs, G.R. No. 16347, November 3,1920), unless the matter and allow the parties to be heard thereon.
law itself considers such rules as an integral part of the
statute, in which case judicial notice becomes
After the trial, and before judgment or on appeal,
mandatory.
the proper court, on its own initiative or on request
5. Rape may be committed even in public places.
SUGGESTED ANSWER:
of a party, may take judicial notice of any matter
The RTC may take judicial notice of the fact that rape and allow the parties to be heard thereon if such
may be committed even in public places. The "public matter is decisive of a material issue in the case.
setting" of the rape is not an indication of consent. (n)
(People v. Tongson, G.R. No. 91261, February 18, 1991)
The Supreme Court has taken judicial notice of the Section 4. udicial admissions. — An admission,
fact that a man overcome by perversity and beastly verbal or written, made by the party in the course
passion chooses neither the time, place, occasion nor of the proceedings in the same case, does not
victim. (People v, Barcelona, G.R. No. 82589, October 31, require proof. The admission may be contradicted
1990) only by showing that it was made through palpable
mistake or that no such admission was made. (2a)
Judicial Notice; Evidence; Foreign Law (1997) NOTE: Lack of jurisdiction over the subject matter
a) Give three instances when a Philippine court can cannot be admitted because jurisdiction is
take judicial notice of a foreign law. b) How do you conferred by law and cannot be subject of the
prove a written foreign law? c) Suppose a foreign law stipulation or admission of the parties.

________________________________________________________________________________________________
Judicial admissions are always conclusive upon

Judicial admissions may be made in: the admitter and does not require formal offer in
evidence
1. The pleadings filed by the parties;
2. In the course of the trial either by verbal or Facts alleged in the party’s pleadings are deemed
written manifestations or stipulations; admissions of that party and are binding upon it,
3. In other stages of judicial proceedings as but this is not an absolute and inflexible rule. An
in the pre-trial of the case; answer is a mere statement of which the party
4. Admissions obtained through depositions, filing it expects to prove, but it is not evidence
written interrogatories or request for (Atillo vs. CA, 266 SCRA 596).
admissions.
Admissions in affirmative defenses are merely
hypothetical
Judicial admissions made in one case are
(35) Which of the following admissions made
admissible at the trial of another case provided
by a party in the course of judicial they are proved and are pertinent to the issue
proceedings is a judicial admission? (A) involve in the latter. UNLESS:
Admissions made in a pleading signed by the 1. The said admissions were made only for
party and his counsel intended to be filed. (B) purposes of the first case, as in the case
An admission made in a pleading in another of implied admissions and their effects
case between the same parties. (C) under Rule 26;
Admission made by counsel in open court. 2. The same were withdrawn with the
(D) Admissions made in a complaint permission of the court therein;
superseded by an amended complaint. 3. The court deems it proper to relieve the
party therefrom.
Instances of Judicial admissions
Q: Is self-serving rule applicable to judicial
the genuineness and due execution of an admissions?
actionable document copied or attached to a
pleading, when the other party fails to A: No. The self-serving rule which prohibit the
specifically deny under oath (Rule 8 §8); admission or declaration of a witness in his favor
material allegations in the complaint, when the applies only to extra-judicial admissions. If the
other party fails to specifically deny it (Rule 8 declaration is made in open court, such is raw
§11); evidence, it is not self-serving. It is admissible
because the witness may be cross-examined on
admissions in superseded pleadings, when that matter. However, whether it will be credible or
offered in evidence (Rule 10 §8); not is a matter of appreciation on the part of the
act, declaration, or omission of a party as to a court.
relevant fact (Rule 130 §26);
ADMISSIONS IN ADMISSIONS IN
implied admission of guilt in an offer of CIVIL CASES CRIMINAL CASES
compromise by the accused in criminal cases, Admission during the
except quasi-offenses and those allowed by Admission in a arraignment may be
law to be compromised (Rule 130 §27); pleading which has withdrawn at any time
admission by silence (Rule 130 §32). been withdrawn or before the judgment of
superseded by an conviction becomes final,
amended pleading but such plea of guilty later
are considered withdrawn is not admissible
Judicial admissions in pleadings later extra-judicial against the accused who
amended admission made the plea.
Admissions in a pleading which had been It is not even considered
withdrawn or superseded by an amended extra-judicial admission
pleading, although filed in the same case, are
considered extra-judicial admissions. The original
pleading must be proved by the party who relies RULE 130
thereon by formally offering it in evidence (Torres
vs. CA, July 31, 1984)

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Rules of Admissibility 2. To insure that there has been no

significant changes in the object’s
A. OBJECT (REAL) EVIDENCE condition.
OCULAR INSPECTION OR “VIEW”

Section 1. Object as evidence. — Objects as
The court can go to the place where the object is
evidence are those addressed to the senses of the
located, when the object evidence cannot be
court. When an object is relevant to the fact in
brought to the court [see also sec. 21 (4) to (6),
issue, it may be exhibited to, examined or viewed
RA 9165]. Unless bulky, the ocular inspection can
by the court. (1a)
be conducted in the court where the evidence is
brought.
This is the evidence of the highest order.
This is also known as a real evidence, VIEW PART OF THE TRIAL
demonstrative evidence, physical The inspection or view outside the courtroom
evidence, and autoptic preference. should be made in the presence of the parties or
at least with the previous notice to them in order
REAL EVIDENCE DEMONSTRATIVE that they may see the object to be viewed. Such
EVIDENCE inspection is part of the trial, inasmuch as
Tangible object that Tangible evidence that evidence is thereby being received. The parties
played some actual role merely illustrates a are entitled to be present at any stage of the trial,
in the matter that gave matter of importance in and consequently they are entitled to be at least
rise to the litigation the litigation notified of the time and place set for the view.
REAL EVIDENCE may be: Read sec. 21 of RA 9165, on the chain of

custody of the seized prohibited drug. Refer to
1. Direct Evidence--- it can prove directly the Criminal Law Reviewer. (see. Table)
the fact for which it is offered.
Chain of Custody (2012) No.II.A. (a) Discuss
E.g. In a physical injury case, the the "chain of custody" principle with respect
direct real evidence of disfiguring to evidence seized under R.A. 9165 or the
injury would be the exhibition of Comprehensive Dangerous Drugs Act of
the injury itself to the court. 2002. (5%) SUGGESTED ANSWER:
In prosecutions involving narcotics and
2. Circumstantial Evidence--- facts about other illegal substances, the substance
the object are proved as the basis for an itself constitutes part of the corpus delicti
inference that other facts are true. of the offense and the fact of its existence
is vital to sustain a judgment of
E.g. In a paternity case, a baby conviction beyond reasonable doubt. The
may be shown and his
chain of custody requirement is essential
appearance compared with that of
to ensure that doubts regarding the
the alleged father, if they look
identity of the evidence are removed
alike, the court may draw an
through the monitoring and tracking of
inference that the parental
the movements of the seized drugs from
relationship exists.
the accused, to the police, to the forensic
REQUISITES OF OBJECT EVIDENCE: chemist, and finally to the court. (People
vs. Sitco, G.R. No. 178202, May 14, 2010,
1. The object must be relevant to the fact in Velasco, Jr. J.). Ergo, the existence of the
issue; dangerous drug is a condition sine qua
2. The object must be authenticated before it non for conviction. (People vs. De Guzman
is admitted; Y Danzil, G.R. No. 186498, March 26,
3. The object must not be hearsay; 2010 Nachura J.). The failure to establish,
4. The object must not be privileged; through convincing proof, that the
5. It must met any additional requirement set integrity of the seized items has been
by law. adequately preserved through an
unbroken chain of custody is enough to
PURPOSE OF AUTHENTICATION engender reasonable doubt on the guilt of
1. To prevent the introduction of an object an accused (People vs. De Guzman Y
different from the one testified about; Danzil). Nonetheless, non-compliance with

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the procedure shall not render void and Bar Exam Question 2012
invalid the seizure and custody of the 52. PDEA agents conducted a search on a
drugs when: house abandoned by its owners in Quezon
(1) such non-compliance is attended by City. The search, in order to be valid, must
justifiable grounds; and (2) the integrity be made in the presence of:
and the evidentiary value of the seized a. any relative of the owner of the house.
items are properly preserved by the b. the Director of the PDEA and a member of
apprehending team. There must be proof the media.
that these two c. the Barangay Chairman and a Barangay
(2) requirements were met before such Tanod.
non-compliance may be said to fall within d. any elected Quezon City official.
the scope of then proviso. (People vs. Dela SUGGESTED ANSWER:
Cruz, G.R. No. 177222, October 29, 2008, (d), Under the “chain of custody”
570 SCRA 273). principle, the apprehending team having
initial custody and control of the drugs
ALTERNATIVE ANSWER: shall, immediately after seizure and
Crucial in proving chain of custody is the confiscation, physically inventory and
marking of the seized drugs or other photograph the same in the presence of
related items immediately after they are the accused or the person/s from whom
seized from the accused. Marking after such items were confiscated and/or seized
seizure is the starting point in the or his/her representative or counsel, a
custodial link, thus, it is vital that the representative from media and the DOJ,
seized contraband are immediately and any elected public official who shall
marked because succeeding handlers of be required to sign the copies of the
the specimens will use the markings as inventory and be given a copy thereof.
reference. Thus, non-compliance by the (Sec. 21(1), RA 9165).
apprehending/buy-bust team with Sec.21
of R.A. 9165 is not fatal as long as there is
justifiable ground therefor, and as long as Limitations against the use of real evidence
the integrity and the evidentiary value of may be classified into:
the confiscated/seized items are properly
preserved by the apprehending 1. Inherent Limitation--- When the object is
officer/team. (People vs. Mantalaba, G.R. relevant to the fact in issue, it may be exhibited to,
No. 186227, July 20, 2011). examined or viewed by the court.
Thus, it excludes:
Bar Exam Question 2011 a. Irrelevant evidence;
(32) Arvin was caught in flagrante delicto b. Illegally obtained evidence.
selling drugs for P200,000.00. The police
officers confiscated the drugs and the money 2. Non-inherent Limitations--- Relevant
and brought them to the police station where evidence may be excluded on the ground that
they prepared the inventory duly signed by although relevant and authentic, its probative
police officer Oscar Moreno. They were, value is exceeded by its prejudicial effect such as
however, unable to take pictures of the items. the following:
Will this deficiency destroy the chain of a. Indecency and impropriety;
custody rule in the drug case? (A) No, a b. Undue prejudice;
breach of the chain of custody rule in drug c. Offensive to sensibilities;
cases, if satisfactorily explained, will not d. Inconvenience and unnecessary expense.
negate conviction. (B) No, a breach of the
chain of custody rule may be offset by NOTE: But when the exhibition is necessary to the
presentation in court of the drugs. (C) Yes, ends of justice, notions of decency and delicacy of
chain of custody in drug cases must be feeling will not be allowed to prevail. Evidence
may be received in chambers.
strictly observed at all times to preserve the
integrity of the confiscated items. (D) Yes,
Admissibility; Private Document (2005)
compliance with the chain of custody rule in
May a private document be offered, and admitted in
drug cases is the only way to prove the
evidence both as documentary evidence and as object
accused’s guilt beyond reasonable doubt.
evidence? Explain.
SUGGESTED ANSWER:

________________________________________________________________________________________________
Yes, it can be considered as both documentary and Sec. 3. Definition of Terms. – For purposes of
object evidence. A private document may be offered this Rule, the following terms shall be defined as
and admitted in evidence both as documentary follows:
evidence and as object evidence. A document can also
be considered as an object for purposes of the case. a. “Biological sample” means any organic
Objects as evidence are those addressed to the senses material originating from a person’s body,
of the court. (Sec. 1, Rule 130, Rules of Court) Documentary even if found in inanimate objects, that is
evidence consists of writings or any material susceptible to DNA testing. This includes
containing letters, words, numbers, figures, symbols or blood, saliva and other body fluids,
other modes of written expressions, offered as proof tissues, hairs and bones;
of their contents. (Sec. 2, Rule 130, Rules of Court) Hence, a b. “DNA” means deoxyribonucleic acid,
private document may be presented as object evidence which is the chain of molecules found in
in order to 'establish certain physical evidence or every nucleated cell of the body. The
characteristics that are visible on the paper and totality of an individual’s DNA is unique for
writings that comprise the document. the individual, except identical twins;
c. “DNA evidence” constitutes the totality of
the DNA profiles, results and other genetic
Republic of the Philippines information directly generated from DNA
SUPREME COURT testing of biological samples;
d. “DNA profile” means genetic information
Manila
derived from DNA testing of a biological
sample obtained from a person, which
EN BANC biological sample is clearly identifiable as
originating from that person;
A.M. No. 06-11-5-SC e. “DNA testing” means verified and
(2 October 2007) credible scientific methods which include
the extraction of DNA from biological
RULE ON DNA EVIDENCE samples, the generation of DNA profiles
and the comparison of the information
RESOLUTION obtained from the DNA testing of
biological samples for the purpose of
determining, with reasonable certainty,
Acting on the recommendation of the Chairperson
whether or not the DNA obtained from two
and Members of the Subcommittee on Evidence
or more distinct biological samples
submitting for the Court’s consideration and
originates from the same person (direct
approval the proposed Rule on DNA Evidence, the
identification) or if the biological samples
Court Resolved to APPROVE the same.
originate from related persons (kinship
analysis); and
This Resolution shall take effect on October 15, f. “Probability of Parentage” means the
2007 following its publication in a newspaper of numerical estimate for the likelihood of
general circulation. parentage of a putative parent compared
with the probability of a random match of
October 2, 2007. two unrelated individuals in a given
population.
RULE ON DNA EVIDENCE
Sec. 4. Application for DNA Testing Order. –
SECTION 1. Scope. – This Rule shall apply The appropriate court may, at any time, either
whenever DNA evidence, as defined in Section 3 motu proprio or on application of any person who
hereof, is offered, used, or proposed to be offered has a legal interest in the matter in litigation, order
or used as evidence in all criminal and civil actions a DNA testing. Such order shall issue after due
as well as special proceedings. hearing and notice to the parties upon a showing
of the following:
Sec. 2. Application of other Rules on Evidence.
– In all matters not specifically covered by this a. A biological sample exists that is relevant
Rule, the Rules of Court and other pertinent to the case;
provisions of law on evidence shall apply. b. The biological sample: (i) was not
previously subjected to the type of DNA
testing now requested; or (ii) was

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previously subjected to DNA testing, but provided that (a) a biological sample exists, (b)
the results may require confirmation for such sample is relevant to the case, and (c) the
good reasons; testing would probably result in the reversal or
c. The DNA testing uses a scientifically valid modification of the judgment of conviction.
technique;
d. The DNA testing has the scientific Note: Connect with sec. 10 of this Rule.
potential to produce new information that
is relevant to the proper resolution of the Sec. 7. Assessment of probative value of DNA
case; and
evidence. – In assessing the probative value of
e. The existence of other factors, if any, the DNA evidence presented, the court shall
which the court may consider as consider the following:
potentially affecting the accuracy of
integrity of the DNA testing.
a. The chain of custody, including how the
biological samples were collected, how
This Rule shall not preclude a DNA testing, they were handled, and the possibility of
without need of a prior court order, at the behest contamination of the samples;
of any party, including law enforcement agencies, b. The DNA testing methodology, including
before a suit or proceeding is commenced.
the procedure followed in analyzing the
samples, the advantages and
Sec. 5. DNA Testing Order. – If the court finds disadvantages of the procedure, and
that the requirements in Section 4 hereof have compliance with the scientifically valid
been complied with, the court shall – standards in conducting the tests;
c. The forensic DNA laboratory, including
a. Order, where appropriate, that biological accreditation by any reputable standards-
samples be taken from any person or setting institution and the qualification of
crime scene evidence; the analyst who conducted the tests. If the
b. Impose reasonable conditions on DNA laboratory is not accredited, the relevant
testing designed to protect the integrity of experience of the laboratory in forensic
the biological sample, the testing process casework and credibility shall be properly
and the reliability of the test results, established; and
including the condition that the DNA test d. The reliability of the testing result, as
results shall be simultaneously disclosed hereinafter provided.
to parties involved in the case; and
c. If the biological sample taken is of such an The provisions of the Rules of Court concerning
amount that prevents the conduct of the appreciation of evidence shall apply
confirmatory testing by the other or the suppletorily.
adverse party and where additional
biological samples of the same kind can Admissibility; DNA Evidence (2010) No.IX.
no longer be obtained, issue an order
In a prosecution for rape, the defense relied
requiring all parties to the case or
on Deoxyribonucleic Acid (DNA) evidence
proceedings to witness the DNA testing to
showing that the semen found in the private
be conducted.
part of the victim was not identical with that
of the accused’s. As private prosecutor, how
An order granting the DNA testing shall be will you dispute the veracity and accuracy of
immediately executory and shall not be the results of the DNA evidence? (3%)
appealable. Any petition for certiorari initiated SUGGESTED ANSWER: As a private
therefrom shall not, in any way, stay the prosecutor, I shall try to discredit the
implementation thereof, unless a higher court results of the DNA test by questioning and
issues an injunctive order. The grant of DNA
possibly impugning the integrity of the
testing application shall not be construed as an
DNA profile by showing a flaw/error in
automatic admission into evidence of any
obtaining the biological sample obtained;
component of the DNA evidence that may be
the testing methodology employed; the
obtained as a result thereof.
scientific standard observed; the forensic
DNA laboratory which conducted the test;
Sec. 6. Post-conviction DNA Testing. – Post- and the qualification, training and
conviction DNA testing may be available, without experience of the forensic laboratory
need of prior court order, to the prosecution or any personnel who conducted the DNA testing.
person convicted by final and executory judgment

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Probability of Paternity is less than 99.9%,

Admissibility; DNA Evidence (2009) the results of the DNA testing shall be
No.I.[a] The Vallejo standard refers to considered as corroborative evidence. If
jurisprudential norms considered by the the value of the Probability of Paternity is
court in assessing the probative value of DNA 99.9% or higher there shall be a
evidence. SUGGESTED ANSWER: TRUE. In disputable presumption of paternity.
People vs. Vallejo, 382 SCRA 192 (2002), it
was held that in assessing the probative Sec. 10. Post-conviction DNA Testing –
value of DNA evidence, courts should Remedy if the Results Are Favorable to the
consider among other things, the Convict. – The convict or the prosecution may file
following data: how the samples were a petition for a writ of habeas corpus in the court
collected, how they were handled, the of origin if the results of the post-conviction DNA
possibility of contamination of the testing are favorable to the convict. In the case the
samples, whether the proper standards court, after due hearing finds the petition to be
and procedures were followed in meritorious, it shall reverse or modify the judgment
conducting the tests and the qualification of conviction and order the release of the convict,
of the analyst who conducted tests. unless continued detention is justified for a lawful
cause.
A similar petition may be filed either in the Court of

Sec. 8. Reliability of DNA Testing Appeals or the Supreme Court, or with any
Methodology. – In evaluating whether the DNA member of said courts, which may conduct a
testing methodology is reliable, the court shall hearing thereon or remand the petition to the court
consider the following: of origin and issue the appropriate orders.
a. The falsifiability of the principles or Bar Exam Question 2012

methods used, that is, whether the theory 86. C, a convict, was able to get favorable
or technique can be and has been tested; results of a post-conviction DNA testing
b. The subjection to peer review and showing that C could not have committed the
publication of the principles or methods; crime. To gain freedom, C may:
c. The general acceptance of the principles a. file a petition for Writ of Habeas Corpus
or methods by the relevant scientific before the court of origin.
community; b. apply for full pardon.
d. The existence and maintenance of c. file a Motion to annul judgment of
standards and controls to ensure the conviction on the ground of fraud.
correctness of data generated; d. file a Motion for new trial under Rule 121.
e. The existence of an appropriate reference SUGGESTED ANSWER: (a), The convict or
population database; and the prosecution may file a petition for a
f. The general degree of confidence writ of habeas corpus in the court of origin
attributed to mathematical calculations if the results of the post-conviction DNA
used in comparing DNA profiles and the testing are favourable to the convict. In
significance and limitation of statistical case the court, after due hearing, finds the
calculations used in comparing DNA petition to be meritorious, it shall reverse
profiles. or modify the judgment of conviction and
order the release of the convict, unless
Sec. 9. of DNA Testing Results. – In evaluating continued detention is justified for a
the results of DNA testing, the court shall consider lawful cause. A similar petition may be
the following: filed either in the Court of Appeals or the
Supreme Court, or with any member of
a. The evaluation of the weight of matching said courts, which may conduct a hearing
DNA evidence or the relevance of thereon or remand the petition to the
mismatching DNA evidence; court of origin and issue the appropriate
b. The results of the DNA testing in the light orders. (Sec.10, Rule on DNA Evidence).
of the totality of the other evidence
presented in the case; and that Sec. 11. Confidentiality. – DNA profiles and all
c. DNA results that exclude the putative results or other information obtained from DNA
parent from paternity shall be conclusive testing shall be confidential. Except upon order of
proof of non-paternity. If the value of the
________________________________________________________________________________________________
the court, a DNA profile and all results or other a. A court order to that effect has been
information obtained from DNA testing shall only secured; or
be released to any of the following, under such b. The person from whom the DNA sample
terms and conditions as may be set forth by the was obtained has consented in writing to
court: the disposal of the DNA evidence.
a. Person from whom the sample was taken; Sec. 13. Applicability to Pending Cases. Except
b. Person from whom the sample was taken; as provided in Section 6 and 10 hereof, this Rule
c. Lawyers of private complainants in a shall apply to cases pending at the time of its
criminal action; effectivity.
d. Duly authorized law enforcement
agencies; and Sec. 14. Effectivity. This Rule shall take effect on
e. Other persons as determined by the court. October 15, 2007, following publication in a
newspaper of general
Whoever discloses, utilizes or publishes in any
form any information concerning a DNA profile
without the proper court order shall be liable for
indirect contempt of the court wherein such DNA B. DOCUMENTARY EVIDENCE
evidence was offered, presented or sought to be
offered and presented.
Section 2. Documentary evidence. —
Documents as evidence consist of writing or any
Where the person from whom the biological
material containing letters, words, numbers,
sample was taken files a written verified request to figures, symbols or other modes of written
the court that allowed the DNA testing for the expression offered as proof of their contents. (n)
disclosure of the DNA profile of the person and all
results or other information obtained from the DNA
testing, the same may be disclosed to the persons NOTE: A document may constitute object
named in the written verified request. evidence depending upon the purpose for which
the document is tendered. If it is produced without
regard to the message which it contains, it is
Sec. 12. Preservation of DNA Evidence. The
treated as real, not documentary evidence. In
trial court shall preserve the DNA evidence in its such case, the best evidence rule does not apply.
totality, including all biological samples, DNA
profiles and results or other genetic information 1. Best Evidence
obtained from DNA testing. For this purpose, the
court may order the appropriate government
agency to preserve the DNA evidence as follows: Section 3. Original document must be
produced; exceptions. — When the subject of
inquiry is the contents of a document, no evidence
a. In criminal cases: shall be admissible other than the original
document itself, except in the following cases:
i. for not less than the
period of time that any (a) When the original has been lost or
person is under trial for an
destroyed, or cannot be produced in court,
offense; or without bad faith on the part of the offeror;
ii. in case the accused is
serving sentence, until
such time as the accused (b) When the original is in the custody or
has served his sentence; under the control of the party against
whom the evidence is offered, and the
latter fails to produce it after reasonable
a. In all other cases, until such time as the notice;
decision in the case where the DNA
evidence was introduced has become
final and executory. NOTE: Even in criminal cases,
there must still be a request for
the production of the document
The court may allow the physical destruction of a even if it be in the possession of
biological sample before the expiration of the the accused and if he refuses to
periods set forth above, provided that: produce it invoking his right
against self-incrimination, then

________________________________________________________________________________________________
secondary evidence may be terms of a document and requires the document’s

introduced (P. vs. Bomping, 48 production without having aim to establish its
Phil. 887). terms.
(c) When the original consists of It refers merely to the proof of what are the
numerous accounts or other documents contents of the document and not as proof of the
which cannot be examined in court truth of the facts stated therein.
without great loss of time and the fact
sought to be established from them is only It does not apply where there is no bona fide
the general result of the whole; and dispute on the contents of the documents and no
useful purpose would be served by its production.
Secondary evidence may consist
Note: Best evidence does not mean superior
of summary of the voluminous
evidence.
documents or records (Herrera).
Compañia Maritima v. Allied Free
“Laying the Basis”
Workers Union, 77 SCRA 24
The act of laying the foundation before accepting
(1977) – voluminous character of
or introducing the secondary evidence.
accounts must be established,
and it must be made available to
NOTE: In addition to the Best Evidence Rule, if
the adverse party before parole;
the document contains a material alteration, the
audit made by or testimony of
private auditor is inadmissible as offeror must account for the alteration (sec. 31,
proof of original record or books Rule 132) and if a portion of the document is
introduced by a party, the adverse party can
of accounts; auditor’s opinion not
inquire on, or introduce the remaining portions of
admissible; best evidence on cost
of equipment are sales invoices the document [Theory of Indivisibility of the
not testimony of an auditor. Evidence—sec. 17, Rule 132].
PURPOSES:
(d) When the original is a public record in
the custody of a public officer or is 1. To Prevent Fraud
recorded in a public office. (yy2a)
If a party is in possession of such
Secondary evidence may consist evidence and withholds it, and
of a certified true copy of the seeks to substitute inferior
document and official publication evidence in its place, the
thereof (Herrera). presumption naturally arises that
the better evidence is withheld for
BEST EVIDENCE RULE [aka Original Evidence fraudulent purposes which its
Rule](sec. 3) production would expose and
The specific evidentiary requirement applicable to defeat.
documentary evidence.
2. To Exclude Uncertainties In the Contents
BER Requisites: of the Document.
1) There must be a document;
2) The subject of the inquiry is the contents The best evidence rule accepts
of the document. the document itself as the best
evidence of its contents, because
No evidence shall be received which is merely it is certain; and rejects a copy
substitutionary in its nature so long as the original thereof, because of the
evidence can be had. It is mandatory that the uncertainty of its contents caused
original copy be presented in court. In other by the hazards of faulty
words, secondary evidence of its contents cannot duplication, or an oral description
be admitted until the non-production of the original thereof, because of the
has been satisfactorily accounted for. uncertainty caused by frailties of
human recollection.
The original evidence must be produced whenever
its contents are the subject of the inquiry. It In a criminal case of falsification
excludes testimony designed to establish the of a document, it is indispensable

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that the judge have before him copy of the promissory note, which they both signed
the document alleged to have A made two photo (xeroxed) copies of the promissory
been falsified in order that he may note, giving one copy to B and retaining the other
find whether or not the crime was copy. A entrusted the typewritten copy to his counsel
actually committed. for safekeeping. The copy with A's counsel was
destroyed when the law office was burned. a) In an
action to collect on the promissory note, which is
The original is in the hands of the deemed to be the "original" copy for the purpose of
defendant and he fails to produce the "Best Evidence Rule"? b) Can the photocopies in
them in the court upon demand of the hands of the parties be considered "duplicate
the prosecutor, certified copies of original copies"? c) As counsel for A, how will you
said documents may be prove the loan given to A and B?
presented by the prosecution and SUGGESTED ANSWER:
admissible in evidence, on the (a) The copy that was signed and lost is the only
principle that secondary evidence "original" copy for purposes of the Best Evidence
are admissible whenever the Rule. (Sec. 4 [b] of Rule 130).
primary evidence is not (b) No, They are not duplicate original copies because
obtainable. there are photocopies which were not signed (Mahilum
v. Court of Appeals, 17 SCRA 482 ), They constitute
People v. Tandoy, 192 SCRA 28 (1990) The best secondary evidence. (Sec. 5 of Rule 130).
evidence rule does not apply to the marked money (c) The loan given by A to B may be proved by
in a buy bust operation because the inquiry is not secondary evidence through the xeroxed copies of the
on the contents of the marked bill, but merely its promissory note. The rules provide that when the
existence. original document is lost or destroyed, or cannot be
produced in court, the offerer, upon proof of its
execution or existence and the cause of its
Section 4. Original of document. — unavailability without bad faith on his part, may prove
its contents by a copy, or by a recital of its contents in
(a) The original of the document is one the some authentic document, or by the testimony of
contents of which are the subject of witnesses in the order stated. (Sec. 5 of Rule 130).
inquiry.
(b) When a document is in two or more 2. Secondary Evidence

copies executed at or about the same
time, with identical contents, all such Section 5. When original document is
copies are equally regarded as originals. unavailable. — When the original document has
been lost or destroyed, or cannot be produced in
(c) When an entry is repeated in the court, the offeror, upon proof of its execution or
regular course of business, one being existence and the cause of its unavailability
copied from another at or near the time of without bad faith on his part, may prove its
the transaction, all the entries are likewise contents by a copy, or by a recital of its contents in
equally regarded as originals. (3a) some authentic document, or by the testimony of
witnesses in the order stated. (4a)
NOTE: A copy of the original document may not
be used without accounting for the original copies. NOTE: The order does not apply where the law
It must appear that all copies have been lost or specifically provides for the class or quantum of
destroyed or cannot be produced before secondary evidence to establish the contents of
secondary evidence can be given of by anyone. the document (DEFINITE EVIDENTIARY RULE).
E.g. proof required in case the holographic will is
The Rule of Duplicate Original lost.
When the document is in two or more copies
executed at or about the same time, with identical The EXECUTION of a document may be proven
contents, all such copies are considered originals. by:
It may be introduced in evidence without
accounting for the non-production of other copies. 1. Any person who executed the document;
2. Any person before whom the execution
Best Evidence Rule (1997) was acknowledged;
When A loaned a sum of money to B. A typed a single

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3. Any person who was present and saw it a) prove execution or existence
executed and delivered;
b) prove cause of unavailability without
4. Any person who after its execution and
bad faith of the offeror
delivery, saw it and recognized the
signatures; c) proof of contents in the following order
5. Any person to whom the parties to the
1) copy
instrument previously confessed the
execution thereof. 2) recital of its contents in
The LOSS of a document may be proven by: 3) some authentic document, or

4) testimony of witnesses
1. Any person who knew the fact of loss;
2. Anyone who has made a sufficient (b) the original is in the custody or under the
examination in the place/s where the control of the adverse party
document or papers of similar character a) adverse party had reasonable notice
are usually kept by the persons in whose to produce the original (Subpoena
custody the documents lost was and has duces tecum)
been unable to find it;
3. Anyone who has made investigation b) proof of the original’s existence
which is sufficient to satisfy the court that c) adverse party fails to produce the
the instrument was indeed lost. original
The CONTENTS of a document may be proven d) proof of contents in the following order
by: 1) copy
1. Any person who signed the document; 2) recital of its contents in

2. Any person who read it; 3) some authentic document, or
3. Any person who heard it read knowing it,
or being proved from other sources, the 4) testimony of witnesses
document so read was the one in (c) the original consists of numerous accounts or
question; other documents which cannot be examined
4. Any person who was present when the in court without great loss of time and the fact
contents of the document were talked sought to be established from them is only the
over between the parties thereto to such general result of the whole; and
an extent as to give him reasonably full
information as to its contents; (d) the original is a public record in the custody of
5. Any person to whom the parties to the a public officer or is recorded in a public office
instrument have confessed or stated the – contents may be proved by a certified copy
contents thereof. issued by the public officer in custody thereof
To prove loss, get affidavits of loss from all the

people who possibly has a copy of the original, CASES:
e.g. Notarized Deed of Sale
a) Vendor
de Vera v Aguilar, 218 SCRA 602 (1983) In case
b) vendee of loss of the original of a document, the order of
c) notary public proof is as follows; 1) existence of the original, 2)
its due execution, 3) loss, and 4) its contents.
d) clerk of the court which gave the notary Failure to prove loss of all the originals without
public commission fault of the offeror renders secondary evidence
e) Bureau of Archives inadmissible.
Vda. de Corpus v. Brabangco, (C.A.) 59 O.G.

Requisites for admission of secondary 8262 (1963)– when the existence of a document is
evidence, according to grounds proven, the court should allow the lost document
to be proven by parole; testimony of a witness
(a) the original has been lost or destroyed, or need not be verbatim.
cannot be produced in court
Remedy; Lost Documents; Secondary Evidence (1992)
________________________________________________________________________________________________
Ajax Power Corporation, a utility company, sued in the Municipality of Victorias v. CA, 149 SCRA 32
RTC to enforce a supposed right of way over a (1987)
property owned by Simplicio. At the ensuing trial, Ajax Facts: In action to recover land, a party failed to
presented its retired field auditor who testified that he produce the deed of sale, but presented only a
know for a fact that a certain sum of money was Certificate from the Archives Division of the
periodically paid to Simplicio for some time as Bureau of Records Management of an entry in a
consideration for a right of way pursuant to a written Notarial register.
contract. The original contract was not presented. Held: Certificate is admissible. Where the
Instead, a purported copy, identified by the retired original has been lost or destroyed, the offeror
field auditor as such, was formally offered as part of may prove its contents by a recital of its
his testimony. Rejected by the trial court, it was finally contents in some authentic document or by
made the subject of an offer of proof by Ajax. Can testimony of witnesses. The Certificate is one
Ajax validly claim that it had sufficiently met its burden such authentic document.
of proving the existence of the contract establishing its
right of way? Explain, Section 8. Party who calls for document not
SUGGESTED ANSWER: bound to offer it. — A party who calls for the
No. Ajax had not sufficiently met the burden of production of a document and inspects the same
proving the existence of the written contract because. is not obliged to offer it as evidence. (6a)
It had not laid the basis for the admission of a
purported copy thereof as secondary evidence. Ajax
should have first proven the execution of the original
document and its loss or destruction. (Sec. 5 of Rule 130) Republic of the Philippines
SUPREME COURT
Section 6. When original document is in Manila
adverse party's custody or control. — If the
document is in the custody or under the control of A.M. No. 01-7-01-SC July 17, 2001
adverse party, he must have reasonable notice to
produce it. If after such notice and after
RULES ON ELECTRONIC EVIDENCE
satisfactory proof of its existence, he fails to
produce the document, secondary evidence may
be presented as in the case of its loss. (5a) Acting on the Memorandum dated 18 June 2001
of the Committee on the Revision of the Rules of
Court to Draft the Rules on E-Commerce Law
NOTE: It is not necessary to show that the
[R.A. No. 8792] submitting the Rules on Electronic
original is in the actual possession of the
Evidence for this Court's consideration and
adverse party. It is enough that the
approval, the Court Resolved to APPROVED the
circumstances are such as to indicate that the
same.
writing is in his possession.
If there is failure to produce the original despite The Rules on Electronic Evidence shall apply to
reasonable notice, the adverse party is cases pending after their effectivity. These Rules
afterwards forbidden to produce the document in shall take effect on the first day of August 2001
order to contradict the other party’s copy or following their publication before the 20th of July in
evidence of its contents or it may also be two newspapers of general circulation in the
regarded as judicial admission in advance of the Philippines
correctness of the first party’s evidence. It also
gives rise to the presumption of suppression of 17th July 2001.
evidence
RULES ON ELECTRONIC EVIDENCE
Section 7. Evidence admissible when original
document is a public record. — When the Rule 1
original of document is in the custody of public COVERAGE
officer or is recorded in a public office, its contents
may be proved by a certified copy issued by the Section 1. Scope. – Unless otherwise provided
public officer in custody thereof. (2a) herein, these Rules shall apply whenever an
electronic document or electronic data message,
NOTE: Connect this to Rule 132, sections 23 to as defined in Rule 2 hereof, is offered or used in
27. evidence.

________________________________________________________________________________________________
Section 2. Cases covered. – These Rules shall expression or perform any one or more of
apply to all civil actions and proceedings, as well these functions.
as quasi-judicial and administrative cases.
(e) "Digital signature" refers to an
Note: Criminal actions are not included based on electronic signature consisting of a
the rules. However recent decision of the transformation of an electronic document
Supreme Court has expanded the Coverage of the or an electronic data message using an
Rules on Electronic Evidence – under A.M. No. asymmetric or public cryptosystem such
01-7-01-SC and the rules shall apply to all criminal that a person having the initial
and civil actions and proceedings, as well as untransformed electronic document and
quasi-judicial and administrative cases. (People the signer's public key can accurately
of the Philippines v. Enojas, GR. No. 204894, determine:
March 10, 2014)
i. whether the transformation was
Section 3. Application of other rules on evidence. created using the private key that
– In all matters not specifically covered by these corresponds to the signer's public
Rules, the Rules of Court and pertinent provisions key; and
of statutes containing rules on evidence shall
apply. ii. whether the initial electronic
document had been altered after
Rule 2 the transformation was made.
DEFINITION OF TERMS AND CONSTRUCTION
(f) "Digitally signed" refers to an electronic
Section 1. Definition of terms. – For purposes of document or electronic data message
these Rules, the following terms are defined, as bearing a digital signature verified by the
follows: public key listed in a certificate.
(a) "Asymmetric or public cryptosystem" (g) "Electronic data message" refers to

means a system capable of generating a information generated, sent, received or
secure key pair, consisting of a private stored by electronic, optical or similar
key for creating a digital signature, and a means.
public key for verifying the digital
signature. (h) "Electronic document" refers to
information or the representation of
(b) "Business records" include records of information, data, figures, symbols or
any business, institution, association, other modes of written expression,
profession, occupation, and calling of described or however represented, by
every kind, whether or not conducted for which a right is established or an
profit, or for legitimate or illegitimate obligation extinguished, or by which a fact
purposes. may be proved and affirmed, which is
received, recorded, transmitted, stored,
(c) "Certificate" means an electronic processed, retrieved or produced
document issued to support a digital electronically. It includes digitally signed
signature which purports to confirm the documents and any print-out or output,
identity or other significant characteristics readable by sight or other means, which
of the person who holds a particular key accurately reflects the electronic data
pair. message or electronic document. For
purposes of these Rules, the term
"electronic document" may be used
(d) "Computer" refers to any single or
interchangeably with "electronic data
interconnected device or apparatus,
message".
which, by electronic, electro-mechanical
or magnetic impulse, or by other means
with the same function, can receive, (i) "Electronic key" refers to a secret code
record, transmit, store, process, correlate, which secures and defends sensitive
analyze, project, retrieve and/or produce information that crosses over public
information, data, text, graphics, figures, channels into a form decipherable only
voice, video, symbols or other modes of with a matching electronic key.

________________________________________________________________________________________________
(j) "Electronic signature" refers to any Rule 3

distinctive mark, characteristic and/or ELECTRONIC DOCUMENTS
sound in electronic form, representing the
identity of a person and attached to or Section 1. Electronic documents as functional
logically associated with the electronic equivalent of paper-based documents. –
data message or electronic document or Whenever a rule of evidence refers to the term
any methodology or procedure employed writing, document, record, instrument,
or adopted by a person and executed or memorandum or any other form of writing, such
adopted by such person with the intention term shall be deemed to include an electronic
of authenticating, signing or approving an document as defined in these Rules.
electronic data message or electronic
document. For purposes of these Rules, Admissibility; Electronic Evidence (2003)
an electronic signature includes digital a) State the rule on the admissibility of an electronic
signatures. evidence. b) When is an electronic evidence regarded
as being the equivalent of an original document under
(k) "Ephemeral electronic the Best Evidence Rule? 4%
communication" refers to telephone SUGGESTED ANSWER:
conversations, text messages, chatroom (a) Whenever a rule of evidence refers to the term
sessions, streaming audio, streaming writing, document, record, instrument, memorandum
video, and other electronic forms of or any other form of writing, such term shall be
communication the evidence of which is deemed to include an electronic document as defined
not recorded or retained. in these Rules.
(Sec. 1 of Rule 3, Rules of Electronic Evidence effective August 1, 2001).
(l) "Information and communication An electronic document is admissible in evidence if it
system" refers to a system for generating, complies with the rules on admissibility prescribed by
sending, receiving, storing or otherwise the Rules of Court and related laws and is
processing electronic data messages or authenticated in the manner prescribed by these Rules.
electronic documents and includes the (Sec. 2 of Rule 3, Id.). The authenticity of any private
computer system or other similar devices electronic document must be proved by evidence that
by or in which data are recorded or stored it had been digitally signed and other appropriate
and any procedure related to the security measures have been applied. (Sec. 2 of Rule 5, Id.).
recording or storage of electronic data (b) An electronic document shall be regarded as the
messages or electronic documents. equivalent of an original document under the Best
Evidence Rule if it is a printout or output readable by
(m) "Key pair" in an asymmetric sight or other means, shown to reflect the data
cryptosystem refers to the private key and accurately. (Sec. 1 of Rule 4)
its mathematically related public key such
that the latter can verify the digital Actions; Hold Departure Order (2010) No.
signature that the former creates. XVIII. While window-shopping at the mall on
August 4, 2008, Dante lost his organizer
(n) "Private key" refers to the key of a key including his credit card and billing
pair used to create a digital signature. statement. Two days later, upon reporting the
matter to the credit card company, he
(o) "Public key" refers to the key of a key learned that a one-way airplane ticket was
pair used to verify a digital signature. purchased online using his credit card for a
flight to Milan in mid- August 2008. Upon
Section 2. Construction. – These Rules shall be extensive inquiry with the airline company,
liberally construed to assist the parties in obtaining Dante discovered that the plane ticket was
a just, expeditious, and inexpensive determination under the name of one Dina Meril. Dante
of cases. approaches you for legal advice.
(a) What is the proper procedure to prevent

The interpretation of these Rules shall also take
Dina from leaving the Philippines? (2%)
into consideration the international origin of
SUGGESTED ANSWER: I would advise:
Republic Act No. 8792, otherwise known as the
(1) The filing of an appropriate criminal
Electronic Commerce Act.
action cognizable by the RTC against Dina
and the filing in said criminal action a
Motion for the issuance of a Hold

________________________________________________________________________________________________
Departure Order; (2) thereafter, a written Corp., cited in Torres vs. Pagcor, GR No. 193531,
request with the Commissioner of the Dec. 14, 2011).
Bureau of Immigration for a Watch List
Order pending the issuance of the Hold Best Evidence Rule; Electronic Evidence
Departure Order should be filed; (3) then, (2009)
the airline company should be requested No.XI. [d] An electronic evidence is the
to cancel the ticket issued to Dina. equivalent of an original document under the
Best Evidence Rule if it is a printout or
(b) Suppose an Information is filed against readable by sight or other means, shown to
Dina on August 12, 2008 and she is reflect the data accurately. SUGGESTED
immediately arrested. What pieces of ANSWER: TRUE. This statement is
electronic evidence will Dante have to secure embodied in Sec. 1, Rule 4 of A.m. No. 01-
in order to prove the fraudulent online 7-01-SC, re: Rules on Electronic Evidence.
transaction? (2%) SUGGESTED ANSWER:
He will have to present (a) his report to
the bank that he lost his credit card (b) Section 2. Copies as equivalent of the
that the ticket was purchased after the originals. – When a document is in two or more
report of the lost and (c) the purchase of copies executed at or about the same time with
one-way ticket. Dante should bring an identical contents, or is a counterpart produced by
original (or an equivalent copy) printout the same impression as the original, or from the
of: 1) the online ticket purchase using his same matrix, or by mechanical or electronic re-
credit card; 2) the phone call log to show recording, or by chemical reproduction, or by other
that he already alerted the credit card equivalent techniques which accurately
company of his loss; and 3) his credit card reproduces the original, such copies or duplicates
billing statement bearing the online ticket shall be regarded as the equivalent of the original.
transaction.
Notwithstanding the foregoing, copies or
duplicates shall not be admissible to the same
extent as the original if:
Section 2. Admissibility. – An electronic document (a) a genuine question is raised as to the

is admissible in evidence if it complies with the authenticity of the original; or
rules on admissibility prescribed by the Rules of
Court and related laws and is authenticated in the (b) in the circumstances it would be unjust
manner prescribed by these Rules. or inequitable to admit the copy in lieu of
the original.
Section 3. Privileged communication. – The
confidential character of a privileged Rule 5
communication is not lost solely on the ground AUTHENTICATION OF ELECTRONIC
that it is in the form of an electronic document. DOCUMENTS
Section 1. Burden of proving authenticity. –

The person seeking to introduce an electronic
Rule 4 document in any legal proceeding has the burden
BEST EVIDENCE RULE of proving its authenticity in the manner provided
in this Rule.
Section 1. Original of an electronic document.
– An electronic document shall be regarded as the Section 2. Manner of authentication. – Before
equivalent of an original document under the Best any private electronic document offered as
Evidence Rule if it is a printout or output readable authentic is received in evidence, its authenticity
by sight or other means, shown to reflect the data must be proved by any of the following means:
accurately.
(a) by evidence that it had been digitally
Note: A facsimile transmission is not considered signed by the person purported to have
as an electronic evidence under the Electronic signed the same;
Commerce Act (MCC Industrial vs. Sangyong

________________________________________________________________________________________________
(b) by evidence that other appropriate Section 2. Authentication of electronic signatures.

security procedures or devices as may be – An electronic signature may be authenticated in
authorized by the Supreme Court or by any of the following manner:
law for authentication of electronic
documents were applied to the document; (a) By evidence that a method or process
or was utilized to establish a digital signature
and verify the same;
(c) by other evidence showing its integrity
and reliability to the satisfaction of the (b) By any other means provided by law;
judge. or
(c) By any other means satisfactory to the

judge as establishing the genuineness of
Bar Exam Question 2012 the electronic signature.
47. A private electronic document's
authenticity may be received in evidence Section 3. Disputable presumptions relating to
when it is proved by: electronic signatures. – Upon the authentication of
a. evidence that it was electronically an electronic signature, it shall be presumed that:
notarized.
b. evidence that it was digitally signed by (a) The electronic signature is that of the
the person who purportedly signed the person to whom it correlates;
same.
c. evidence that it contains electronic data (b) The electronic signature was affixed by
messages. that person with the intention of
d. evidence that a method or process was authenticating or approving the electronic
utilized to verify the same. document to which it is related or to
SUGGESTED ANSWER: indicate such person's consent to the
(b), Before any private electronic transaction embodied therein; and
document is offered as authentic is
received in evidence, its authenticity (c) The methods or processes utilized to
must be proved by evidence that it had affix or verify the electronic signature
been digitally signed by the person operated without error or fault.
purported to have signed the same. (Rule
5, Sec. 2(a), Rules on Evidence).
Section 4. Disputable presumptions relating to
digital signatures. – Upon the authentication of a
digital signature, it shall be presumed, in addition
to those mentioned in the immediately preceding
Section 3. Proof of electronically notarized section, that:
document. – A document electronically notarized
in accordance with the rules promulgated by the (a) The information contained in a
Supreme Court shall be considered as a public certificate is correct;
document and proved as a notarial document
under the Rules of Court.
(b) The digital signature was created
during the operational period of a
certificate;
(c) No cause exists to render a certificate

Rule 6 invalid or revocable;
ELECTRONIC SIGNATURES
(d) The message associated with a digital
Section 1. Electronic signature. – An electronic signature has not been altered from the
signature or a digital signature authenticated in the time it was signed; and,
manner prescribed hereunder is admissible in
evidence as the functional equivalent of the
(e) A certificate had been issued by the
signature of a person on a written document.
certification authority indicated therein.

________________________________________________________________________________________________
Rule 7 reasonable grounds to doubt the integrity

EVIDENTIARY WEIGHT OF ELECTRONIC of the information and communication
DOCUMENTS system;
Section 1. Factors for assessing evidentiary (b) Whether the electronic document was
weight. – In assessing the evidentiary weight of an recorded or stored by a party to the
electronic document, the following factors may be proceedings with interest adverse to that
considered: of the party using it; or
(a) The reliability of the manner or method (c) Whether the electronic document was
in which it was generated, stored or recorded or stored in the usual and
communicated, including but not limited to ordinary course of business by a person
input and output procedures, controls, who is not a party to the proceedings and
tests and checks for accuracy and who did not act under the control of the
reliability of the electronic data message party using it.
or document, in the light of all the
circumstances as well as any relevant Rule 8
agreement; BUSINESS RECORDS AS EXCEPTION TO THE
HEARSAY RULE
(b) The reliability of the manner in which
its originator was identified; Section 1. Inapplicability of the hearsay rule. –
A memorandum, report, record or data compilation
(c) The integrity of the information and of acts, events, conditions, opinions, or diagnoses,
communication system in which it is made by electronic, optical or other similar means
recorded or stored, including but not at or near the time of or from transmission or
limited to the hardware and computer supply of information by a person with knowledge
programs or software used as well as thereof, and kept in the regular course or conduct
programming errors; of a business activity, and such was the regular
practice to make the memorandum, report, record,
(d) The familiarity of the witness or the or data compilation by electronic, optical or similar
person who made the entry with the means, all of which are shown by the testimony of
communication and information system; the custodian or other qualified witnesses, is
excepted from the rule on hearsay evidence.
(e) The nature and quality of the
information which went into the Section 2. Overcoming the presumption. – The
communication and information system presumption provided for in Section 1 of this Rule
upon which the electronic data message may be overcome by evidence of the
or electronic document was based; or untrustworthiness of the source of information or
the method or circumstances of the preparation,
transmission or storage thereof.
(f) Other factors which the court may
consider as affecting the accuracy or
integrity of the electronic document or Rule 9
electronic data message. METHOD OF PROOF
Section 2. Integrity of an information and Section 1. Affidavit evidence. – All matters

communication system. – In any dispute involving relating to the admissibility and evidentiary weight
the integrity of the information and communication of an electronic document may be established by
system in which an electronic document or an affidavit stating facts of direct personal
electronic data message is recorded or stored, the knowledge of the affiant or based on authentic
court may consider, among others, the following records. The affidavit must affirmatively show the
factors: competence of the affiant to testify on the matters
contained therein.
(a) Whether the information and
communication system or other similar Section 2. Cross-examination of deponent. – The
device was operated in a manner that did affiant shall be made to affirm the contents of the
not affect the integrity of the electronic affidavit in open court and may be cross-examined
document, and there are no other as a matter of right by the adverse party.

________________________________________________________________________________________________
Rule 10 If the foregoing communications are recorded or

EXAMINATION OF WITNESSES embodied in an electronic document, then the
provisions of Rule 5 shall apply.
Section 1. Electronic testimony. – After summarily
hearing the parties pursuant to Rule 9 of these Bar Exam Question 2012
Rules, the court may authorize the presentation of 46. Under the Rules of Electronic Evidence,
testimonial evidence by electronic means. Before "ephemeral electronic conversation" refers to
so authorizing, the court shall determine the the following, except:
necessity for such presentation and prescribe a. text messages;
terms and conditions as may be necessary under b. telephone conversations;
the circumstances, including the protection of the c. faxed document;
rights of the parties and witnesses concerned. d. online chatroom sessions;
SUGGESTED ANSWER:
Section 2. Transcript of electronic testimony. – (c), An “ephemeral electronic
When examination of a witness is done communication” refers to telephone
electronically, the entire proceedings, including the conversations, text messages, chatroom
questions and answers, shall be transcribed by a sessions, streaming audio, streaming
stenographer, stenotypist or other recorder video, and other electronic forms of
authorized for the purpose, who shall certify as communications, the evidence of which is
correct the transcript done by him. The transcript not recorded or retained (Sec.1(k), Rule 2).
should reflect the fact that the proceedings, either A facsimile transmission is not considered
in whole or in part, had been electronically as an electronic evidence under the
recorded. Electronic Commerce Act. In MCC
Industrial Sales Corporation vs. Ssangyong
Section 3. Storage of electronic evidence. – The Corporation, the Supreme Court
electronic evidence and recording thereof as well concluded that the terms “electronic data
as the stenographic notes shall form part of the message” and “electronic document,: as
record of the case. Such transcript and recording defined under the Electronic Commerce
shall be deemed prima facie evidence of such Act of 2000, do not include facsimile
proceedings. transmission. Accordingly, a facsimile
transmission cannot be considered as
Rule 11 electronic evidence. It is not the
AUDIO, PHOTOGRAPHIC, VIDEO, AND functional equivalent of an original under
EPHEMERAL EVIDENCE the Best Evidence Rule and is not
admissible as electronic evidence. (Torres
Section 1. Audio, video and similar evidence. – vs. PAGCOR, G.R. No. 193531, December
Audio, photographic and video evidence of events, 14, 2011).
acts or transactions shall be admissible provided it
shall be shown, presented or displayed to the
court and shall be identified, explained or
authenticated by the person who made the Rule 12
recording or by some other person competent to EFFECTIVITY
testify on the accuracy thereof.
Section 1. Applicability to pending cases. – These
Section 2. Ephemeral electronic Rules shall apply to cases pending after their
communications. – Ephemeral electronic effectivity.
communications shall be proven by the testimony
of a person who was a party to the same or has
Section 2. Effectivity. – These Rules shall take
personal knowledge thereof. In the absence or
effect on the first day of August 2001 following
unavailability of such witnesses, other competent
their publication before the 20th of July 2001 in
evidence may be admitted.
two newspapers of general circulation in the
Philippines.
A recording of the telephone conversation or
ephemeral electronic communication shall be
covered by the immediately preceding section.
3. Parol Evidence Rule

________________________________________________________________________________________________
Section 9. Evidence of written agreements. — and agreement of the parties. This is an exception to
When the terms of an agreement have been the parol evidence rule. [Sec. 9(b) of Rule 130, Rules of Court]
reduced to writing, it is considered as containing b) Yes, the copy in the possession of Pedro is a
all the terms agreed upon and there can be, duplicate original and with identical contents. [Sec. 4(b) of
between the parties and their successors in Rule 130]. Moreover, the failure of Lucio to produce the
interest, no evidence of such terms other than the original of the note is excusable because he was not
contents of the written agreement. given reasonable notice, as requirement under the
Rules before secondary evidence may be presented.
However, a party may present evidence to modify, (Sec. 6 of Rule 130, Rules of Court)
explain or add to the terms of written agreement if Note: The promissory note is an actionable document and
he puts in issue in his pleading: the original or a copy thereof should have been attached to
the complaint. (Sec. 7 of Rule 9, 1997 Rules of Civil Procedure). In
(a) An intrinsic ambiguity, mistake or such a case, the genuineness and due execution of the note,
imperfection in the written agreement; if not denied under oath, would be deemed admitted.
(Sec. 8 of Rule 9, 1997 Rules of Civil Procedure)
(b) The failure of the written agreement to Bar Exam Question 2012
express the true intent and agreement of 51. The Parole Evidence Rule applies to:
the parties thereto; a. subsequent agreements placed on issue.
b. written agreements or contractual
(c) The validity of the written agreement; documents.
or c. judgment on a compromise agreement.
d. will and testaments.
(d) The existence of other terms agreed to SUGGESTED ANSWER:
by the parties or their successors in (b), The parol evidence rule, embodied in
interest after the execution of the written Section 9, Rule 130 of the Rules of Court
agreement. holds that when the terms of an
agreement have been reduced into writing,
The term "agreement" includes wills. (7a) it is considered as containing all the terms
agreed upon and there can be, between
Parol Evidence Rule (2001) the parties and their successors-in-
Pedro filed a complaint against Lucio for the recovery interest, no evidence of such terms other
of a sum of money based on a promissory note than the contents of the written
executed by Lucio. In his complaint, Pedro alleged that agreement. (Leighton Contractors Phils.
although the promissory note says that it is payable Inc., vs. CNP industries, Inc., G.R. No.
within 120 days, the truth is that the note is payable 160972, March 9, 2010). Evidently, parol
immediately after 90 days but that if Pedro is willing, evidence only applies to written
he may, upon request of Lucio give the latter up to 120 agreements or contractual documents.
days to pay the note. During the hearing, Pedro ALTERNATIVE ANSWER: (d), Parol
testified that the truth is that the agreement between Evidence Rule applies because the term
him and Lucio is for the latter to pay immediately after “Agreement” includes wills. (Rule 130,
ninety day’s time. Also, since the original note was Sec. 9(e), Rules of Court).
with Lucio and the latter would not surrender to Pedro
the original note which Lucio kept in a place about one
day’s trip from where he received the notice to NOTE: This section is the Parol Evidence Rule.
produce the note and in spite of such notice to
produce the same within six hours from receipt of PURPOSE:
1. To give stability to a written agreement;
such notice, Lucio failed to do so. Pedro presented a
2. To remove the temptation and possibility
copy of the note which was executed at the same time
of perjury;
as the original and with identical contents. a) Over the
3. To prevent possible fraud.
objection of Lucio, will Pedro be allowed to testify as
to the true agreement or contents of the promissory REQUISITES FOR THE APPLICABILITY OF
note? Why? (2%) b) Over the objection of Lucio, can THE RULE:
Pedro present a copy of the promissory note and have 1. There must be a valid contract;
it admitted as valid evidence in his favor? Why? (3%) 2. The terms of the agreement must be
SUGGESTED ANSWER:
reduced to writing;
a) Yes, because Pedro has alleged in his complaint that
the promissory note does not express the true intent

________________________________________________________________________________________________
3. The dispute is between the parties and (e) An agreement of the leasing for a longer
their successors in interest; and period than one year, or for the sale of real
4. There is dispute as to the terms of the
property or of an interest therein;
agreement.
(f) A representation as to the credit of a third
When no timely objection is made to the person.
admission of parol evidence and when the motion
to strike out said evidence came too late and if the Art. 1405. Contracts infringing the Statute of
other party against whom such evidence was Frauds, referred to in No. 2 of article 1403, are
presented cross-examined the witness who ratified by the failure to object to the
testified in respect to the contract, said party will
presentation of oral evidence to prove the same,
[not?] be understood to have waived the benefits
of the law. Parol evidence under those facts is or by the acceptance of benefit under them.
competent and admissible (Abrenica vs. Gonda,
34 Phil. 739). Evidence Aliunde (Extrinsic Evidence)
It is that which is excluded under the Parol
Art. 1403 and 1405 Civil Code Evidence Rule. It a refer to testimonial, real, or
Art. 1403. The following contracts are documentary evidence.
unenforceable, unless they are ratified: Note: The rule applies only to INTEGRATED
xxx AGREEMENTS,. Thus, unless the written
instrument was intended by both parties as the
(2) Those that do not comply with the Statute final and exclusive memorial of their dealings, the
of Frauds as set forth in this number. In the rule does not apply.
following cases an agreement hereafter made
THEORY OF INTEGRATION OF JURAL ACTS
shall be unenforceable by action, unless the
same, or some note or memorandum, thereof, be Under this theory, previous acts and
in writing, and subscribed by the party charged, contemporaneous transactions of the parties are
or by his agent; evidence, therefore, of the deemed integrated and merged in the written
agreement cannot be received without the instrument which they have executed. When the
writing, or a secondary evidence of its contents: parties have reduced their agreement to writing, it
is presumed that they have made the writing the
(a) An agreement that by its terms is not to ONLY repository and memorial of the truth,
be performed within a year from the making and whatever is not found in the writing must be
thereof; understood to have been waived or abandoned.
(b) A special promise to answer for the debt, Exception: COLLATERAL ORAL AGREEMENT
default, or miscarriage of another; It is a contract made prior of contemporaneous
with another agreement and if it is oral and not
(c) An agreement made in consideration of inconsistent with the written contract, it is
marriage, other than a mutual promise to marry; admissible within the exception to the parol
evidence rule.
(d) An agreement for the sale of goods,
chattels or things in action, at a price not less An agreement is collateral when it meets the
than five hundred pesos, unless the buyer accept following requirements:
and receive part of such goods and chattels, or 1. It is not a part of the integrated written
the evidences, or some of them, of such things in agreement in any way;
2. It is not inconsistent with the written
action or pay at the time some part of the agreement in any way, including both the
purchase money; but when a sale is made by express and implied provisions of the
auction and entry is made by the auctioneer in his written agreement;
sales book, at the time of the sale, of the amount 3. It is not closely connected with the
and kind of property sold, terms of sale, price, principal transaction as to form a part and
names of the purchasers and person on whose parcel thereof.
account the sale is made, it is a sufficient NOTE: Parol evidence rule does not apply when
memorandum; collateral oral agreement refers to separate and
distinct subjects.

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Inciong v. CA, 257 SCRA 578 (1996) – PER does

Reason: The parties to a contract cannot be not specify that the agreement be a public
presumed to have embodied in a single writing all document; need not be in any particular form or
the agreements which they have on different signed by the parties; fraud must be corroborated.
subjects.
Cases: 4. Interpretation Of Documents
Canuto v. Mariano, 37 Phil. 840 (1918) – parol

The following are pertinent provisions of the NCC:
may be introduced to prove subsequent
agreement regardless of how soon such
agreement was made. INTERPRETATION OF CONTRACTS
Yu Tek & Co. v. Gonzales, 29 Phil. 384 (1915) – Art. 1370. If the terms of a contract are clear and
Parol evidence inadmissible to incorporate leave no doubt upon the intention of the
additional contemporaneous conditions which are contracting parties, the literal meaning of its
not mentioned at all in the writing, unless there is
fraud or mistake. stipulations shall control.
Land Settlement & Development Corp. v. Garcia If the words appear to be contrary to the evident
Plantation, 7 SCRA 750 (1963) – exception to intention of the parties, the latter shall prevail
PER may be put in issue in answer to over the former. (1281)
counterclaim; when operation of contract made to
depend upon occurrence of an event, which for
that reason is a condition precedent, such may be Art. 1371. In order to judge the intention of the
established by parol evidence, since if it is proven, contracting parties, their contemporaneous and
there will be no contract. subsequent acts shall be principally considered.
(1282)
Maulini v. Serrano, 28 Phil. 640 (1914) – PER
does not apply where the purpose of parol
evidence is to show that no written contract ever Art. 1372. However general the terms of a
existed. contract may be, they shall not be understood to
comprehend things that are distinct and cases
PNB v. Seeto, 91 Phil. 756 (1952) – assurances that are different from those upon which the
made by an indorser that the drawer has funds, parties intended to agree. (1283)
which assurances induced bank to cash the
check, are admissible in evidence.
Art. 1373. If some stipulation of any contract
Woodhouse v. Halili, 93 Phil. 526 (1953) – should admit of several meanings, it shall be
Inducement by fraud may be proved by parol understood as bearing that import which is most
because it goes into the validity of the agreement. adequate to render it effectual. (1284)
Robles v. Lizarraga, 50 Phil. 387 (1927) – parol
may be received regardless of whether the written
Art. 1374. The various stipulations of a contract
agreement contains any reference to the collateral shall be interpreted together, attributing to the
agreement and whether the action is at law or in doubtful ones that sense which may result from
equity even if it deals with related matters. all of them taken jointly. (1285)
Lechugas v. CA, 143 SCRA 335 (1986) – PER not Art. 1375. Words which may have different
applicable where suit is between one of the parties
to the document and 3rd persons; PER does not significations shall be understood in that which is
apply and may not be invoked by either party to most in keeping with the nature and object of the
the litigation against the other, where at least one contract. (1286)
of the parties to the suit is not party or privy to the
written agreement and does not base a claim on Art. 1376. The usage or custom of the place shall
the instrument; both parties to the agreement must
be borne in mind in the interpretation of the
be parties to the suit.
ambiguities of a contract, and shall fill the

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omission of stipulations which are ordinarily Section 14. Peculiar signification of terms. —
established. (1287) The terms of a writing are presumed to have been
used in their primary and general acceptation, but
evidence is admissible to show that they have a
Art. 1377. The interpretation of obscure words or local, technical, or otherwise peculiar signification,
stipulations in a contract shall not favor the party and were so used and understood in the particular
who caused the obscurity. (1288) instance, in which case the agreement must be
construed accordingly. (12)
Art. 1378. When it is absolutely impossible to
settle doubts by the rules established in the Section 15. Written words control printed. —
When an instrument consists partly of written
preceding articles, and the doubts refer to
words and partly of a printed form, and the two are
incidental circumstances of a gratuitous contract, inconsistent, the former controls the latter. (13)
the least transmission of rights and interests shall
prevail. If the contract is onerous, the doubt shall Section 16. Experts and interpreters to be used
be settled in favor of the greatest reciprocity of in explaining certain writings. — When the
interests. characters in which an instrument is written are
difficult to be deciphered, or the language is not
understood by the court, the evidence of persons
If the doubts are cast upon the principal object of
skilled in deciphering the characters, or who
the contract in such a way that it cannot be understand the language, is admissible to declare
known what may have been the intention or will the characters or the meaning of the language.
of the parties, the contract shall be null and void. (14)
(1289)
Section 17. Of Two constructions, which
Art. 1379. The principles of interpretation stated preferred. — When the terms of an agreement
have been intended in a different sense by the
in [Rule 123 of] the Rules of Court shall likewise
different parties to it, that sense is to prevail
be observed in the construction of contracts. against either party in which he supposed the
other understood it, and when different
Section 10. Interpretation of a writing according constructions of a provision are otherwise equally
to its legal meaning. — The language of a writing proper, that is to be taken which is the most
is to be interpreted according to the legal meaning favorable to the party in whose favor the provision
it bears in the place of its execution, unless the was made. (15)
parties intended otherwise. (8)
Note: Capital Insurance v. Sadang, 21 SCRA
Section 11. Instrument construed so as to give 1183 (1967) – doubt resolved against one who
effect to all provisions. — In the construction of prepared the document
an instrument, where there are several provisions
or particulars, such a construction is, if possible, to Section 18. Construction in favor of natural
be adopted as will give effect to all. (9) right. — When an instrument is equally
susceptible of two interpretations, one in favor of
Section 12. Interpretation according to natural right and the other against it, the former is
intention; general and particular provisions. — to be adopted. (16)
In the construction of an instrument, the intention
of the parties is to be pursued; and when a Section 19. Interpretation according to usage.
general and a particular provision are inconsistent, — An instrument may be construed according to
the latter is paramount to the former. So a usage, in order to determine its true character.
particular intent will control a general one that is (17)
inconsistent with it. (10)
INTRINSIC OR LATENT AMBIGUITY
Section 13. Interpretation according to It is when the writing on its face appears clear and
circumstances. — For the proper construction of unambiguous but there are collateral matters or
an instrument, the circumstances under which it circumstances which make the meaning uncertain.
was made, including the situation of the subject
thereof and of the parties to it, may be shown, so EXTRINSIC OF PATENT AMBIGUITY
that the judge may be placed in the position of
those whose language he is to interpret. (11)

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It is when the ambiguity is apparent on the face of NOTE: Parol evidence rule is not applicable to a
the writing itself and requires something to be mere receipt, unless that the receipt can qualify as
added in order to ascertain the meaning of the a valid and enforceable contract.
words used.
Parol evidence cannot be used to ratify or Hence, a receipt being given for the payment of
supplement a void contract. rent due on the lease, parol evidence is
admissible to show that the payment as made by
INTERMEDIATE AMBIGUITY note (Peralta, citing Cruz vs. CA, 192 SCRA 209).
It is where the ambiguity consists in the use of
equivocal words designating the person or subject RULE ON CONDITIONAL AGREEMENTS
matter, parol evidence of collateral or extrinsic
matter may be introduced for the purpose of aiding 1. CONDITIONS PRECEDENT--- It may be
the court in arriving at the meaning of the established by parol evidence because
language used. (this kind of ambiguity result from there is no varying of the terms of the
the use of words susceptible of two [or more] written contract by extrinsic agreement for
interpretation, like dollars, tons, etc). the reason that there is no contract in
existence, there is nothing to which to
NOTE: INTRINSIC and INTERMEDIATE apply the excluding rule.
ambiguities are curable by evidence Aliunde or
extraneous evidence. PATENT ambiguity cannot 2. CONDITIONS SUBSEQUENT--- It may
be cured by evidence Aliunde. not be established by parol evidence.
PRINCIPLE OF “FALSA DEMONSTRARIO NON PAROL EVIDENCE BEST EVIDENCE

NOCET CUM DE CORPORE CONSTAT” RULE RULE
False description does not injure or vitiate a Presupposes that the Contemplates a
document, provided that the thing or person original is available in situation where the
intended has once been sufficiently described. court original is not available
in court and/or there is
Where there are two description in a dispute as to whether
deed, the one as it were superadded to said writing is the
the other and one description being original
complete and sufficient in itself and the Prohibits the varying of Prohibits the
other which is subordinate and the terms of a written introduction of
superadded is incorrect, the incorrect agreement substitutionary
description or feature of circumstance of evidence in lieu of the
description is rejected as surplasage. original document
regardless of whether
Parol evidence is admissible to prove mistake in or not it varies the
the execution of a written agreement. contents of the original
REASON: It would be unjust and iniquitous to Can be invoked only Can be invoked by any
allow enforcement of a written instrument which when the controversy is party to an action
does not reflect or disclose the real meeting of the between the parties to regardless of whether
minds of the parties. the written agreement, or not such party
their privies or any participated or not in
party directly affected the writing involved
ELEMENTS OF MISTAKE: thereby
1. It should be of fact; With the exception of Applies to all kinds of
2. It should be mutual or common to both wills, applies only to writing
parties to the instrument; and documents which are
3. It should be alleged and proved by clear contractual in nature
and convincing evidence. No issue as to the Issue is contents of a
contents of a writing writing
The ground that the written agreement fails to Parol evidence is Secondary evidence is
express the true intent of the parties can only be offered offered
invoked when the contract is literally ambiguous or
obscure in its terms and that the contractual
intention of the parties cannot be understood from
the mere reading of the instrument.
C. TESTIMONIAL EVIDENCE

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1. Qualification of Witnesses
Those persons who, under the law, labor under:
Section 20. Witnesses; their qualifications. —
Except as provided in the next succeeding A. ABSOLUTE DISQUALIFICATION
section, all persons who can perceive, and
perceiving, can make their known perception to 1. Disqualification by reason of mental
others, may be witnesses. incapacity or immaturity (sec. 21);
2. Disqualification by reason of marriage
(sec. 22).
Religious or political belief, interest in the outcome
of the case, or conviction of a crime unless
B. RELATIVE DISQUALIFICATION
otherwise provided by law, shall not be ground for
disqualification. (18a)
1. Disqualification by reason of death or
insanity of adverse party (Dead Man’s
NOTE: As a GR, every person who takes the Statute, sec. 23);
witness stand is presumed to possess the 2. Disqualification on the ground of
qualifications of a witness (Presumption of privileged communication (sec. 24).
competency).
Q: May an attorney be a witness of his own client?
Exception: The following shall be prima evidence A: Yes. When a lawyer is a witness for his client,
the one is of unsound mind: he should leave the trial of the case to other
1. The fact that a person has been recently counsel, except as to merely formal matters.
found to be of unsound mind by a court of
competent jurisdiction; TEST OF COMPETENCY
2. That one is an inmate of an asylum for the Whether the individual has sufficient
insane. understanding to appreciate the nature and
obligation of an oath and sufficient capacity to
REASON: Insanity is presumed to continue as a observe and describe the facts in regard to which
state of mind if it has once existed until the he is called to testify.
contrary is shown. Thus the burden of proof is on
the party offering him to show his competency. A witness is presumed to be competent. The
objection to the competency may be raised at any
The rule on conviction time during the examination or cross-examination;
As a general rule, conviction of a crime does not but it should be made as soon as the facts tending
necessarily disqualify a person to be a witness. to show incompetency are discovered.
Exceptions: VOIR DIRE EXAMINATION
1. A person convicted of falsification of a It is a preliminary examination conducted by the
document, perjury or false testimony is trial judge where the witness is duly sworn to
disqualified from being a witness to a will answer as to his competency to give or hear
(art. 821, NCC); evidence
2. A person seeking to become a state
witness must not have been convicted of CITIZEN’S TESTIMONIAL DUTY
an offense involving moral turpitude (Rule As a general rule, every competent person may be
119, sec. 17 [e]). compelled to bear testimony in the administration
of the laws by the duly constituted courts in of the
country. This can only be invoked by the state
Bar Exam Question 2011 after adequate notice is given, thru subpoena.
(39) Considering the qualifications required of
a would-be witness, who among the following Witnesses subpoenaed by the court are duty
is INCOMPETENT to testify? (A) A person bound to appear and testify, EXCEPT:
under the influence of drugs when the event 1. Chief Executive;
he is asked to testify on took place. 2. Judges of Superior Courts;
(B) A person convicted of perjury who will 3. Members of Congress during sessions;
testify as an attesting witness to a will. 4. Ambassadors;
(C) A deaf and dumb. (D) A mental retardate. 5. Consuls and other diplomatic officials
when there is a treaty holding them
exempt;
THE FOLLOWING CANNOT BE WITNESSES:

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6. Witness who resides more than 100 km. (b) "Child abuse" means physical, psychological,
away from his residence to the place or sexual abuse, and criminal neglect as defined
where he is to testify by ordinary course of in Republic Act No. 7610 and other related laws.
travel, or a detention prisoner if no
permission of the court in which his case (c) "Facilitator" means a person appointed by the
is pending was obtained (Rule 21, sec. court to pose questions to a child.
10).
(d) "Record regarding a child" or "record" means
any photograph, videotape, audiotape, film,
THE RULE ON EXAMINATION OF CHILD
handwriting, typewriting, printing, electronic
WITNESS
recording, computer data or printout, or other
AM NO. 00-4-07-SC memorialization, including any court document,
pleading, or any copy or reproduction of any of the
foregoing, that contains the name, description,
Republic of the Philippines address, school, or any other personal identifying
SUPREME COURT information about a child or his family and that is
Manila produced or maintained by a public agency,
private agency, or individual.
A.M. NO. 004-07-SC November 21, 2000
(e) A "guardian ad litem" is a person appointed by
RULE ON EXAMINATION OF A CHILD the court where the case is pending for a child
WITNESS who is a victim of, accused of, or a witness to a
crime to protect the best interests of the said child.
Section 1. Applicability of the Rule. - Unless
otherwise provided, this Rule shall govern the (f) A "support person" is a person chosen by the
examination of child witnesses who are victims of child to accompany him to testify at or attend a
crime, accused of a crime, and witnesses to crime. judicial proceeding or deposition to provide
It shall apply in all criminal proceedings and non- emotional support for him.
criminal proceedings involving child witnesses.
(g) "Best interests of the child" means the
Section 2. Objectives. - The objectives of this totality of the circumstances and conditions as are
Rule are to create and maintain an environment most congenial to the survival, protection, and
that will allow children to give reliable and feelings of security of the child and most
complete evidence, minimize trauma to children, encouraging to his physical, psychological, and
encourage children to testify in legal proceedings, emotional development. It also means the least
and facilitate the ascertainment of truth. detrimental available alternative for safeguarding
the growth and development of the child.
Section 3. Construction of the Rule. - This Rule
shall be liberally construed to uphold the best (h) "Developmental level" refers to the specific
interests of the child and to promote maximum growth phase in which most individuals are
accommodation of child witnesses without expected to behave and function in relation to the
prejudice to the constitutional rights of the advancement of their physical, socio-emotional,
accused. cognitive, and moral abilities.
Section 4. Definitions. - (i) "In-depth investigative interview" or "disclosure

interview" is an inquiry or proceeding conducted
(a) A "child witness" is any person who at the by duly trained members of a multidisciplinary
time of giving testimony is below the age of team or representatives of law enforcement or
eighteen (18) years. In child abuse cases, a child child protective services for the purpose of
includes one over eighteen (18) years but is found determining whether child abuse has been
by the court as unable to fully take care of himself committed.
or protect himself from abuse, neglect, cruelty,
exploitation, or discrimination because of a Bar Exam Question 2012
physical or mental disability or condition. 49. Under the Rules on Examination of a
child witness, a child witness is one:
a. who is 18 years of age or below at the time
of testifying.

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b. who is below 18 years of age at the time of (7) May remain with the child while the child
the incident/crime to be testified on. waits to testify;
c. who is below 18 years of age at the time
of the giving of testimony. (8) May interview witnesses; and
d. who is 18 years of age in child abuse
cases. (9) May request additional examinations by
SUGGESTED ANSWER: (c), A “child medical or mental health professionals if there
witness” is any person who at the time of is a compelling need therefor.
giving testimony is below the age of
eighteen (18) years. (Sec.4, Rules on (c) The guardian ad litem shall be notified of all
Examination of a Child Witness). proceedings but shall not participate in the trial.
However, he may file motions pursuant to sections
9, 10, 25, 26, 27 and 31(c). If the guardian ad
litem is a lawyer, he may object during trial that
Section 5. Guardian ad litem. - questions asked of the child are not appropriate to
his developmental level.
(a) The court may appoint a guardian ad litem for
a child who is a victim of, accused of, or a witness (d) The guardian ad litem may communicate
to a crime to promote the best interests of the concerns regarding the child to the court through
child. In making the appointment, the court shall an officer of the court designated for that purpose.
consider the background of the guardian ad litem
and his familiarity with the judicial process, social (e) The guardian ad litem shall not testify in any
service programs, and child development, giving proceeding concerning any information,
preference to the parents of the child, if qualified. statement, or opinion received from the child in the
The guardian ad litem may be a member of the course of serving as a guardian ad litem, unless
Philippine Bar. A person who is a witness in any the court finds it necessary to promote the best
proceeding involving the child cannot be interests of the child.
appointed as a guardian ad litem.
(f) The guardian ad litem shall be presumed to
(b) The guardian ad litem: have acted in good faith in compliance with his
duties described in sub-section (b).
(1) Shall attend all interviews, depositions,
hearings, and trial proceedings in which a Section 6. Competency. - Every child is
child participates; presumed qualified to be a witness. However, the
court shall conduct a competency examination of
(2) Shall make recommendations to the court a child, motu proprio or on motion of a party, when
concerning the welfare of the child; it finds that substantial doubt exists regarding the
ability of the child to perceive, remember,
(3) Shall have access to all reports, communicate, distinguish truth from falsehood, or
evaluations, and records necessary to appreciate the duty to tell the truth in court.
effectively advocate for the child, except
privileged communications; (a) Proof of necessity. - A party seeking a
competency examination must present proof of
(4) Shall marshal and coordinate the delivery necessity of competency examination. The age of
of resources and special services to the child; the child by itself is not a sufficient basis for a
competency examination.
(5) Shall explain, in language understandable
to the child, all legal proceedings, including (b) Burden of proof. - To rebut the presumption of
police investigations, in which the child is competence enjoyed by a child, the burden of
involved; proof lies on the party challenging his
competence.
(6) Shall assist the child and his family in
coping with the emotional effects of crime and (c) Persons allowed at competency examination.
subsequent criminal or non-criminal Only the following are allowed to attend a
proceedings in which the child is involved; competency examination:
(1) The judge and necessary court personnel;

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(2) The counsel for the parties; for the child, he shall not be disqualified and may
(3) The guardian ad litem; serve as the interpreter of the child. The
(4) One or more support persons for the child; interpreter, however, who is also a witness, shall
and testify ahead of the child.
(5) The defendant, unless the court
determines that competence can be fully (c) An interpreter shall take an oath or affirmation
evaluated in his absence. to make a true and accurate interpretation.
(d) Conduct of examination. - Examination of a Section 10. Facilitator to pose questions to

child as to his competence shall be conducted child. -
only by the judge. Counsel for the parties,
however, can submit questions to the judge that (a) The court may, motu proprio or upon motion,
he may, in his discretion, ask the child. appoint a facilitator if it determines that the child is
unable to understand or respond to questions
(e) Developmentally appropriate questions. - asked. The facilitator may be a child psychologist,
The questions asked at the competency psychiatrist, social worker, guidance counselor,
examination shall be appropriate to the age and teacher, religious leader, parent, or relative.
developmental level of the child; shall not be
related to the issues at trial; and shall focus on the (b) If the court appoints a facilitator, the respective
ability of the child to remember, communicate, counsels for the parties shall pose questions to
distinguish between truth and falsehood, and the child only through the facilitator. The questions
appreciate the duty to testify truthfully.
shall either be in the words used by counsel or, if
the child is not likely to understand the same, in
(f) Continuing duty to assess competence. - The words that are comprehensible to the child and
court has the duty of continuously assessing the which convey the meaning intended by counsel.
competence of the child throughout his testimony.
(c) The facilitator shall take an oath or affirmation
Section 7. Oath or affirmation. - Before to pose questions to the child according to the
testifying, a child shall take an oath or affirmation meaning intended by counsel.
to tell the truth.
Section 11. Support persons. -
Section 8. Examination of a child witness. -
The examination of a child witness presented in a (a) A child testifying at a judicial proceeding or
hearing or any proceeding shall be done in open making a deposition shall have the right to be
court. Unless the witness is incapacitated to accompanied by one or two persons of his own
speak, or the question calls for a different mode of choosing to provide him emotional support.
answer, the answers of the witness shall be given
orally.
(1) Both support persons shall remain within
the view of the child during his testimony.
The party who presents a child witness or the
guardian ad litem of such child witness may,
however, move the court to allow him to testify in (2) One of the support persons may
the manner provided in this Rule. accompany the child to the witness stand,
provided the support person does not
completely obscure the child from the view of
Section 9. Interpreter for child. -
the opposing party, judge, or hearing officer.
(a) When a child does not understand the English (3) The court may allow the support person to
or Filipino language or is unable to communicate hold the hand of the child or take other
in said languages due to his developmental level, appropriate steps to provide emotional
fear, shyness, disability, or other similar reason, support to the child in the course of the
an interpreter whom the child can understand and proceedings.
who understands the child may be appointed by
the court, motu proprio or upon motion, to interpret
for the child. (4) The court shall instruct the support
persons not to prompt, sway, or influence the
child during his testimony.
(b) If a witness or member of the family of the child
is the only person who can serve as an interpreter

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(b) If the support person chosen by the child is re-cross examinations as often as necessary
also a witness, the court may disapprove the depending on his developmental level.
choice if it is sufficiently established that the
attendance of the support person during the Section 16. Testimonial aids. - The court shall
testimony of the child would pose a substantial permit a child to use dolls, anatomically-correct
risk of influencing or affecting the content of the dolls, puppets, drawings, mannequins, or any
testimony of the child. other appropriate demonstrative device to assist
him in his testimony.
(c) If the support person who is also a witness is
allowed by the court, his testimony shall be Section 17. Emotional security item. - While
presented ahead of the testimony of the child. testifying, a child shall be allowed to have an item
of his own choosing such as a blanket, toy, or doll.
Section 12. Waiting area for child witnesses. -
The courts are encouraged to provide a waiting Section 18. Approaching the witness. - The
area for children that is separate from waiting court may prohibit a counsel from approaching a
areas used by other persons. The waiting area for child if it appears that the child is fearful of or
children should be furnished so as to make a child intimidated by the counsel.
comfortable.
Section 19. Mode of questioning. - The court
Section 13. Courtroom environment. - To create shall exercise control over the questioning of
a more comfortable environment for the child, the children so as to (1) facilitate the ascertainment of
court may, in its discretion, direct and supervise the truth, (2) ensure that questions are stated in a
the location, movement and deportment of all form appropriate to the developmental level of the
persons in the courtroom including the parties, child, (3) protect children from harassment or
their counsel, child, witnesses, support persons, undue embarrassment, and (4) avoid waste of
guardian ad litem, facilitator, and court personnel. time.
The child may be allowed to testify from a place
other than the witness chair. The witness chair or The court may allow the child witness to testify in
other place from which the child testifies may be a narrative form.
turned to facilitate his testimony but the opposing
party and his counsel must have a frontal or profile
view of the child during the testimony of the child. Bar Exam Question 2012
The witness chair or other place from which the 3. A narrative testimony is usually objected
child testifies may also be rearranged to allow the to but the court may allow such testimony if:
child to see the opposing party and his counsel, if a. it would expedite trial and give the
he chooses to look at them, without turning his court a clearer understanding of the
body or leaving the witness stand. The judge need matters related;
not wear his judicial robe. b. the witness is of advanced age;
c. the testimony relates to family genealogy;
Nothing in this section or any other provision of d. the witness volunteers information not
law, except official in-court identification sought by the examiner.
provisions, shall be construed to require a child to SUGGESTED ANSWER: (a), There is no
look at the accused. legal principle which prevents a witness
from giving his testimony in a narrative
form if he is requested to do so by
Accommodations for the child under this section
need not be supported by a finding of trauma to counsel. A witness may be allowed to
the child. testify by narration if it would be the best
way of getting at what he knew or could
state concerning the matter at issue. It
Section 14. Testimony during appropriate
would expedite the trial and would
hours. - The court may order that the testimony of
perhaps furnish the court a clearer
the child should be taken during a time of day
understanding of matters related as they
when the child is well-rested.
occurred. (People vs. Calixto, G.R. No.
92355, January 24, 1991).
Section 15. Recess during testimony. - ALTERNATIVE ANSWER: (b), The Rules
allow persons of tender age to testify in a
The child may be allowed reasonable periods of narrative form because they cannot cope
relief while undergoing direct, cross, re-direct, and with the technicalities of examination of

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witnesses. The same rule should be (a) The prosecutor, counsel or the guardian ad
applied to witnesses of advance age. litem may apply for an order that the testimony of
the child be taken in a room outside the courtroom
and be televised to the courtroom by live-link
television.
Section 20. Leading questions. - The court may
allow leading questions in all stages of Before the guardian ad litem applies for an order
examination of a child if the same will further the under this section, he shall consult the prosecutor
interests of justice. or counsel and shall defer to the judgment of the
prosecutor or counsel regarding the necessity of
applying for an order. In case the guardian ad
Section 21. Objections to questions. -
ltiem is convinced that the decision of the
Objections to questions should be couched in a
prosecutor or counsel not to apply will cause the
manner so as not to mislead, confuse, frighten, or
child serious emotional trauma, he himself may
intimidate the child.
apply for the order.
Section 22. Corroboration. - Corroboration shall
The person seeking such an order shall apply at
not be required of a testimony of a child. His
least five (5) days before the trial date, unless the
testimony, if credible by itself, shall be sufficient to
court finds on the record that the need for such an
support a finding of fact, conclusion, or judgment
order was not reasonably foreseeable.
subject to the standard of proof required in
criminal and non-criminal cases.
(b) The court may motu proprio hear and
determine, with notice to the parties, the need for
Section 23. Excluding the public. - When a child
taking the testimony of the child through live-link
testifies, the court may order the exclusion from
television.
the courtroom of all persons, including members
of the press, who do not have a direct interest in
the case. Such an order may be made to protect (c) The judge may question the child in chambers,
the right to privacy of the child or if the court or in some comfortable place other than the
determines on the record that requiring the child to courtroom, in the presence of the support person,
testify in open court would cause psychological guardian ad litem, prosecutor, and counsel for the
harm to him, hinder the ascertainment of truth, or parties. The questions of the judge shall not be
result in his inability to effectively communicate related to the issues at trial but to the feelings of
due to embarrassment, fear, or timidity. In making the child about testifying in the courtroom.
its order, the court shall consider the
developmental level of the child, the nature of the (d) The judge may exclude any person, including
crime, the nature of his testimony regarding the the accused, whose presence or conduct causes
crime, his relationship to the accused and to fear to the child.
persons attending the trial, his desires, and the
interests of his parents or legal guardian. The (e) The court shall issue an order granting or
court may, motu proprio, exclude the public from denying the use of live-link television and stating
the courtroom if the evidence to be produced the reasons therefor. It shall consider the following
during trial is of such character as to be offensive factors:
to decency or public morals. The court may also,
on motion of the accused, exclude the public from (1) The age and level of development of the
trial, except court personnel and the counsel of the child;
parties.
(2) His physical and mental health, including
Section 24. Persons prohibited from entering any mental or physical disability;
and leaving courtroom. - The court may order
that persons attending the trial shall not enter or
leave the courtroom during the testimony of the (3) Any physical, emotional, or psychological
child. injury experienced by him;
Section 25. Live-link television testimony in (4) The nature of the alleged abuse;
criminal cases where the child is a victim or a
witness. - (5) Any threats against the child;

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(6) His relationship with the accused or (3) If it is necessary for the child to identify the
adverse party; accused at trial, the court may allow the child
to enter the courtroom for the limited purpose
(7) His reaction to any prior encounters with of identifying the accused, or the court may
the accused in court or elsewhere; allow the child to identify the accused by
observing the image of the latter on a
television monitor.
(8) His reaction prior to trial when the topic of
testifying was discussed with him by parents
or professionals; (4) The court may set other conditions and
limitations on the taking of the testimony that it
finds just and appropriate, taking into
(9) Specific symptoms of stress exhibited by
consideration the best interests of the child.
the child in the days prior to testifying;
(h) The testimony of the child shall be preserved

(10) Testimony of expert or lay witnesses;
on videotape, digital disc, or other similar devices
which shall be made part of the court record and
(11) The custodial situation of the child and shall be subject to a protective order as provided
the attitude of the members of his family in section 31(b).
regarding the events about which he will
testify; and
Witness; Examination of a Child Witness; via Live-Link
TV (2005) When may the trial court order that the
(12) Other relevant factors, such as court testimony of a child be taken by live-link television?
atmosphere and formalities of court Explain.
procedure. SUGGESTED ANSWER:
The testimony of a child may be taken by live-link
(f) The court may order that the testimony of the television if there is a substantial likelihood that the
child be taken by live-link television if there is a child would suffer trauma from testifying in the
substantial likelihood that the child would suffer presence of the accused, his counsel or the prosecutor
trauma from testifying in the presence of the as the case may be. The trauma must of a kind which
accused, his counsel or the prosecutor as the would impair the completeness or truthfulness of the
case may be. The trauma must be of a kind which testimony of the child. (See Sec. 25, Rule on Examination of a
would impair the completeness or truthfulness of Child Witness).
the testimony of the child.
(g) If the court orders the taking of testimony by

live-link television: Section 26. Screens, one-way mirrors, and
other devices to shield child from accused. -
(1) The child shall testify in a room separate
from the courtroom in the presence of the (a) The prosecutor or the guardian ad litem may
guardian ad litem; one or both of his support apply for an order that the chair of the child or that
persons; the facilitator and interpreter, if any; a screen or other device be placed in the
a court officer appointed by the court; persons courtroom in such a manner that the child cannot
necessary to operate the closed-circuit see the accused while testifying. Before the
television equipment; and other persons guardian ad litem applies for an order under this
whose presence are determined by the court section, he shall consult with the prosecutor or
to be necessary to the welfare and well-being counsel subject to the second and third
of the child; paragraphs of section 25(a) of this Rule. The court
shall issue an order stating the reasons and
(2) The judge, prosecutor, accused, and describing the approved courtroom arrangement.
counsel for the parties shall be in the
courtroom. The testimony of the child shall be (b) If the court grants an application to shield the
transmitted by live-link television into the child from the accused while testifying in the
courtroom for viewing and hearing by the courtroom, the courtroom shall be arranged to
judge, prosecutor, counsel for the parties, enable the accused to view the child.
accused, victim, and the public unless
excluded.
Section 27. Videotaped deposition. -

________________________________________________________________________________________________
(a) The prosecutor, counsel, or guardian ad litem deposition, it is not necessary that the child be
may apply for an order that a deposition be taken able to view an image of the accused.
of the testimony of the child and that it be
recorded and preserved on videotape. Before the (f) The videotaped deposition shall be preserved
guardian ad litem applies for an order under this and stenographically recorded. The videotape and
section, he shall consult with the prosecutor or the stenographic notes shall be transmitted to the
counsel subject to the second and third clerk of the court where the case is pending for
paragraphs of section 25(a). safekeeping and shall be made a part of the
record.
(b) If the court finds that the child will not be able
to testify in open court at trial, it shall issue an (g) The court may set other conditions on the
order that the deposition of the child be taken and taking of the deposition that it finds just and
preserved by videotape. appropriate, taking into consideration the best
interests of the child, the constitutional rights of
(c) The judge shall preside at the videotaped the accused, and other relevant factors.
deposition of a child. Objections to deposition
testimony or evidence, or parts thereof, and the (h) The videotaped deposition and stenographic
grounds for the objection shall be stated and shall notes shall be subject to a protective order as
be ruled upon at the time of the taking of the provided in section 31(b).
deposition. The other persons who may be
permitted to be present at the proceeding are: (i) If, at the time of trial, the court finds that the
child is unable to testify for a reason stated in
(1) The prosecutor; section 25(f) of this Rule, or is unavailable for any
reason described in section 4(c), Rule 23 of the
(2) The defense counsel; 1997 Rules of Civil Procedure, the court may
admit into evidence the videotaped deposition of
(3) The guardian ad litem; the child in lieu of his testimony at the trial. The
court shall issue an order stating the reasons
therefor.
(4) The accused, subject to sub-section (e);
(j) After the original videotaping but before or

(5) Other persons whose presence is
during trial, any party may file any motion for
determined by the court to be necessary to
additional videotaping on the ground of newly
the welfare and well-being of the child;
discovered evidence. The court may order an
additional videotaped deposition to receive the
(6) One or both of his support persons, the newly discovered evidence.
facilitator and interpreter, if any;
Section 28. Hearsay exception in child abuse
(7) The court stenographer; and cases. - A statement made by a child describing
any act or attempted act of child abuse, not
(8) Persons necessary to operate the otherwise admissible under the hearsay rule, may
videotape equipment. be admitted in evidence in any criminal or non-
criminal proceeding subject to the following rules:
(d) The rights of the accused during trial,
especially the right to counsel and to confront and (a) Before such hearsay statement may be
cross-examine the child, shall not be violated admitted, its proponent shall make known to the
during the deposition. adverse party the intention to offer such statement
and its particulars to provide him a fair opportunity
(e) If the order of the court is based on evidence to object. If the child is available, the court shall,
that the child is unable to testify in the physical upon motion of the adverse party, require the child
presence of the accused, the court may direct the to be present at the presentation of the hearsay
latter to be excluded from the room in which the statement for cross-examination by the adverse
deposition is conducted. In case of exclusion of party. When the child is unavailable, the fact of
the accused, the court shall order that the such circumstance must be proved by the
testimony of the child be taken by live-link proponent.
television in accordance with section 25 of this
Rule. If the accused is excluded from the

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(b) In ruling on the admissibility of such hearsay (a) The child witness is unable to testify in court on
statement, the court shall consider the time, grounds and under conditions established under
content and circumstances thereof which provide section 28 (c).
sufficient indicia of reliability. It shall consider the
following factors: (b) The interview of the child was conducted by
duly trained members of a multidisciplinary team
(1) Whether there is a motive to lie; or representatives of law enforcement or child
protective services in situations where child abuse
(2) The general character of the declarant is suspected so as to determine whether child
child; abuse occurred.
(3) Whether more than one person heard the (c) The party offering the videotape or audiotape
statement; must prove that:
(4) Whether the statement was spontaneous; (1) the videotape or audiotape discloses the
identity of all individuals present and at all
times includes their images and voices;
(5) The timing of the statement and the
relationship between the declarant child and
witness; (2) the statement was not made in response
to questioning calculated to lead the child to
make a particular statement or is clearly
(6) Cross-examination could not show the lack
of knowledge of the declarant child; shown to be the statement of the child and not
the product of improper suggestion;
(7) The possibility of faulty recollection of the
declarant child is remote; and (3) the videotape and audiotape machine or
device was capable of recording testimony;
(8) The circumstances surrounding the
(4) the person operating the device was
statement are such that there is no reason to
competent to operate it;
suppose the declarant child misrepresented
the involvement of the accused.
(5) the videotape or audiotape is authentic
and correct; and
(c) The child witness shall be considered
unavailable under the following situations:
(6) it has been duly preserved.
(1) Is deceased, suffers from physical infirmity,
lack of memory, mental illness, or will be The individual conducting the interview of the child
exposed to severe psychological injury; or shall be available at trial for examination by any
party. Before the videotape or audiotape is offered
in evidence, all parties shall be afforded an
(2) Is absent from the hearing and the
opportunity to view or listen to it and shall be
proponent of his statement has been unable
to procure his attendance by process or other furnished a copy of a written transcript of the
proceedings.
reasonable means.
The fact that an investigative interview is not

(d) When the child witness is unavailable, his
videotaped or audiotaped as required by this
hearsay testimony shall be admitted only if
section shall not by itself constitute a basis to
corroborated by other admissible evidence.
exclude from evidence out-of-court statements or
testimony of the child. It may, however, be
Section 29. Admissibility of videotaped and considered in determining the reliability of the
audiotaped in-depth investigative or statements of the child describing abuse.
disclosure interviews in child abuse cases. -
The court may admit videotape and audiotape in-
depth investigative or disclosure interviews as
evidence, under the following conditions:
Section 30. Sexual abuse shield rule. -

________________________________________________________________________________________________
(a) Inadmissible evidence. - The following (6) Other persons as determined by the court.
evidence is not admissible in any criminal
proceeding involving alleged child sexual (b) Protective order. - Any videotape or
abuse: audiotape of a child that is part of the court record
shall be under a protective order that provides as
(1) Evidence offered to prove that the follows:
alleged victim engaged in other sexual
behavior; and (1) Tapes may be viewed only by parties, their
counsel, their expert witness, and the
(2) Evidence offered to prove the sexual guardian ad litem.
predisposition of the alleged victim.
(2) No tape, or any portion thereof, shall be
(b) Exception. - Evidence of specific divulged by any person mentioned in sub-
instances of sexual behavior by the alleged section (a) to any other person, except as
victim to prove that a person other than the necessary for the trial.
accused was the source of semen, injury, or
other physical evidence shall be admissible. (3) No person shall be granted access to the
tape, its transcription or any part thereof
A party intending to offer such evidence must: unless he signs a written affirmation that he
has received and read a copy of the protective
(1) File a written motion at least fifteen order; that he submits to the jurisdiction of the
(15) days before trial, specifically court with respect to the protective order; and
describing the evidence and stating the that in case of violation thereof, he will be
purpose for which it is offered, unless the subject to the contempt power of the court.
court, for good cause, requires a different
time for filing or permits filing during trial; (4) Each of the tape cassettes and transcripts
and thereof made available to the parties, their
counsel, and respective agents shall bear the
(2) Serve the motion on all parties and the following cautionary notice:
guardian ad litem at least three (3) days
before the hearing of the motion. "This object or document and the contents
thereof are subject to a protective order
Before admitting such evidence, the court must issued by the court in (case title) , (case
conduct a hearing in chambers and afford the number) . They shall not be examined,
child, his guardian ad litem, the parties, and their inspected, read, viewed, or copied by any
counsel a right to attend and be heard. The motion person, or disclosed to any person, except as
and the record of the hearing must be sealed and provided in the protective order. No additional
remain under seal and protected by a protective copies of the tape or any of its portion shall be
order set forth in section 31(b). The child shall not made, given, sold, or shown to any person
be required to testify at the hearing in chambers without prior court order. Any person violating
except with his consent. such protective order is subject to the
contempt power of the court and other
Section 31. Protection of privacy and safety. - penalties prescribed by law."
(5) No tape shall be given, loaned, sold, or

(a) Confidentiality of records. - Any record
shown to any person except as ordered by the
regarding a child shall be confidential and kept
court.
under seal. Except upon written request and order
of the court, a record shall only be released to the
following: (6) Within thirty (30) days from receipt, all
copies of the tape and any transcripts thereof
shall be returned to the clerk of court for
(1) Members of the court staff for
safekeeping unless the period is extended by
administrative use;
the court on motion of a party.
(2) The prosecuting attorney;
(3) Defense counsel;
(4) The guardian ad litem; (7) This protective order shall remain in full
(5) Agents of investigating law enforcement force and effect until further order of the court.
agencies; and

________________________________________________________________________________________________
(c) Additional protective orders. - The court his failure to acknowledge the case or recite any
may, motu proprio or on motion of any party, fact related thereto in response to any inquiry
the child, his parents, legal guardian, or the made to him for any purpose.
guardian ad litem, issue additional orders to
protect the privacy of the child. "Records" within the meaning of this sub-section
shall include those which may be in the files of the
(d) Publication of identity contemptuous. - National Bureau of Investigation and with any
Whoever publishes or causes to be published police department or government agency which
in any format the name, address, telephone may have been involved in the case. (Art. 200, P.
number, school, or other identifying D. No. 603)
information of a child who is or is alleged to be
a victim or accused of a crime or a witness Section 32. Applicability of ordinary rules. -
thereof, or an immediate family of the child The provisions of the Rules of Court on
shall be liable to the contempt power of the deposition, conditional examination of witnesses,
court. and evidence shall be applied in a suppletory
character.
(e) Physical safety of child; exclusion of
evidence. - A child has a right at any court Section 33. Effectivity. - This Rule shall take
proceeding not to testify regarding personal effect on December 15, 2000 following its
identifying information, including his name, publication in two (2) newspapers of general
address, telephone number, school, and other circulation.
information that could endanger his physical
safety or his family. The court may, however,
require the child to testify regarding personal Section 21, ROC. Disqualification by reason of
identifying information in the interest of justice. mental incapacity or immaturity. — The
following persons cannot be witnesses:
(f) Destruction of videotapes and
audiotapes. - Any videotape or audiotape of a (a) Those whose mental condition, at the time
child produced under the provisions of this of their production for examination, is such
Rule or otherwise made part of the court that they are incapable of intelligently making
record shall be destroyed after five (5) years known their perception to others;
have elapsed from the date of entry of
judgment.
(b) Children whose mental maturity is such as
to render them incapable of perceiving the
(g) Records of youthful offender. - Where a facts respecting which they are examined and
youthful offender has been charged before of relating them truthfully. (19a)
any city or provincial prosecutor or before any
municipal judge and the charges have been
ordered dropped, all the records of the case People v. de Jesus, 129 SCRA 4 (1984) – even
shall be considered as privileged and may not though feeble minded, there is no showing that
be disclosed directly or indirectly to anyone for she could not convey her ideas by words or signs
any purpose whatsoever. ___ competent; even if she had difficulty
comprehending the questions
Where a youthful offender has been charged and People v. Salomon, 229 SCRA 402 (1993) – being
the court acquits him, or dismisses the case or mental retardate is not per se a disqualification;
commits him to an institution and subsequently although speech was slurred, testimony was
releases him pursuant to Chapter 3 of P. D. No. positive, clear, plain and unambiguous
603, all the records of his case shall also be
People v. Mendoza, G.R. No. 113791, Feb. 2,
considered as privileged and may not be disclosed
1996 – any child, regardless of age, can be a
directly or indirectly to anyone except to determine
witness as long as he meets the qualifications for
if a defendant may have his sentence suspended
competency: observation, recollection, and
under Article 192 of P. D. No. 603 or if he may be
communication
granted probation under the provisions of P. D.
No. 968 or to enforce his civil liability, if said
liability has been imposed in the criminal action. Section 22. Disqualification by reason of
The youthful offender concerned shall not be held marriage. — During their marriage, neither the
under any provision of law to be guilty of perjury or husband nor the wife may testify for or against the
of concealment or misrepresentation by reason of other without the consent of the affected spouse,

________________________________________________________________________________________________
except in a civil case by one against the other, or because it is considered a crime against the wife.
in a criminal case for a crime committed by one When an offense directly attacks, or directly
against the other or the latter's direct descendants impairs the conjugal relation, it comes within the
or ascendants. (20a) exception to the marital disqualification rule.
People v. Castañeda, 88 SCRA 562 (1979) The
PURPOSE: wife can testify against the husband in a case for
To obviate perjury and to prevent domestic falsification of the wife’s signature in public
disunity and unhappiness. documents to sell share of wife in conjugal
REQUISITES: property because it is a crime committed by the
1. The spouse for or against whom the husband against the wife.
testimony is offered is a party to the case;
2. That the spouses are legally married Lezama v Rodriguez, 23 SCRA 1166 (1968) Wife
(includes voidable marriage); who is a co-defendant of her husband in a case of
3. Testimony is offered during the existence collusive fraud, where their interests are not
of the marriage; separate, can not be examined as a hostile
4. Case is not one against the other. witness by the adverse party.
People v. Francisco, 78 Phil. 694 (1947) – when
the husband imputes crime against wife, he
Disqualification by Disqualification by waives the marital disqualification rule.
REASON OF REASON OF
MARRIAGE (sec. 23) MARITAL
PRIVILEGED (sec. 24 Privilege Communication (1998)
[a]) C is the child of the spouses H and W. H sued his wife
Can be invoked only Can be claimed W for judicial declaration of nullity of marriage under
when one of the whether or not the other Article 36 of the Family Code. In the trial, the
spouses is a party to spouse is a party to the following testified over the objection of W: C, H and
the case case D, a doctor of medicine who used to treat W. Rule on
Applies only if marriage Can be claim even if W's objections which are the following:
is still existing when the after the marriage is 1. H cannot testify against her because of the rule on
testimony is offered dissolved marital privilege; [1%]
Constitutes a total Applies only to 2. C cannot testify against her because of the doctrine
prohibition for or confidential
on parental privilege; and [2%]
against the spouse of communications
3. D cannot testify against her because of the doctrine
the witness between the spouses
of privileged communication between patient and
The objection would be
physician. [2%]
raised on the ground of The married person is SUGGESTED ANSWER:
marriage. The married on the stand but the 1. The rule of marital privilege cannot be invoked in
witness would not be objection of the the annulment case under Rule 36 of the Family Code
allowed to take the privileged is raised because it is a civil case filed by one against the other,
stand at all because of when confidential (Sec. 22 , Rule 130. Rules of Court.)
the disqualification. marital communication 2. The doctrine of parental privilege cannot likewise be
Even if the testimony is is inquired into invoked by W as against the testimony of C, their
for or against the child. C may not be compelled to testify but is free to
objecting spouse, the testify against her. (Sec. 25. Rule 130. Rules of Court; Art. 215,
spouse cannot testify Family Code.)
3. D, as a doctor who used to treat W, is disqualified to
NOTE: The disqualification does not apply where testify against W over her objection as to any advice or
an offense directly attacks or directly and vitally treatment given by him or any information which he
impairs the conjugal relations. may have acquired in his professional capacity. (Sec. 24
[c], Rule 130. Rules of Court.)
When there is separation between the spouses, ALTERNATIVE ANSWER:
the marital disqualification rule is sometimes not If the doctor's testimony is pursuant to the
strictly applied (Review Lecture). requirement of establishing the psychological
incapacity of W, and he is the expert called upon to
REASON: Identity of interest disappears. testify for the purpose, then it should be allowed.
(Republic vs. Court of Appeals and Molina, 26S SCRA
Ordoño v. Daquigan, 62 SCRA 270 (1975) The 198.)
wife can therefore testify against her husband in
such a case for rape against her daughter Privilege Communication; Marital Privilege (1989)

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Ody sued spouses Cesar and Baby for a sum of money XYZ, an alien, was criminally charged of promoting
and damages. At the trial, Ody called Baby as his first and facilitating child prostitution and other sexual
witness. Baby objected, joined by Cesar, on the ground abuses under Rep. Act No. 7610. The principal witness
that she may not be compelled to testify against her against him was his Filipina wife, ABC. Earlier, she
husband. Ody insisted and contended that after all, she had complained that XYZ's hotel was being used as a
would just be questioned about a conference they had center for sex tourism and child trafficking. The
with the barangay captain, a matter which is not defense counsel for XYZ objected to the testimony of
confidential in nature. The trial court ruled in favor of ABC at the trial of the child prostitution case and the
Ody. Was the ruling proper? Will your answer be the introduction of the affidavits she executed against her
same if the matters to be testified on were known to husband as a violation of espousal confidentiality and
Baby or acquired by her prior to her marriage to marital privilege rule. It turned out that DEF, the
Cesar? Explain. minor daughter of ABC by her first husband who was
SUGGESTED ANSWER: a Filipino, was molested by XYZ earlier.
No. Under the Rules on Evidence, a wife cannot be Thus, ABC had filed for legal separation from XYZ
examined for or against her husband without his since last year. May the court admit the testimony and
consent, except in civil cases by one against the other, affidavits of the wife, ABC, against her husband, XYZ,
or in a criminal case for a crime committed by one in the criminal case involving child prostitution?
against the other. Since the case was filed by Ody Reason. (5%)
against the spouses Cesar and Baby, Baby cannot be SUGGESTED ANSWER:
compelled to testify for or against Cesar without his Yes. The court may admit the testimony and affidavits of the
consent. (Lezama vs. Rodriguez, 23 SCRA 1166). wife against her husband in the criminal case where it
The answer would be the same if the matters to be involves child prostitution of the wife's daughter. It is not
testified on were known to Baby or acquired by her covered by the marital privilege rule. One exception thereof
is where the crime is committed by one against the other or
prior to her marriage to Cesar, because the marital the latter's direct descendants or ascendants. (Sec. 22, Rule 130).
disqualification rule may be invoked with respect to A crime by the husband against the daughter is a crime
testimony on any fact. It is immaterial whether such against the wife and directly attacks or vitally impairs the
matters were known to Baby before or after her conjugal relation. (Ordono v. Daquigan, 62 SCRA 270 [1975]).
marriage to Cesar.
Privilege Communication; Marital Privilege (2000) Privilege Communication; Marital Privilege (2006)
Vida and Romeo are legally married. Romeo is charged Leticia was estranged from her husband Paul for more
to court with the crime of serious physical injuries than a year due to his suspicion that she was having an
committed against Selmo, son of Vida, stepson of affair with Manuel their neighbor. She was temporarily
Romeo. Vida witnessed the infliction of the injuries on living with her sister in Pasig City. For unknown
Selmo by Romeo. The public prosecutor called Vida to reasons, the house of Leticia's sister was burned, killing
the witness stand and offered her testimony as an the latter. Leticia survived. She saw her husband in the
eyewitness. Counsel for Romeo objected on the vicinity during the incident. Later he was charged with
ground of the marital disqualification rule under the arson in an Information filed with the Regional Trial
Rules of Court. a) Is the objection valid? (3%) b) Will Court, Pasig City. During the trial, the prosecutor
your answer be the same if Vida’s testimony called Leticia to the witness stand and offered her
is offered in a civil case for recovery of personal testimony to prove that her husband committed arson.
property filed by Selmo against Romeo? (2%) Can Leticia testify over the objection of her husband
SUGGESTED ANSWER: on the ground of marital privilege? (5%)
(a) No. While neither the husband nor the wife may ALTERNATIVE ANSWER:
testify for or against the other without the consent of No, Leticia cannot testify over the objection of her
the affected spouse, one exception is if the testimony husband, not under marital privilege which is inapplicable
of the spouse is in a criminal case for a crime and which can be waived, but she would be barred under
committed by one against the other or the latter’s Sec. 22 of Rule 130, which prohibits her from testifying
direct descendants or ascendants. (Sec, 22, Rule 130). The and which cannot be waived (Alvarez v. Ramirez, G.R.
No. 143439, October 14, 2005).
case falls under this exception because Selma is the ALTERNATIVE ANSWER:
direct descendant of the spouse Vide. Yes, Leticia may testify over the objection of her
(b) No. The marital disqualification rule applies this husband. The disqualification of a witness by reason of
time. The exception provided by the rules is in a civil marriage under Sec. 22, Rule 130 of the Revised Rules
case by one spouse against the other. The case here of Court has its exceptions as where the marital
involves a case by Selmo for the recovery of personal relations are so strained that there is no more harmony
property against Vida’s spouse, Romeo. to be preserved. The acts of Paul eradicate all major
aspects of marital life. On the other hand, the State has
Privilege Communication; Marital Privilege (2004)

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an interest in punishing the guilty and exonerating the ALTERNATIVE ANSWER: Yes. Nenita may
innocent, and must have the right to offer the be allowed to testify against Walter. It is
testimony of Leticia over the objection of her husband well settled that the marital
(Alvarez v. Ramirez, G.R. No. 143439, October 14, 2005). disqualification rule does not apply when
the marital and domestic relations
between spouses are strained.
Privilege Communication (2013) No.IX. For In Alvarez vs. Ramirez, G.R. No. 143439,
over a year, Nenita had been estranged from October 14, 2005, the Supreme Court
her husband Walter because of the latter’s citing People vs. Castaneda, 271 SCRA
suspicion that she was having an affair with 504, held that the act of private
Vladimir, a barangay kagawad who lived in respondent in setting fire to the house of
nearby Mandaluyong. Nenita lived in the his sister-in-law Susan Ramirez, Knowing
meantime with her sister in Makati. One day, fully well that his wife was there, and in
the house of Nenita’s sister inexplicably fact with the alleged intent of injuring the
burned almost to the ground. Nenita and her latter, is an act totally alien to the
sister were caught inside the house but harmony and confidences of marital
Nenita survived as she fled in time, while her relation which the disqualification
sister tried to save belongings and was primarily seeks to protect. The criminal
caught inside when the house collapsed. act complained of had the effect of
As she was running away from the burning directly and vitally impairing the conjugal
house, Nenita was surprised to see her relation. It underscored the fact that the
husband also running away from the scene. marital and domestic relations between
Dr. Carlos, Walter’s psychiatrist who lived her and the accused-husband have become
near the burned house and whom Walter so strained that there is no more
medically consulted after the fire, also saw harmony, peace or tranquillity to be
Walter in the vicinity some minutes before preserved. Hence, the identity is non-
the fire. Coincidentally, Fr. Platino, the existent. In such a situation, the security
parish priest who regularly hears Walter’s and confidences of private life which the
confession and who heard it after the fire, law aims to protect are nothing but ideals
also encountered him not too far away from which through their absence, merely leave
the burned house. Walter was charged with a void in the unhappy home. Thus, there
arson and at his trial, the prosecution moved is no reason to apply the Marital
to introduce the testimonies of Nenita, the Disqualification Rule.
doctor and the priest-confessor, who all saw
Walter at the vicinity of the fire at about the (B) May the testimony of Dr. Carlos, Walter’s
time of the fire. (A) May the testimony of psychiatrist, be allowed over Walter’s
Nenita be allowed over the objection of objection? (3%) SUGGESTED ANSWER: Yes.
Walter? (3%) SUGGESTED ANSWER: The testimony of Walter‟s psychiatrist
No. Nenita may not be allowed to testify may be allowed. The privileged
against Walter. Under the Marital communication contemplated under Sec.
Disqualification Rule, during their 24 (c) Rule 130 of the Rules on Evidence
marriage, neither the husband nor the involves only persons authorized to
wife may testify for or against the other practice medicine, surgery or obstetrics. It
without the consent of the affected does not include a Psychiatrist. Moreover,
spouse, except in a civil case by one the privileged communication applies only
against the other, or in a criminal case for in civil cases and not in a criminal case
a crime committed by one against the for arson.
other or the latter‟s direct descendants or Besides, the subject of the testimony of
ascendants (Section 22, Rule 130, Rules Dr. Carlos was not in connection with the
on Evidence). The foregoing exceptions advice or treatment given by him to
cannot apply since it only extends to a Walter, or any information he acquired in
criminal case of one spouse against the attending to Walter in a professional
other or the latter‟s direct ascendants or capacity. The testimony of Dr. Carlos is
descendants. Clearly, Nenita is not the limited only to what he perceived at the
offended party and her sister is not her vicinity of the fire and at the time of the
direct ascendant or descendant for her to fire.
fall within the exception.

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(C) May the testimony of Fr. Platino, the marital disqualification rule because she is
priest-confessor, be allowed over Walter’s not the wife of Mabini. Besides, Graciana
objection? (3%) SUGGESTED ANSWER: Yes. will identify only the cellphone as that of
The Priest can testify over the objection her husband Emilio, not the messages
of Walter. The disqualification requires therein which to her are hearsay.
that the same were made pursuant to a
religious duty enjoined in the course of (C) If Mabini’s objection in question B was
discipline of the sect or denomination to overruled, can he object to the presentation
which they belong and must be of the text message on the ground that it is
confidential and penitential in character, hearsay? (2%) SUGGESTED ANSWER: No,
e.g., under the seal of confession (Sec. 24 Gregoria‟s text message in Emilio‟s
(d) Rule 130, Rules on Evidence). Here, the cellphone is not covered by the hearsay
testimony of Fr. Platino was not rule because it is regarded in the rules of
previously subject of a confession of evidence as independently relevant
Walter or an advice given by him to Walter statement: the text message is not to
in his professional character. The prove the truth of the fact alleged therein
Testimony was merely limited to what Fr. but only as to the circumstances of
Platino perceived “at the vicinity of the whether or not premeditation exists.
fire and at about the time of the fire.”
Hence, Fr. Platino may be allowed to (C) Suppose that shortly before expired,
testify. Emilio was able to send a text message to his
wife Graciana reading “Nasaksak ako. D na
Privilege Communication; Marital me makahinga. Si Mabini ang may gawa
Privilege (2010) No. I. On March 12, 2008, ni2.” Is this message admissible as a dying
Mabini was charged with Murder for fatally declaration? Explain. (3%) SUGGESTED
stabbing Emilio. To prove the qualifying ANSWER: Yes, the text message is
circumstance of evident premeditation, the admissible as a dying declaration since
prosecution introduced on December 11, the same came fdrom the victim who
2009 a text message, which Mabini’s “shortly” expired and it is in respect of
estranged wife Gregoria had sent to Emilio on the cause and circumstance of his death.
the eve of his death, reading: “Honey, The decisive factor that the message was
pa2tayin u ni Mabini. Mtgal n nyang plano made and sent under consciousness of an
i2. Mg ingat u bka ma tsugi k.” impending death, is evidently attendant
(A) A subpoena ad testificandum was served from the victim‟s statement: “D na me
on Gregoria for her to be presented for the makahinga” and the fact that he died
purpose of identifying her cellphone and the shortly after he sent the text message.
tex message. Mabini objected to her However, cellphone messages are regarded
presentation on the ground of marital as electronic evidence, and in a recent
privilege. Resolve. SUGGESTED ANSWER: case (Ang vs. Court of Appeals et al., GR
The objection should be sustained on the NO. 182835, April 20, 2010), the Supreme
ground of the marital disqualification rule Court ruled that the Rules on Electronic
(Rule 130, Sec. 22), not on the ground of Evidence applies only to civil actions,
the “marital privilege” communication quasi-judicial proceedings and
rule (Rule 130, Sec. 24). The marriage administrative proceeding, not to criminal
between Mabini and Gregoria is still actions.
subsisting and the situation at bar does Note: (Rules on electronic evidence is now
not come under the exceptions to the applicable in criminal cases – Genesis)
disqualification by reason of marriage.
ALTERNANTIVE ANSWER: No, the text
(B) Suppose Mabini’s objection in question A message is not admissible as a dying
was sustained. The prosection thereupon declaration because it lacks indication
announced that it would be presenting that the victim was under consciousness
Emilio’s wife Graciana to identify Emilio’s of an impending death. The statement “D
cellphone bearing Gregoria’s text message. na me makahinga” is still unequivocal in
Mabini objected again. Rule on the objection. the text message sent that does not imply
(2%) SUGGESTED ANSWER: The objection consciousness of forth-coming death.
should be overruled. The testimony of
Graciana is not covered by the said

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MARRYING THE WITNESS Incompetency applies whether the deceased died

An accused can effectively “seal the lips” of a before or after the commencement of the action
witness by marrying the witness. As long as valid against him if at the time the testimony is given he
marriage is in existence at the time of the trial, the was already dead and cannot disprove it.
witness spouse cannot be compelled to testify
even where the crime charge is against the NOTE: Only the parties are barred, but the
witness person and even though the marriage was witnesses other than that of the parties can testify.
entered into for the express purpose of
suppressing the testimony.
ASSIGNOR (under this section)
It pertains to the assignor of a cause of action
WHO MAY OBJECT: which has already arisen and not assignor of a
It is ONLY the spouse-party and not the other right before any cause of action accrued.
spouse who is offered as a witness.
Admissibility; Death of Adverse Party (2007) No.II. (a)
This is a testimonial disqualification, as opposed The surviving parties rule bars Maria from testifying for
to the testimonial privilege of ascendants and the claimant as to what the deceased Jose had said to
descendants (Rule 130 §25). Hence, the witness her, in a claim filed by Pedro against the estate of Jose.
has no say whether the objection is to be raised or (3%) SUGGESTED ANSWER: False. The said rule bars
not. The holder of the privilege is the spouse- only parties-plaintiff and their assignors, or persons
litigant. When the spouse-litigant consents to the prosecuting a claim against the estate of a deceased;
testimony, the spouse-witness must testify
it does not cover Maria who is a mere witness.
whether he wants to or not.
Furthermore, the disqualification is in respect of any
matter of fact occurring before the death of said
deceased (Sec. 23, Rule 130, Rules of Court, Razon v.
Intermediate Appellate Court, 207 SCRA 234 [1992]).
Section 23. Disqualification by reason of death It is Pedro who filed the claim against the estate of
or insanity of adverse party. — Parties or Jose.
assignor of parties to a case, or persons in whose
behalf a case is prosecuted, against an executor MARITAL
or administrator or other representative of a DEAD MAN’S DISQUALIFICATION
deceased person, or against a person of unsound STATUTE RULE
mind, upon a claim or demand against the estate Only partial
of such deceased person or against such person disqualification as the
of unsound mind, cannot testify as to any matter of witness is not It is a complete and
fact occurring before the death of such deceased completely disqualified absolute disqualification
person or before such person became of unsound but is only prohibited
mind. (20a) from testifying on the
matters specified
DEADMAN’S STATUTE/THE RULE ON therein
SURVIVING PARTIES Applies only to a civil Applies to civil or
case or special criminal case, subject
REQUISITES: proceeding over the only to the exceptions
1. The witness is a party or assignor of a estate of the deceased provided therein
party to a case or persons on whose or insane person
behalf the case is prosecuted;
2. The action is against the executor or PURPOSE: It is designed to close the lips of the
administrator or other representative of party plaintiff when death has permanently closed
the deceased person or a person of the lips of the party defendant in order to remove
unsound mind; from the surviving party the temptation to give
3. The subject matter of the action is a claim false testimony and the possibility of fictitious
against the estate of such deceased claims against the deceased.
person or person of unsound mind;
4. The testimony refers to any matter of fact
which occurred before the death of such MATTERS PROHIBITED
deceased person or before such person Matters occurring in the presence and within the
became of unsound mind. hearing of decedent to which he might testify of
his personal knowledge if he where alive.

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Abraham v. Recto-Kasten, 4 SCRA 298 (1962) A

FACTS FAVORABLE TO THE DECEASED ARE cross-examination of the disqualified witness is a
NOT PROHIBITED waiver of the dead man’s privilege, even if there
Inasmuch as the statutes are designed to protect was a continuing objection.
the interest of a deceased or insane person, they
Lichauco v. Atlantic Gulf, 84 Phil. 330 (1949) This
do not exclude testimonies which are favorable to
in effect ruled that the Dead Man’s statute can not
the representative of such person.
be invoked against a plaintiff-corporation. Interest
no longer disqualifies a witness.
DEAD MAN’S STATUTE DOES NOT APPLY IN
Officers/stockholder of corporation may testify in a
THE FOLLOWING:
case filed against the estate of a deceased by the
1. Testimonies of mere witnesses who are
corporation
not party plaintiffs, nor their assignors, nor
persons in whose behalf the case is Escolin: In an action where the administrator is the
prosecuted; plaintiff, the defendant may testify on facts
2. If the plaintiff is the executor or occurring prior to the death of the decedent.
administrator or other representative of
Tongco v. Vianzon, 50 Phil 698 (1927) – action
the deceased or person of unsound mind;
must be brought against the estate, not by the
3. In an action against a partnership;
estate, to be covered under the dead man’s
4. If the person or persons mentioned under
the rule files a counterclaim; statute
5. When the testimony refers to fraudulent Escolin: If there is no instrument evidencing the
transactions committed by the persons claim, it would be difficult to prove the claim in the
mentioned in the rule, provided that fraud estate proceeding because of the dead man’s
has been clearly established by other statute. However, if there is such an instrument, it
evidence; is not barred by the dead man’s statute (Neibert v.
6. When there is waiver; Neibert)
7. When the testimony of a plaintiff refers to
the non-occurrence of a fact because in Goñi v. CA, 144 SCRA 222 (1986) – heirs of a
that case, the plaintiff does not testify on deceased are “representatives” within the ambit of
the occurrence of a fact but of its non- the dead man’s statute; waived by defendant if he
occurrence; files counterclaim against plaintiff; adverse party
8. In cadastral cases since there is neither may testify to transactions or communications with
plaintiff nor defendant; deceased which were made with an agent of such
9. Testimony on the possession by witness person if the agents is still alive and can testify as
of a written instrument made by the long as it is confined to the transactions
deceased, as such fact exists even after
the decedent’s demise. Section 24. Disqualification by reason of
privileged communication. — The following
CASES: persons cannot testify as to matters learned in
confidence in the following cases:
Razon v. IAC, 207 SCRA 234 (1992) The dead
man’s statute does not apply where the case is (a) The husband or the wife, during or
filed by the estate. Besides, cross-examination of after the marriage, cannot be examined
the witness is a waiver of the privilege. without the consent of the other as to any
communication received in confidence by
Reyes v. Wells, 54 Phil 102 (1929) If the witness
one from the other during the marriage
sought to be disqualified is not the plaintiff (e.g.
except in a civil case by one against the
disinterested 3rd party), the dead man’s statute is
other, or in a criminal case for a crime
not applicable.
committed by one against the other or the
Guerrero v. St. Clare’s Realty, 124 SCRA 553 latter's direct descendants or ascendants;
(1983) Mere witnesses not parties to the case are
not disqualified by the dead man’s statute. REQUISITES:
Furthermore, the rule requires that the defendant 1. There was a valid marital relation;
must be the estate. It does not apply where the 2. The privileged is invoked with
heirs are being sued in their individual capacities. respect to a confidential
“Representatives” are only those who, like the information between the spouses
executor, one sued in their representative, not during said marriage; and
personal, capacity

________________________________________________________________________________________________
3. The spouse against whom the

evidence is offered has not given PURPOSE: To encourage full disclosure
his/her consent to such testimony. by client to his attorney of all pertinent
matters so as to further the administration
NOTE: There is presumption of of justice.
confidentiality on all communication
between husband and wife. TEST: Whether the communications are
made to the attorney with a view of
Communication overheard by third obtaining from him professional
persons without the knowledge of the assistance or advice regardless of
spouses is still confidential but third party whether there is a pending or merely
is not disqualified to testify. Note, that the impending litigation or any litigation.
testimony of the 3rd person may be
hearsay and may not be admitted.
However, it may be admitted for the Attorney-Client Privilege DOES NOT
purpose of or as an evidence of the fact APPLY to communications which are:
that said spouse confided to the other 1. Intended to be made public;
spouse about certain matter [Independent 2. Intended to be communicated to
Relevant Statement]. others;
3. Received from 3rd persons not
Where there is collusion and voluntary acting as agents or in behalf of
disclosure to third party, the latter the client;
becomes an agent and cannot testify. 4. Intended for an unlawful purpose;
5. Made in the presence of third
Communication in furtherance of fraud parties who are strangers to the
and crime is not privileged. attorney-client relationship.
(b) An attorney cannot, without the GR: A lawyer may not invoke the privilege
consent of his client, be examined as to and refuse to divulge the name or identity
any communication made by the client to of his client.
him, or his advice given thereon in the
course of, or with a view to, professional EXCEPTIONS:
employment, nor can an attorney's 1. Where a strong possibility exists
secretary, stenographer, or clerk be that revealing the client’s name
examined, without the consent of the would implicate the client in the
client and his employer, concerning any very activity for which he sought
fact the knowledge of which has been the lawyer’s advice;
acquired in such capacity; 2. Where disclosure would open the
client to civil liability;
3. Where the prosecutors have no
case against the client, unless by
revealing the client’s name, the
REQUISITES: said name would furnish the
1. Witness is a lawyer; missing link that would form the
2. There is an attorney-client chain of testimony necessary to
relationship; convict an individual for a crime
3. The privileged is invoked with (Regala vs. Sandiganbayan, 262
respect to a confidential SCRA 122).
communication between them in
the course of professional
employment; WORK-PRODUCT RULE
4. The client has not given consent The court cannot demand that the
to the attorney’s testimony prepared draft of a lawyer regarding a
thereon; or if the attorney’s case be produced in court.
secretary, stenographer, or clerk
is sought to be examined, that
both the client and the attorney Privilege Communication; Lawyer-Client
have not given their consent (2008)
thereto.

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No.XIV. On August 15, 2008, Edgardo interrogatories to Ely, asking whether

committed estafa against Petronilo in the statements of witnesses were obtained; if
amount of P3 Million. Petronilo brought his written copies were to be furnished; if oral,
complaint to the National Bureau of the exact provision were to be set forth in
Investigation, which found that Edgardo had detail. Ely refused to comply, arguing that
visited his lawyer twice, the first time on the documents and information asked are
August 14, 2008 and the second on August privileged communication. Is the contention
16, 2008; and that both visits concerned the tenable? Explain (4%)
swindling of Petronilo. During the trial of SUGGESTED ANSWER: Yes, the lawyer-
Edgardo, the RTC issued a subpoena ad client privilege covers any communication
testificandum to Edgardo’s lawyer for him to made by the client to the lawyer, or the
testify on the conversations during their first lawyer‟s advice given thereon in the
and second meetings. May the subpoena be course of, or with a view to professional
quashed on the ground of privileged employment. The documents and
communication? Explain fully. (4%) information sought were gathered and
SUGGESTED ANSWER: prepared pursuant to the engagement of
Yes, the mantle of privileged Ely as a lawyer for the company (Air
communication based on lawyer-client Philippines Corporation v. Pennswell, Inc.,
relationship protects the communication GR No. 172835, 13 December 2007). Sec.
between a lawyer and his client against 5, Rule 25 of the Rules of Court provides
any adverse party as in this case. The that interrogatories may relate to any
subpoena requiring the lawyer to testify matter that can be required into under
can be quashed on the ground of Sec. 2, Rule 23 o depositions and
privileged communication (See Regala v. discovery refers to privileged confidential
Sandiganbayan, GR No. 105938, 20 communications under Sec. 24, Rule 130.
September 1996). Sec. 24 (b) Rule 130
provides that an attorney cannot, without
the consent of his client be examined in (c) A person authorized to practice
any communication made to him by his medicine, surgery or obstetrics cannot in a
client to him, or his advice given thereon, civil case, without the consent of the
including his secretary, stenographer, patient, be examined as to any advice or
clerk concerning any fact the knowledge treatment given by him or any information
of which has been acquired in such which he may have acquired in attending
capacity. However, where the subject such patient in a professional capacity,
matter of the communication involves the which information was necessary to
commission of the crime, in which the enable him to act in capacity, and which
lawyer himself is a participant or would blacken the reputation of the
conspirator, then the same is not covered patient;
by the privilege. Moreover, if the
substance of the communication can be REQUISITES:
established by independent evidence, the 1. Witness is a person authorized to
lawyer maybe compelled to testify. practice medicine, surgery, or
obstetrics;
Privilege Communication; Lawyer-Client 2. The physician is authorized to
(2008) No.XX. A tugboat owned by Speedy practice medicine, surgery or
Port Service, Inc. (SPS) sank in Manila Bay obstetrics;
while helping tow another vessel, drowning 3. The information was acquired or
five (5) crews in the resulting shipwreck. At the advice or treatment was given
the maritime board inquiry, the four (4) by him in his professional capacity
survivors testified. SPS engaged Atty. Ely to for the purpose of treating or
defend it against potential claims and to sue curing the patient;
the company owning the other vessel for 4. The information, advice or
damages to tug. Ely obtained signed treatment, if revealed, would
statements from the survivors. He also blacken the reputation of the
interviewed other persons, in some instance patient; and
making memoranda. The heirs of the five (5) 5. The privilege is invoked in a civil
victims filed an action for damages against case whether the patient is a
SPS. Plaintiffs’ counsel sent written party thereto or not.

________________________________________________________________________________________________
waives any privilege he may have in that action
PURPOSE: It is intended to facilitate and or any other involving the same controversy,
make safe full and confidential disclosure regarding the testimony of every other person
who has examined or may thereafter examine
by the patient to the physician of all facts,
him in respect of the same mental or physical
circumstances and symptoms examination.
untrammeled by apprehension of their
subsequent and enforced disclosure and Dentist, pharmacist or nurses are
publication on the witness stand to the disqualified if acting as agents.
end that the physician may form a correct
opinion and enabled safely and TEST: Whether the 3rd person was an agent
efficaciously to treat his patient. of the doctor in a professional capacity.
WHEN IS PHYSICIAN IS ACTING IN HIS SCOPE OF PROHIBITION
PROFESSIONAL CAPACITY It applies not only to communication but also
It is when he attends to his patient for to opinions or prescription.
curative, preventive or palliative treatment.
Not all information obtained
Note: It is essential that at the time the confidentially by the physician from
communication were made the the patient and necessary for his
professional relationship of patient and treatment are within the privilege. The
physician existed. information held to be privileged is
that would blacken he reputation of
WHEN PRIVILEGE DOES NOT APPLY: the patient.
1. Where the communication is not
given in confidence; NOTE: It is only the tenor of the
2. The communication is NOT communication by patient to the doctor that is
relevant to the professional privileged. Hence, the fact of communication,
employment; the date and frequency of consultation with
3. The communication was made for the doctor are excluded (Lim vs. CA, 214
an unlawful purpose; SCRA 273 [1992]).
4. The information was intended to
be made public; DURATION OF PROHIBITION
5. There was waiver of privilege It continues after the death but it may be waived
either by provision of law or by the personal representative of the decedent.
contract;
Lim v. CA, 214 SCRA 273 (1992) The physician-
Waivers of the physician-patient patient privilege is not violated by permitting
privilege, Rule 28, Sec. 3 and 4 physician to give expert testimony regarding
hypothetical facts.
Sec. 3. Report of findings. — If
requested by the party examined, the party Krohn v. CA, 233 SCRA 146 (1994) Non-physician
causing the examination to be made shall testimony on a medical psychologist’s report is not
deliver to him a copy of a detailed written covered by the physician patient privilege. This is
report of the examining physician setting out
hearsay but there was no objection.
his findings and conclusions. After such
request and delivery, the party causing the
examination to be made shall be entitled upon
request to receive from the party examined a
like report of any examination, previously or (d) A minister or priest cannot, without the
thereafter made, of the same mental or consent of the person making the
physical condition. If the party examined confession, be examined as to any
refuses to deliver such report, the court on confession made to or any advice given
motion and notice may make an order by him in his professional character in the
requiring delivery on such terms as are just, course of discipline enjoined by the
and if a physician fails or refuses to make such church to which the minister or priest
a report the court may exclude his testimony if belongs;
offered at the trial. (3a)
Sec. 4. Waiver of privilege. — By
requesting and obtaining a report of the REQUISITES:
examination so ordered or by taking the
deposition of the examiner, the party examined 1. Witness is a minister or priest;

________________________________________________________________________________________________
2. The confession must have been without the consent of (another).” The (law) Rule
made to the priest in his does not say that one can not testify or be
professional capacity in the examined over the objection of another. The
course of discipline enjoined by wording of the (law) Rule is to the effect that an
the church to which he belongs; objection of the other party in the privileged
3. The communications made were communication is not necessary for the privilege
confidential and penitential in to hold. Consent of the other party in the privileged
character. communication is an act that needs to be proved
for the testimony to be admitted. This is not to say
NOTE: It is respect for religious order and that failure of a such a party to object will never
the confessor that adheres to the divine render such testimony admissible. This is to say
concept of atonement which spawned the that where the other party to the privileged
privilege. communication is not a litigant in the case, and
privileged communication is offered in evidence
Its rationale is to allow and encourage without the consent of such party, the litigant
individuals to fulfill their religious, against whom the testimony is offered may object
emotional or other needs by protecting to its admission on the ground of privileged
confidential disclosures to religious communication. Where the other party in the
practitioners (Peralta, Jr.) privileged communication is a litigant, then his
failure to object will be taken as a consent to the
(e) A public officer cannot be examined testimony or a waiver of a privilege.
during his term of office or afterwards, as
to communications made to him in official OTHER PRIVILEGED MATTERS
confidence, when the court finds that the
public interest would suffer by the 1. The guardian ad litem shall not testify in
disclosure. (21a) any proceeding concerning any
information, statement, or opinion
received from the child in the course of
serving as such, unless the court finds it
necessary to promote the best interest of
REQUISITES: the child (sec. 5(e), Rule on the
1. Witness is a public officer; Examination of Child Witness);
2. The communication was given to 2. Editors may not be compelled to disclose
the public officer in confidence; the source of published news;
3. The communication was given
during the term of office of the (a) Newsman’s Privilege
public officer; RA 53 as amended by RA 1477
4. Public interest would suffer by the Sec. 1. Without prejudice to his liability
disclosure of the communication. under the civil and criminal laws, the
publisher, editor, columnist or duly accredited
NOTES on sec. 24 in general: WHO MAY reporter of any newspaper, magazine or
ASSERT PRIVILEGE: periodical of general circulation cannot be
1. Holder of the privilege; compelled to reveal the source of any news-
2. Authorized person; and report or information appearing in said
3. Persons to whom privileged publication which was related in confidence to
communication is made. such publisher, editor or reporter unless the
court or a House or committee of Congress
We apply the privileged communication to both finds that such revelation is demanded by the
civil and criminal cases EXCEPT as to the doctor- security of the State.
patient privilege, which is applicable only in civil
cases 3. Voters may not be compelled to disclose
whom they voted for;
Unless waived, the disqualification under sec. 24 4. Trade secrets;
remains even after the various relationships 5. Bank deposits under RA 1405 (subject to
therein have ceased to exist. some exceptions);
Note that the privilege applies only to
Note that the wording of the (law) Rule is to the bank deposits. As to other property being
effect that “(someone) may not be examined held by a bank, bank personnel may be

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examined upon order of a court (Sec. 55.1 3. Admissions and Confessions

[d], RA 8791, General Banking Act of
2000). NOTE: Section 26 to 33 speak of
EXTRAJUDICIAL admissions and confessions.
6. Informer’s privilege--- the Prosecutor may
not be compelled to present an informer to Section 26. Admission of a party. — The act,
protect his identity and when his testimony declaration or omission of a party as to a relevant
would be merely cumulative and fact may be given in evidence against him. (22)
corroborative (Herrera, p. 363).
ADMISSION
It refers to any extrajudicial statement or conduct
2. Testimonial Privilege by a party to the present litigation that is
inconsistent with a position the party presently
Section 25. Parental and filial privilege. — No takes.
person may be compelled to testify against his
parents, other direct ascendants, children or other Admissibility; Admission of Guilt (2008)
direct descendants. (20a) No. XVI. The mutilated cadaver of a woman
was discovered near a creek. Due to
REASON for the rule: To preserve family witnesses attesting that he was the last
cohesion. person seen with the woman when she was
still alive, Carlito was arrested within five
Notes: There is no distinction between legitimate hours after the discovery of the cadaver and
or illegitimate relations. brought to the police station. The crime
laboratory determined that the woman had
Note that this is a testimonial privilege, not a been raped. While in police custody, Carlito
testimonial disqualification, found in §22-24 of broke down in the presence of an assisting
Rule 130 [careful not to be confused in the counsel orally confessed to the investigator
multiple use of the word “privilege”]. Here, the that he had raped and killed the woman,
witness is the holder of the privilege and has the detailing the acts he had performed up to his
power to invoke or waive the privilege. The dumping of the body near the creek. He was
relative against whom he is testifying can not genuinely remorseful. During the trial, the
invoke nor waive the privilege. However this must state presented the investigator to testify on
be construed in the light of Art. 215 of the Family the oral confession of Carlito. Is the oral
Code confession admissible in evidence of guilt?
Art. 215. No descendant shall be compelled, in a (4%) SUGGESTED ANSWER: The
criminal case, to testify against his parents and declaration of the accused expressly
grandparents, except when such testimony is acknowledging his guilt, in the presence of
indispensable in a crime against the descendant or assisting counsel, may be given in
by one parent against the other. evidence against him and any person,
otherwise competent to testify as a
Hence, a descendant may be compelled to testify
witness, who heard the confession is
in a criminal case where
competent to testify as to the substance
the descendant-witness himself is the victim, or to what he heard and understood it. What
is crucial here is that the accused was
informed of his right to an attorney and
the descendant-witness’s parent commits a crime that what he says may be used in evidence
against the descendant-witness’s other against him. As the custodial confession
parent. was given in the presence of an assisting
Note that an ascendant may not be compelled to counsel, Carlito is deemed fully aware of
testify even if it is a crime by the descendant the consequences of his statements
against the ascendant-witness. The ascendant- (People v. Silvano, GR No. 144886, 29
witness may testify voluntarily though. April 2002).
The filial privilege is personal to the witness. The

court may not invoke it for the witness (Review
Lecture). RULE 129, Sec. 4 RULE 130, Sec. 26
Judicial admission Extra-judicial admission
In the course of a

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proceeding in the same Out of court declaration present claims and

case defenses.
Does not require proof Requires proof It is not necessary that It is competent only
Conclusive upon the Rebuttable the declarant be a party when the declarant or
admitter to the action, it is someone indentified in
Admissible even if self- Admissible only if admissible to an action interest is a party to the
serving disserving where his declaration is action
Subject to cross- Not subject to cross- relevant
examination examination. May be admitted Used only against party
against himself or admitting.
RULE ON ADMISSIONS successor in interest
The act, declaration or omission of a party as to a and against third
relevant fact may be given in evidence against person
him. Flight of an accused after the commission of the
crime is evidence of guilt (Adame vs. CA, GR NO.
REASON: It is fair to presume that they 139830, Nov. 21, 2002).
correspond with the truth and it is his fault if they
do not. REASON: The wicked flee, even when no man
pursueth; but the righteous are as bold as a lion.
Therefore, if the act, declaration or omission is in
his favor, it is NOT an admission. However, the fact that the accused did not flee
from the scene of the crime is not sufficient ground
SELF-SERVING DECLARATION to exculpate a person from liability.
It refers to one which has been made
extrajudicially by the party to favor his interest. It is In an administrative complaint against a lawyer for
not admissible in evidence because they are his negligence in the performance of duties as
inherently untrustworthy and would open the door counsel, respondent’s failure to file a answer
to fraud and fabrication of testimony. despite notice from the IBP amounts to admission
of the allegations therein (Pilapil vs. Carillo, AC.
ADMISSION CONFESSION No. 5843, Jan. 14, 2003).
Statement of facts Statement of facts
which do not involve an which involves an ADOPTIVE ADMISSION
acknowledgement of acknowledgement of It is one where a party by words of conduct
guilt guilt voluntarily adopts or ratifies another’s statement.
May be made by 3rd Can be made by the
persons party himself Doctrine of Adoptive Admission (2009) No.I.D. Under
Express or implied Always express the doctrine of adoptive admission, a third party’s
statement becomes the admission of the party
embracing or espousing it. SUGGESTED ANSWER:
DELARATION ADMISSIONS TRUE. The effect or consequence of the admission
AGAINST INTEREST will bind also the party who adopted or espoused the
Exception to the Covered by the hearsay same, as applied in Estrada vs. Desierto, 356 SCRA
hearsay rule and rule 108 [2001]\. An adoptive admission is a party‟s
admissible reaction to a statement or action by another person
Secondary evidence Primary evidence and when it is reasonable to treat the party‟s reaction as
and admissible only if admissible even if the an admission of something stated or implied by the
the declarant is already declarant is available other person.
dead or unable to as a witness
testify
Section 27. Offer of compromise not
Must have been made Ma be made at any
admissible. — In civil cases, an offer of
before the controversy time, before or during
compromise is not an admission of any liability,
trial
and is not admissible in evidence against the
The fact asserted in the Need not be considered offeror.
declaration must have by the declarant as
been at the time it was opposed to his interest
made so far contrary to at the time when made, In criminal cases, except those involving quasi-
the declarant’s own it is enough if it is offenses (criminal negligence) or those allowed by
interest. inconsistent with his law to be compromised, an offer of compromised

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by the accused may be received in evidence as an GR: In CRIMINAL CASES, an offer of

implied admission of guilt. compromise by the accused may be received in
evidence as an implied admission of guilt.
A plea of guilty later withdrawn, or an unaccepted
offer of a plea of guilty to lesser offense, is not EXCEPTIONS:
admissible in evidence against the accused who 1. Those involving quasi-offenses (criminal
made the plea or offer. negligence);
2. Those cases falling under the
Katarungang Pambarangay Law;
An offer to pay or the payment of medical, hospital
3. Plea of guilty later withdrawn;
or other expenses occasioned by an injury is not
4. An unaccepted offer of plea bargaining;
admissible in evidence as proof of civil or criminal
5. An offer to pay or payment of medical,
liability for the injury. (24a)
hospital or other expenses occasioned by
n injury;
NOTES: 6. Those expressly allowed by law to be
compromised (Tax cases not involving
GR: In CIVIL CASES, an offer of compromise is fraud and not yet filed in court).
not an admission of any liability, and is not
admissible in evidence against the offeror. An offer of compromise that may be considered an
implied admission need not be made by the
EXCEPTION: It is when such offer is clearly not accused himself. It may be made by his counsel,
only to buy peace but amounts to an admission of or relatives, provided it is made with the consent
liability, the offered compromise being directed of the accused or with his knowledge and he does
only to the amount paid (El Varadero de Manila not stop it.
vs. Insular Lumber, 46 Phil. 176).
US v. Torres, 34 Phil. 994 (1916) – offer of
REASON: It is the policy of the law to favor compromise in criminal cases inadmissible when
settlement of disputes, to foster compromises and accused shows that it was made not under a
to promote peace. consciousness of guilt, but merely to avoid
inconvenience of imprisonment or for some other
Bar Exam Question 2012 reason; in this case, the law allowed compromise,
70. Which of the following statements is not thus the offer to compromise is not admitted
accurate?
a. A plea of guilty later withdrawn is
admissible in evidence against the
accused who made the plea. People v. Godoy, 250 SCRA 676 (1995) – offer to
b. An unaccepted offer of a plea of guilty to a compromise made by a person other than the
lesser offense is inadmissible in evidence accused is inadmissible if the accused repudiated
against the accused. the actions of such person by raising the trial
c. An offer to pay or payment of medical court’s admission of evidence of such offer as an
expenses arising from injury is not evidence error.
or proof of civil/criminal liability for the People v. de Guzman, 265 SCRA 228 (1996) –
Injury. the offer to compromise made by a person other
d. In civil cases, an offer of compromise by than the accused was admitted in evidence
the accused is admissible as an implied because the accused failed to repudiate such acts
admission of guilt. by raising the trial court’s admission of evidence
SUGGESTED ANSWERS: (a), A plea of on such offer as an error.
guilty later withdrawn is not admissible in
People v. Yparriguirre, 268 SCRA 35 (1997) –
evidence against the accused who made
whether a complaint has been filed or not is
the plea (Rule 130, Sec. 27, Rules of irrelevant as to the admissibility of an offer to
Court). (d), In civil cases, an offer of compromise.
compromise is not an admission of any
liability, and is not admissible in evidence
against the offeror. (Rule 130, Sec.27, Admissibility; Offer to Settle; Implied
Rules of Court). Admission of Guilt (2008) No.VIII. Bembol
was charged with rape. Bembol’s father,
Ramil, approached Artemon, the victim’s
father, during the preliminary investigation

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and offered P1 Million to Artemon to settle contemplation of mutual secure relief against a
the case. Artemon refused the offer. (A) concessions liability recognized as
During trial, the prosecution presented such.
Artemon to testify on Ramil’s offer and
thereby establish and implied admission of Although a judicial or extrajudicial amicable
guilt. Is Ramil’s offer to settle admissible in settlement does not bear the court ‘s approval, the
evidence? (3%) SUGGESTED ANSWER: Yes, agreement can become a source of rights and
the offer to settle by the father of the obligation between the parties (Iloilo Traders
accused, is admissible in evidence as an Finance Inc. vs. Heirs of Soriano, GR NO.
implied admission of guilt. (Peo v. 149683, June 16, 2003).
Salvador, GR No. 136870-72, 28 January
2003) Admissibility; Offer to Pay Expenses (1997)
ALTERNATIVE ANSWER: No, Under Sec. A, while driving his car, ran over B. A visited B at the
27, Rule 130 of the Rules of Court, it is hospital and offered to pay for his hospitalization
the offer of compromise by the accused expenses. After the filing of the criminal case against A
that may be received in evidence as an for serious physical injuries through reckless
implied admission of guilt. The testimony imprudence. A's insurance carrier offered to pay for
of Artemon would cover the offer of Ramil the injuries and damages suffered by B. The offer was
and not an offer of the accused himself. rejected because B considered the amount offered as
(Peo v. Viernes, GR Nos. 136733-35, 13 inadequate. a) Is the offer by A to pay the
December 2001) hospitalization expenses of B admissible in evidence?
b) Is the offer by A's insurance carrier to pay for the
(B) During the pretrial ,Bembol personally injuries and damages of B admissible in evidence?
offered to settle the case for P1 Million to the SUGGESTED ANSWER:
private prosecutor, who immediately put the (a) The offer by A to pay the hospitalization expenses
offer on record in the presence of the trial of B is not admissible in evidence to prove his guilt in
judge. Is Bembol’soffer a judicial admission of both the civil and criminal cases. (Rule 130, Sec. 27, fourth
par.).
his guilt. (3%) SUGGESTED ANSWER: Yes,
Bembol‟s offer is an admission of guilt
(b) No. It is irrelevant. The obligation of the insurance
(Sec. 33 Rule 130). If it was repeated by company is based on the contract of insurance and is
the private prosecutor in the presence of not admissible in evidence against the accused because
judge at the pretrial the extrajudicial it was not offered by the accused but by the insurance
confession becomes transposed into a company which is not his agent.
judicial confession. There is no need of
assistance of counsel. (Peo v. Buntag, GR Section 28. Admission by third party. — The
No. 123070, 14 April 2004). rights of a party cannot be prejudiced by an act,
declaration, or omission of another, except as
hereinafter provided. (25a)
GOOD SAMARITAN RULE

An offer to pay or payment of medical, hospital
(43) Ben testified that Jaime, charged with
and other expenses occasioned by the injury is
robbery, has committed bag-snatching three
not admissible in evidence as proof of civil and
times on the same street in the last six
criminal liability for the injury.
months. Can the court admit this testimony
as evidence against Jaime? (A) No, since
REASON: It is to encourage the giving of
there is no showing that Ben witnessed the
charitable and meritorious aid to the victims of
accidental harm plus a concern that such payment past three robberies. (B) Yes, as evidence of
may have been prompted solely by humanitarian his past propensity for committing robbery.
motives. (C) Yes, as evidence of a pattern of criminal
behavior proving his guilt of the present
OFFER OF ORDINARY offense. (D) No, since evidence of guilt of a
COMPROMISE ADMISSION past crime is not evidence of guilt of a
The proposal is present crime.
tentative and any The intention is
statement made in apparently to admit The Principle of RES INTER ALIOS ACTA
connection with it is liability ALTERI NOCERE NO DEBET (Things done
hypothetical between strangers ought not to injure those who
To buy peace and in To seek to buy or are not parties to it).

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1st PART is section 28. REQUISITES:

Exceptions to 1st part are: (vicarious admissions) 1. Conspiracy is proved by evidence other
1. Sec. 29; than the admission itself;
2. Sec. 30; 2. That the admission relates to the
3. Sec. 31; conspiracy itself;
4. Sec. 32. 3. That it has been made while the declarant
was engaged in carrying out the
conspiracy; and
2nd PART is section 34. 4. The object of the conspiracy has not been
consummated.
Section 29. Admission by co-partner or agent.
— The act or declaration of a partner or agent of Take note of the Doctrine of Interlocking
the party within the scope of his authority and Confessions (Testimonies).
during the existence of the partnership or agency,
may be given in evidence against such party after People v. Sumayo, 70 SCRA 488 (1976) Where
the partnership or agency is shown by evidence the extra-judicial confessions of the accused are
other than such act or declaration. The same rule consistent in many material details and manifest
applies to the act or declaration of a joint owner, amazing consistency and accuracy in the
joint debtor, or other person jointly interested with narration of events and of facts which could not
the party. (26a) have been known to the police investigators if the
same were not voluntarily given by the accused,
REQUISITES: (clue words) such statements are admissible against the
1. Act or declaration is within the scope of accused on the doctrine of interlocking
confessions.
authority;
2. During existence of partnership or agency;
3. Partnership or agency is shown by other de Leon: The value of the doctrine of interlocking
evidence. confessions is when a confession is inadmissible
against one accused (e.g. obtained without
counsel), but it is nevertheless admissible against
Ormachea v. Trillana, 13 Phil 194 (1909)
the other co-accused. The confession of one may
Discharge of a debt given by a managing partner,
be used against another to produce evidence of
2 years after the partnership had been dissolved
guilt beyond reasonable doubt.
does not qualify as a partner’s admission and can
not prejudice or bind the other partners.
People v. Alegre, 94 SCRA 109 (1979) – absent
independent evidence of conspiracy, extra-judicial
Section 30. Admission by conspirator. — The confession of the accused is not admissible
act or declaration of a conspirator relating to the against others
conspiracy and during its existence, may be given
in evidence against the co-conspirator after the People v. Raquel, 265 SCRA 248 (1996) – extra-
conspiracy is shown by evidence other than such judicial confession of accused can not be used to
act of declaration. (27) implicate co-accused unless repeated in open
court.
(53) Henry testified that a month after the Section 31. Admission by privies. — Where one
robbery Asiong, one of the accused, told him derives title to property from another, the act,
that Carlos was one of those who committed declaration, or omission of the latter, while holding
the crime with him. Is Henry’s testimony the title, in relation to the property, is evidence
regarding what Asiong told him admissible in against the former. (28)
evidence against Carlos? (A) No, since it is
hearsay. (B) No, since Asiong did not make PRIVIES
the statement during the conspiracy. (C) It refers to those who have mutual or successive
Yes, since it constitutes admission against a relationship to the same rights of property or
co-conspirator. (D) Yes, since it part of the subject matter such as personal representatives,
res gestae. heirs, devisees, legatees assigns, voluntary
grantees, or judgment creditors or purchasers
NOTE: It refers to an extrajudicial declaration of a from them with notice to facts.
conspirator, and not his testimony given on the
stand which is subject to cross-examination. The declarant was so situated that his interest
were such that he would not have made the

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admission to the prejudice of his title or 1. Allegations of unliquidated damages;

possession unless they were true. The declarant 2. Allegations which are not material to the
need not be presented as witness, his statement cause of action;
may be proved by those who have knowledge of 3. Conclusion of fact/law;
them. 4. In case of usury;
5. If defendant has not filed an answer is
REQUISITES: declared in default.
1. There must be privity between the party
and the declarant; Section 33. Confession. — The declaration of an
2. The declarant as predecessor (previous accused acknowledging his guilt of the offense
holder) in interest made the declaration charged, or of any offense necessarily included
while holding title to the property; and therein, may be given in evidence against him.
3. The admission relates to the property. (29a)
Section 32. Admission by silence. — An act or CONFESSION

declaration made in the presence and within the It is a categorical acknowledgement of guilt made
hearing or observation of a party who does or by an accused in a criminal case, without any
says nothing when the act or declaration is such exculpatory statement or explanation.
as naturally to call for action or comment if not
true, and when proper and possible for him to do If the accused admits having committed the act in
so, may be given in evidence against him. (23a) question but alleges a justification therefor, the
same is merely an admission.
REQUISITES:
1. He must have heard or observed the act There can also be confession of judgment in a civil
or declaration of the other person; case where the party expressly admits his liability.
2. He must have the opportunity to deny it;
3. He must have understood the statement; Exceptions: no confession of judgment in)
4. He must have an interest to the object, 1. In legal separation (art. 60, FC);
such that he would naturally have done 2. Declaration of nullity of marriage (art. 48,
so, if the statement was not true; FC);
5. The facts were within his knowledge; 3. Annulment of marriage (art. 48, FC).
6. The fact admitted or the inference to be JUDICIAL CONFESSION
drawn from his silence is material to the It is one made by the accused before a court in
issue. which the case is pending and in the course of
legal proceedings therein and, by itself, can
Qui tacet consentire videtur: He who is silent sustain a conviction.
appears to consent.
Exception: in capital offenses.
Note: this rule does not prevail over the right of REASON: The court must conduct hearing in
the accused to remain silent and to be presumed order to determine that the accused has full
innocent until the contrary is proved beyond knowledge of the consequences of his plea and
reasonable doubt. for the prosecution to prove the precise degree of
culpability of the accused (Rule 116, sec. 3).
People v. Paragsa, 84 SCRA 105 (1978) Failure
by a supposed rape victim to rebut sweetheart EXTRA-JUDICIAL CONFESSIONS
defense based on testimonial evidence may be It is one made in any other place or occasion and
taken against her. cannot sustain a conviction unless its
voluntariness is proven and corroborated by
corpus delicti.
DOCTRINE OF ADOPTIVE ADMISSION
An adoptive admission is a party’s reaction to a REQUISITES FOR EXTRA-JUDICIAL
statement or action by another person when it is CONFESSIONS TO BE ADMISSIBLE:
reasonable to treat the party’s reaction as an 1. Made by the defendant;
admission of something stated or implied by the 2. Confession must involve an express and
other person (Estrada vs. Desierto, 356 SCRA categorical acknowledgment of guilt;
108). In this case, Estrada’s admission was based 3. The confession must have been given
on the diary of Angara. voluntarily;
NO IMPLIED ADMISSION IN:

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4. The confession must be intelligently 5. Where the confession is used as

made, the accused realizing the circumstantial evidence to show the
importance or legal significance of his act; probability of participation by the co-
5. There must have been no violation of the conspirator;
constitutional rights of the accused; 6. When the confessant testified for his co-
6. It must be in writing (under RA 7438). defendant;
7. Where the conspirators extrajudicial
admission is corroborated by other
Rights of the Accused; Miranda Rights evidence on the record.
(2010) No.XI. X was arrested for the alleged
murder of a 6-year old lad. He was read his
Mirandarights immediately upon being 4. Previous Conduct as Evidence
apprehended. In the course of his detention,
X was subjected to three hours of non-stop Section 34. Similar acts as evidence. —
interrogation. He remained quiet until, on the Evidence that one did or did not do a certain thing
3rd hour, he answered "yes" to the question at one time is not admissible to prove that he did
of whether "he prayed for forgiveness for or did not do the same or similar thing at another
shooting down the boy." The trial court, time;
interpreting X’s answer as an admission of
guilt, convicted him. On appeal, X’s counsel but it may be received to prove:
faulted the trial court in its interpretation of
his client’s answer, arguing that X invoked
his Miranda rights when he remained quiet 1. a specific intent or knowledge;
2. identity,
for the first two hours of questioning. Rule on
3. plan,
the assignment of error. (3%) SUGGESTED
4. system,
ANSWER:
5. scheme,
The assignment of error invoked by X‟s counsel is
6. habit,
impressed with merit since there has been no express 7. custom or usage,
waiver of X‟s Miranda Rights. In order to have a valid 8. and the like. (48a)
waiver of the Miranda Rights, the same must be in
writing and made in the presence of his counsel. The NOTE: This is the 2nd part of the res inter alios
uncounselled extrajudicial confession of X being acta rule.
without a valid waiver of his Miranda Rights, is
inadmissible, as well as any information derived
This is also referred to as Propensity Rule
therefrom.
US v. Evangelista, 24 Phil 453 (1913) In a trial for
GR: An extrajudicial confession is admissible only arson, the prosecution may prove that the
against the confessor. It is incompetent evidence accused had attempted to set fire to the house on
against co-accused for being hearsay and the day previous to the burning alleged in the
because of the res inter alios acta rule. information, for the purpose of showing the intent
of the accused in subsequently setting fire to the
EXCEPTIONS: (when admissible against co- house. Where a person is charged with the
defendants) commission of a specific crime, testimony may be
1. If the co-defendants impliedly acquiesced received of the other similar acts committed about
in or adopted said confession; the same time, only for the purpose of
2. Interlocking confessions—if the accused establishing the criminal intent of the accused.
persons voluntarily and independently
executed identical confession without Offer of Evidence; res inter alios acta (2003)
collusion, and corroborated by other X and Y were charged with murder. Upon application
evidence; of the prosecution, Y was discharged from the
3. Where the accused admitted the facts Information to be utilized as a state witness. The
stated by the confessant after being prosecutor presented Y as witness but forgot to state
appraised of such confession; the purpose of his testimony much less offer it in
4. If they are charged as co-conspirator of evidence. Y testified that he and X conspired to kill the
the crime which was confessed by one of victim but it was X who actually shot the victim. The
the accused and said confession is used testimony of Y was the only material evidence
only as corroborating evidence; establishing the guilt of X. Y was thoroughly

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crossexamined by the defense counsel. After the statement is to prove the truth of the facts
prosecution rested its case, the defense filed a motion asserted therein.
for demurrer to evidence based on the following
grounds. 2. NON-HEARSAY--- Admissible. This occurs
(a) The testimony of Y should be excluded because its when the purpose for introducing the statement is
purpose was not initially stated and it was not formally not to prove the truth of the facts asserted therein
offered in evidence as required by Section 34, Rule 132 but only the making of the statements and are
of the Revised Rules of Evidence; and admissible in evidence when the making of the
(b) Y’s testimony is not admissible against X pursuant statement is relevant. These are so-called
to the rule on “res inter alios acta”. Rule on the motion INDEPENDENT RELEVANT STATEMENTS.
for demurrer to evidence on the above grounds. (6%)
SUGGESTED ANSWER: 3. EXCEPTIONS TO THE HEARSAY RULE---
The demurrer to the evidence should be denied Those which are hearsay but are considered as
because: a) The testimony of Y should not be excluded exceptions to the hearsay rule and are therefore
because the defense counsel did not object to his admissible. These are sec. 37 to 47 of Rule 130.
testimony despite the fact that the prosecutor forgot to
state its purpose or offer it in evidence. Moreover, the HEARSAY EVIDENCE
defense counsel thoroughly crossexamined Y and thus Two concepts of hearsay evidence: Any evidence,
waived the objection. whether oral or documentary, is hearsay if its
b) The res inter alios acta rule does not apply because Y probative value is not based on the personal
testified in open court and was subjected to cross knowledge of the witness but on the knowledge of
examination. some other person not on the witness stand
(Regalado, p. 736).
Hearsay evidence also includes all assertions

which have not been subject of cross-examination
Section 35. Unaccepted offer. — An offer in by the adverse party at the trial in which they are
writing to pay a particular sum of money or to being offered against him (Herrera, vol. V., p.564).
deliver a written instrument or specific personal
property is, if rejected without valid cause, Note: It is the loss of the opportunity to cross-
equivalent to the actual production and tender of examine and not the loss of cross-examination
the money, instrument, or property. (49a) itself which makes an assertion hearsay evidence.
5. Testimonial Knowledge Hearsay Rule (2007) No.III. (a) What is the

hearsay rule? (5%) SUGGESTED ANSWER:
Section 36. Testimony generally confined to The hearsay rule is a rule of evidence to
personal knowledge; hearsay excluded. — A the effect that a witness can testify only
witness can testify only to those facts which he to those facts which he knows of his own
knows of his personal knowledge; that is, which knowledge or derived from his own
are derived from his own perception, except as perceptions, except as otherwise provided
otherwise provided in these rules. (30a) in the rules of court (Rule 130, Sec. 36
Rules of Court). (b) In relation to the hearsay
REASON FOR EXCLUDING HEARSAY rule, what do the following rules of evidence
It is not subject to the test of truth because there is have in common? (5%) (1) The rule on
no opportunity for cross-examination. In other statements that are part of the res gestae. (2)
words, the witness cannot swear as to the truth The rule on dying declarations. (3) The rule
beyond what was told him, heard or read. Also this on admissions against interest. SUGGESTED
will be a violation of the constitutional right to ANSWER: The rules on the evidence
confrontation. specified in the question asked, have in
common the following: (1) The evidence
although hearsay, are allowed by the Rules
HEARSAY RULE as exceptions to the hearsay rule;
(2) The facts involved are admissible in
CLASSIFICATION OF OUT OF COURT evidence for reasons of necessity and
STATEMENTS trustworthiness; and
(3) The witness is testifying on facts which
1. HEARSAY--- Those which are considered as are not of his own knowledge or derived
hearsay and therefore inadmissible. This occurs from his own perception
when the purpose for introducing the out of court

________________________________________________________________________________________________
Testimony of a witness as to statements made by

Bar Exam Question 2011 non-human declarant (machines, etc) does not
(89) To prove the identity of the assailant in a violate the rule against hearsay. The law permits
crime of homicide, a police officer testified so-called non-human evidence on the ground that
that, Andy, who did not testify in court, machines and animals, unlike humans, lack a
pointed a finger at the accused in a police conscious motivation to tell falsehood and
lineup. Is the police officer’s testimony because the workings of machines can be
regarding Andy's identification of the accused explained by human witnesses who are subject to
admissible evidence? (A) Yes, since it is based cross-examination by opposing counsel (Herrera,
on his personal knowledge of Andy’s p. 581).
identification of the accused. (B) Yes, since it
constitutes an independently relevant 6. Exceptions To The Hearsay Rule
statement. (C) No, since the police had the
accused identified without warning him of his 1. Dying Declaration;
rights. (D) No, since the testimony is 2. Declaration Against Interest;
hearsay. 3. Act or Declaration About Pedigree;
4. Family Refutation or Tradition Regarding
Bar Exam Question 2011 Pedigree;
(96) To prove that Susan stabbed her 5. Common Reputation;
husband Elmer, Rico testified that he heard 6. Res Gestae;
Leon running down the street, shouting 7. Entries in the Ordinary Course of
excitedly, "Sinasaksak daw ni Susan ang Business;
asawa niya! (I heard that Susan is stabbing 8. Entries in Official Records;
her husband!)" Is Leon's statement as 9. Commercial Lists;
narrated by Rico admissible? (A) No, since 10. Learned Treatises;
the startling event had passed. (B) Yes, as 11. Testimony or Deposition at Former
part of the res gestae. (C) No, since the Proceeding.
excited statement is itself hearsay. (D) Yes,
as an independently relevant statement.
Sec. 28 of the Rule on Examination of Child

Hearsay Evidence (2002) Witness provides for another exception to the
Romeo is sued for damages for injuries suffered by the hearsay rule. Hearsay testimony of a child witness
plaintiff in a vehicular accident. Julieta, a witness in describing any act or attempted act of sexual
court, testifies that Romeo told her (Julieta) that he abuse may now be admitted in any criminal
(Romeo) heard Antonio, a witness to the accident, give proceeding, subject to certain pre-requisites and
an excited account of the accident immediately after its the right to cross-examination by the adverse
occurrence. Is Julieta’s testimony admissible against party.
Romeo over proper and timely objection? Why? (5%)
SUGGESTED ANSWER: REASON: They are admissible by reason of
No, Julieta’s testimony is not admissible against necessity and trustworthiness.
Romeo, because while the excited account of Antonio,
a witness to the accident, was told to Romeo, it was Hearsay evidence not objected to may be
only Romeo who told Julieta about it, which makes it admissible, but, whether objected or not, has no
hearsay. probative value and as opposed to direct and
primary evidence, the latter always prevails.
Hearsay Evidence vs. Opinion Evidence (2004)
Hearsay evidence and opinion evidence. Bar Exam Question 2011
SUGGESTED ANSWER: (90) In which of the following cases is the
Hearsay evidence consists of testimony that is not testimony in a case involving a deceased
based on personal knowledge of the person testifying, barred by the Survivorship Disqualification
(see Sec. 36, Rule 130), while opinion evidence is expert Rule or Dead Man Statute? (A) Testimony
evidence based on the personal knowledge skill, against the heirs of the deceased
experience or training of the person testifying (Sec. 49, defendant who are substituted for the
Id.) and evidence of an ordinary witness on limited latter.
matters (Sec. 50, Id.). (B) The testimony of a mere witness who is
neither a party to the case nor is in privity
NON-HUMAN EVIDENCE with the latter. (C) The testimony of an

________________________________________________________________________________________________
oppositor in a land registration case filed by Candida crying and pleading: "Huwag! Maawa ka sa
the decedent’s heirs. (D) The testimony is akin!" After raping Candida, Dencio fled from the
offered to prove a claim less than what is house with the loot. Candida then untied Marcela and
established under a written document signed rushed to the police station about a kilometer away
by the decedent. and told Police Officer Roberto Maawa that Dencio
had barged into the house of Marcela, tied the latter to
a chair and robbed her of her jewelry and money.
Hearsay; Exception; Dead Man Statute (2001) Candida also related to the police officer that despite
Maximo filed an action against Pedro, the her pleas, Dencio had raped her. The policeman
administrator of the estate of deceased Juan, for the noticed that Candida was hysterical and on the verge
recovery of a car which is part of the latter’s estate. of collapse. Dencio was charged with robbery with
During the trial, Maximo presented witness Mariano rape. During the trial, Candida can no longer be
who testified that he was present when Maximo and located. (8%)
Juan agreed that the latter would pay a rental of a) If the prosecution presents Police Officer Roberto
P20,000.00 for the use of Maximo’s car for one month Maawa to testify on what Candida had told him,
after which Juan should immediately return the car to would such testimony of the policeman be hearsay?
Maximo. Pedro objected to the admission of Mariano’s Explain.
testimony. If you were the judge, would you sustain SUGGESTED ANSWER:
Pedro’s objection? Why? (5%) No. The testimony of the policeman is not hearsay. It
SUGGESTED ANSWER: is part of the res gestae. It is also an independently
No, the testimony is admissible in evidence because relevant statement. The police officer testified of his
witness Mariano who testified as to what Maximo and own personal knowledge, not to the truth of Candida's
Juan, the deceased person agreed upon, is not statement, i.e., that she told him, despite her pleas,
disqualified to testify on the agreement. Those Dencio had raped her. (People v. Gaddi,G.R. No. 74065,
disqualified are parties or assignors of parties to a case, February 27,1989)
or persons in whose behalf a case is prosecuted, b) If the police officer will testify that he noticed
against the administrator or Juan’s estate, upon a claim Candida to be hysterical and on the verge of
or demand against his estate as to any matter of fact collapse, would such testimony be considered as
occurring before Juan’s death. (Sec. 23 of Rule 130) opinion, hence, inadmissible? Explain.
SUGGESTED ANSWER:
No, it cannot be considered as opinion, because he
was testifying on what he actually observed. The last
Hearsay; Exception; Dying Declaration (1998)
paragraph of Sec. 50, Rule 130, Revised Rules of
Requisites of Dying Declaration. [2%)
SUGGESTED ANSWER:
Evidence, expressly provides that a witness may testify
The requisites for the admissibility of a dying on his impressions of the emotion, behavior, condition
declaration are: (a) the declaration is made by the or appearance of a person.
deceased under the consciousness of his impending
death; (b) the deceased was at the time competent as
Hearsay; Exceptions (1999)
a witness; (c) the declaration concerns the cause and a) Define hearsay evidence? (2%) b) What are the
surrounding circumstances of the declarant's death; exceptions to the hearsay rule? (2%)
and (d) the declaration is offered in a (criminal) case SUGGESTED ANSWER:
wherein the declarant's death is the subject of . Hearsay evidence may be defined as evidence that
inquiry. consists of testimony not coming from personal
(People vs. Santos, 270 SCRA 650.) knowledge (Sec. 36, Rule 130, Rules of Court). Hearsay
ALTERNATIVE ANSWER: testimony is the testimony of a witness as to what he
The declaration of a dying person, made under the has heard other persons say about the facts in issue.
consciousness of an impending death, may be received . The exceptions to the hearsay rule are:
in any case wherein his death is the subject of Inquiry, dying declaration, declaration against interest, act or
as evidence of the cause and surrounding declaration about pedigree, family reputation or
circumstances of such death. (Sec. 37 of Rule 13O.) tradition regarding pedigree, common reputation, part
of the res gestae, entries in the course of business,
Hearsay; Exception; Res Gestae; Opinion of Ordinary entries in official records, commercial lists and the like,
Witness (2005) learned treatises, and testimony or deposition at a
Dencio barged into the house of Marcela, tied her to a former proceeding. (37 to 47, Rule 13O, Rules of Court)
chair and robbed her of assorted pieces of jewelry and
money. Dencio then brought Candida, Marcela's maid, Hearsay; Exceptions; Dying Declaration (1999)
to a bedroom where he raped her. Marcela could hear The accused was charged with robbery and homicide.

________________________________________________________________________________________________
The victim suffered several stab wounds. It appears

that eleven (11) hours after the crime, while the victim Ans. Motion denied. W’s testimony is an
was being brought to the hospital in a jeep, with his independent relevant statement which is one of
brother and a policeman as companions, the victim the recognized exceptions to the hearsay rule.
was asked certain questions which he answered, While it is true that the testimony of a witness
pointing to the accused as his assailant. His answers regarding a statement made by another person, if
were put down in writing, but since he was a in a intended to establish the truth of the fact asserted
critical condition, his brother and the policeman signed in the statement, is clearly hearsay evidence, it is
the statement. Is the statement admissible as a dying otherwise if the purpose of placing the statement
declaration? Explain.(2%) in the record is merely to establish the fact that the
SUGGESTED ANSWER: statement was made or the tenor of such
Yes. The statement is admissible as a dying declaration statement. Regardless of the truth or falsity of a
if the victim subsequently died and his answers were statement, when the fact that it has been made is
made under the consciousness of impending death (Sec. relevant, the hearsay rule does not apply and the
37 of Rule 130). The fact that he did not sign the statement may be shown. As a matter of fact,
statement point to the accused as his assailant, because evidence as to the making of the statement is
he was in critical condition, does not affect its not secondary but primary, for the statement
admissibility as a dying declaration. A dying declaration itself may constitute a fact in issue, or be
need not be in writing (People v. Viovicente, 286 SCRA 1) circumstantially relevant as to the existence of
such a fact. For this reason, the statement
attributed to B regarding the source of the funds
INDEPENDENT RELEVANT STATEMENTS used to purchase the subject property related to
An out of court declaration while having the court by W is admissible if only to establish the
certain characteristic of hearsay evidence fact that such statement was made and the tenor
is not actually cases of hearsay but is thereof. (Republic v. Heirs of Felipe Alejaga, Sr.,
original evidence. 441 Phil. 656, 672 (2002)
These are statements which are relevant Bar Exam Question 2011
independently, whether they are true or (38) To prove payment of a debt, Bong
not. It is also called as the apparent testified that he heard Ambo say, as the
hearsay. latter was handing over money to Tessie, that
it was in payment of debt. Is Bong’s
Independent relevant statement can later testimony admissible in evidence? (A) Yes,
on be connected by the testimony of other since what Ambo said and did is an
eye-witness. This is used to save the a independently relevant statement. (B) No,
question which is objected on the ground since what Ambo said and did was not in
of being hearsay (Ucat). response to a startling occurrence. (C) No,
since Bong’s testimony of what Ambo said
Prob. A and B are brothers. A is working abroad and did is hearsay. (D) Yes, since Ambo‟s
and he regularly sent money to B. Upon A’s statement and action, subject of Bong‟s
instruction, B bought a parcel of land and testimony, constitutes a verbal act.
constructed a residential house thereon using A’s
money. The land is declared for taxation
purposes in the name of B. Before A went home, Hearsay; Inapplicable (2009) No.XIII. [b]
B, who was then old, donated the land and the Blinded by extreme jealousy, Alberto shot his
house to C, his close friend who was then living wife, Betty, in the presence of his sister,
with B in the residential house. Thereafter, B died. Carla. Carla brought Betty to the hospital.
Upon his return and upon knowing of the donation, Outside the operating room, Carla told
A filed an action against C for the recovery of the Domingo, a male nurse, that it was Alberto
land and the house constructed thereon on the who shot Betty. Betty died while undergoing
ground that the donation was void because B was emergency surgery. At the trial of the
not the owner of the land and the house parricide charges filed against Alberto, the
constructed thereon. During the trial, W, also a prosecutor sought to present Domingo as
friend of B, testified for A and declared that B told witness, to testify on what Carla told him.
him (W) that the source of the money which he The defense counsel objected on the ground
used in buying the land and in the construction of that Domingo’s testimony is inadmissible for
the house was A. Through counsel, C moved that being hearsay. Rule on the objection with
W’s testimony be stricken of the record on the reasons. (3%)
ground that the same is hearsay. Resolve.

________________________________________________________________________________________________
SUGGESTED ANSWER: Testimony; Independent Relevant Statement (1999)

Objection overruled. The disclosure A overheard B call X a thief. In an action for
received by Domingo and Carla may be defamation filed by X against B, is the testimony of A
regarded as independently relevant offered to prove the fact of utterance i.e., that B called
statement which is not covered by the X a thief, admissible in evidence? Explain. (2%)
hearsay rule; hence admissible. The SUGGESTED ANSWER:
statement may be received not as Yes. The testimony of A who overheard B call X a
evidence of the truth of what was stated thief is admissible in evidence as an independently
but only as to the tenor thereof and the relevant statement. It is offered in evidence only to
occurrence when it was said, prove the tenor thereof, not to prove the truth of the
independently of whether it was true or facts asserted therein. Independently relevant
false. (People v. Cloud, 333 Phil. 30 [1996]; statements include statements which are on the very
People v. Malibiran, et al., G.R. No. facts in issue or those which are circumstantial
178301, April 24, 2009). evidence thereof. The hearsay rule does not apply.
(See People vs. Gaddi, 170 SCRA 649)
ALTERNATIVE ANSWER: Objection
sustained. The disclosure made by Carla Hearsay; Inapplicable (2003)
has no other probative value except to X was charged with robbery. On the strength of a
identify who shot Betty. Its tenor is warrant of arrest issued by the court, X was arrested by
irrelevant to the incident, and the same police operatives. They seized from his person a
was made not to a police investigator of handgun. A charge for illegal possession of firearm
the occurrence but to a nurse whose was also filed against him. In a press conference called
concern is only to attend to the patient. by the police, X admitted that he had robbed the
Hence, the disclosure does not qualify as victim of jewelry valued at P500,000.00.
independently relevant statement and The robbery and illegal possession of firearm cases
therefore, hearsay. The nurse is were tried jointly. The prosecution presented in
competent to testify only on the condition evidence a newspaper clipping of the report to the
of Betty when rushed to the Hospital but reporter who was present during the press conference
not as to who caused the injury. The stating that X admitted the robbery. It likewise
prosecution should call on Carla as the presented a certification of the PNP Firearms and
best witness to the incident. Explosive Office attesting that the accused had no
license to carry any firearm. The certifying officer,
Bar Exam Question 2012 however, was not presented as a witness. Both pieces
32. When caught, X readily admitted to the of evidence were objected to by the defense. (6%) a) Is
Forestry Ranger that he cut the trees. Such a the newspaper clipping admissible in evidence against
statement may be admitted and is not X? b) Is the certification of the PNP Firearm and
necessarily hearsay because: Explosive Office without the certifying officer
a. it is a judicial admission of guilt. testifying on it admissible in evidence against X?
SUGGESTED ANSWER:
b. it shows the statement was true.
(a) Yes, the newspaper clipping is admissible in
c. it will form part of the circumstantial
evidence to convict. evidence against X. regardless of the truth or falsity
d. it proves that such a statement was of a statement, the hearsay rule does not apply and
made. the statement may be shown where the fact that it is
SUGGESTED ANSWER: made is relevant. Evidence as to the making of such
(d), The statement of X may be admitted statement is not secondary but primary, for the
under the concept of independently statement itself may constitute a fact in issue or be
relevant statement, or statements which circumstantially relevant as to the existence of such
are on the very facts in issue or those fact. (Gotesco Investment Corporation vs. Chatto, 210
which are circumstantial evidence thereof. SCRA 18 [1992]) (b) Yes, the certification is admissible
It is offered in evidence only to prove the in evidence against X because a written statement
tenor thereof, or the fact that such a signed by an officer having the custody of an official
statement was made, and not to prove the record or by his deputy that after diligent search no
truth of the facts asserted therein. Hence, record or entry of a specified tenor is found to exist in
the hearsay rule does not apply. (People the records of his office, accompanied by a certificate
vs. Gaddi, 170 SCRA 649). as above provided, is admissible as evidence that the
records of his office contain no such record or entry.
(Sec. 28 of Rule 132).

________________________________________________________________________________________________
everything that constituted the res gestae

2 CLASSES OF INDEPENDENT RELEVANT of the subject of his statement, but that his
STATEMENT: statement of any given fact should be a
full expression of all he intended to say as
1. Those which are the very fact in issue; conveying his meaning in respect to such
2. Those statements which are fact.
circumstantial evidence of the fact in
issue. It includes the following: REASONS FOR ADMISSION:
1. Necessity--- It is because the declarant’s
a) Statement of a person showing death renders impossible his taking the
his state of mind, that is, his witness stand.
mental condition, knowledge,
belief, intention, ill will and other 2. Trustworthiness--- Maxim: Truth sits on
emotions; the lips of a dying man. At point of
b) Statements of a person which death, every motive for falsehood is
show his physical condition as silenced. The mind is induced by the most
illness and the like; powerful consideration to speak the truth.
c) Statements of a person from
which an inference may be made There must be a settled, hopeless expectation that
as to the state of mind of another, death is at hand. It is sufficient that he believe
that is, knowledge, belief, motive, himself in imminent danger of death at the time of
good/bad faith of the later; such declaration.
d) Statements which may identify the
date, place and person in Determination of consciousness of impending
question; death:
e) Statements showing the lack of
credibility of a witness.
1. Utterances;
2. Circumstances—That at the time of
making the declaration, the declarant did
Section 37. Dying declaration. — The declaration
not expect to survive the injury from which
of a dying person, made under the consciousness he actually died;
of an impending death, may be received in any 3. Actual character and seriousness of his
case wherein his death is the subject of inquiry, as wounds;
evidence of the cause and surrounding 4. By his conduct.
circumstances of such death. (31a)
A dying declaration may be oral or written or made
Note: the ante mortem statements after the mortal
by signs which could be interpreted and testified to
wound has been inflicted under the belief that by a witness thereto.
death is certain, stating the facts concerning the
cause of and circumstances surrounding the Dying declaration favorable to the accused are
attack. admissible.
REQUISITES:
Dying declaration may also be regarded as part of
1. That death is imminent and the declarant res gestae as they were made soon after the
is conscious of such fact;
startling occurrence without the opportunity for
2. That the declaration refers to the cause fabrication or concoction.
and the surrounding circumstances of
such death; Dying declaration is not considered confidential
3. That the declaration relates to the facts communication between spouses.
which the declarant is competent to
testify; A dying declaration may be attacked on the
4. That the declaration is offered in a case ground that any of the requisites for its
wherein the declarant’s death is the admissibility are not present and the same may be
subject of the inquiry;
impeached in the same manner testimony of any
5. That the statement is complete in itself (P.
other witness on the stand.
vs. DeJoya, 203 SCRA 343).
Note: To be complete in itself does not
mean that the declaration must recite
________________________________________________________________________________________________
29. X was shot by Y in the course of a in evidence against himself or his successors in
robbery. On the brink of death, X told W, a interest and against third persons. (32a)
barangay tanod, that it was Y who shot and
held him up. In Bar Exam Question 2011
the trial for robbery with homicide, X's (88) Which of the following is NOT
declaration can be admitted only as a dying REQUIRED of a declaration against interest
declaration: as an exception to the hearsay rule? (A) The
a. to prove robbery. declarant had no motive to falsify and
b. to prove homicide. believed such declaration to be true. (B) The
declarant is dead or unable to testify. (C) The
c. to prove robbery and homicide. declaration relates to a fact against the
interest of the declarant. (D) At the time he
d. to prove the "corpus delicti".
made said declaration he was unaware
SUGGESTED ANSWER:
that the same was contrary to his
(b), a dying declaration is admissible as
aforesaid interest.
evidence if the following circumstances
are present: (a) it concerns the cause and
the surrounding circumstances of the
(46) In which of the following situations is the
declarant‟s death; (b) it is made when
declaration of a deceased person against his
death appears to be imminent and the
interest NOT ADMISSIBLE against him or his
declarant is under a consciousness of
successors and against third persons? (A)
impending death; (c) the declarant would
Declaration of a joint debtor while the debt
have been competent to testify had he or
subsisted. (B) Declaration of a joint owner in
she survived; and (d) the dying declaration
the course of ownership. (C) Declaration of a
is offered in a case in which the subject of
former co-partner after the partnership
inquiry involves the declarant‟s death.
has been dissolved. (D) Declaration of an
(People vs. Jay Mandy Maglian, G.R. No.
agent within the scope of his authority.
189834, March 30, 2011, Velasco, Jr., J.).
Clearly, the dying declaration can only be
REQUISITES:
offered in a case in which the subject of
1. Declarant is dead or unable to testify;
inquiry involves the declarant‟s death, 2. Relates to a fact against the interest of the
and necessarily the same can only be declarant;
admitted to prove the cause and the 3. That at the time the declaration is made,
surrounding circumstances of such death. he was aware that the same was contrary
Be that as it may, the dying declaration to his interest; and
may be offered as part of the res gestae in 4. That the declarant had no motive to falsify
the crime of robbery. and he believed such declaration to be
ALTERNATIVE ANSWER: (c), The former true.
rule was that dying declaration was
inadmissible only in criminal prosecutions REASONS FOR ADMISSION
for homicide, murder or parricide wherein 1. Necessity--- such declarations are the
the declarant victim (People vs. Lara, 54 only mode of proof available.
Phil. 96). As amended, the Rule now 2. Trustworthiness--- persons do not make
provides for such admissibility in any case statements that are disadvantageous to
as long as the requisites concur. themselves without substantial reason to
(Regalado, Remedial Law Compendium, believe that the statements are true. Self-
Vol.II, 2008 Edition, Page 781). interest induces men to be cautious in
saying anything against themselves. In
other words, we can trust a man when he
Section 38. Declaration against interest. — The speaks against his interest.
declaration made by a person deceased, or
unable to testify, against the interest of the INTEREST COVERED
declarant, if the fact is asserted in the declaration Proprietary, penal, pecuniary and penal.
was at the time it was made so far contrary to It is essential that at the time of the statement, the
declarant's own interest, that a reasonable man in declarant’s interest affected thereby should be
his position would not have made the declaration actual, real or apparent not merely contingent,
unless he believed it to be true, may be received future or unconditional; otherwise, the declaration
would not in reality be against interest

________________________________________________________________________________________________
bibles or other family books or charts, engravings

If the declarant is still alive and available as a on rings, family portraits and the like, may be
witness, his declaration would be admissible only received as evidence of pedigree. (34a)
as an admission against himself or privies or if he
testifies, his statement against interest which now NOTE: Family reputation or tradition in respect to
he denies would be admissible against him as a one’s pedigree may be established:
prior inconsistent statement in some instances.
1. Through testimony in open court of a
Viacrusis v. CA, 44 SCRA 176 (1972) Previous witness who must be a member of the
recognition of ownership in another by a party in family either by consanguinity or affinity;
possession of property in dispute is admission 2. Through entries in:
against interest which may be received even a. Family Bible;
against 3rd persons. b. Family books or charts;
c. Engravings on rings;
People v. Toledo, 51 Phil. 825 (1928) Declaration d. Family portraits and the like.
against interest, as an exception to the hearsay
rule, covers not only pecuniary interest, but also The reputation between the declarant and the
penal interest. person subject of the inquiry must be legitimate,
unless the issue is the legitimacy itself.
Admission by Declaration against
privies interest People v. Alegado, 201 SCRA 37 (1991)
One of 3 exceptions Exception to hearsay Testimony of a witness and the witness’
to res inter alios acta grandfather as to the date of birth and age of the
Evidence against the Evidence against even witness is evidence on family tradition which is
successor in interest the declarant, his admissible as an exception to hearsay.
of the admitter successor in interest,
or 3rd persons
Ferrer v. de Inchausti, 38 Phil 905 (1918) Entries
Admitter need not be Declarant is dead or
in family bibles or other family books or charts,
dead or unable to unable to testify
engravings on rings, family portraits and the like,
testify
to be admissible as an evidence of pedigree, need
Relates to title to Relates to any interest NOT be proven to have been made at the same
property time as the occurrence of the events documented.
Admission need not Declaration must be
be against the against the interest of
admitter’s interest the declarant Section 39 Section 40
Act or declaration about Family reputation or
pedigree tradition regarding
pedigree
Section 39. Act or declaration about pedigree.
Witness need not be a Witness is a member of
— The act or declaration of a person deceased, or
member of the family the family
unable to testify, in respect to the pedigree of
Relation of the The witness himself is
another person related to him by birth or marriage,
declarant and the the one to whom the
may be received in evidence where it occurred
person subject of the facts relates. It is not
before the controversy, and the relationship
inquiry must be necessary for him to
between the two persons is shown by evidence
established by establish by
other than such act or declaration. The word
independent evidence independent evidence
"pedigree" includes relationship, family genealogy,
his relationship to the
birth, marriage, death, the dates when and the
family
places where these facts occurred, and the names
Testimony is about Testimony is about
of the relatives. It embraces also facts of family
what declarant, who is family reputation or
history intimately connected with pedigree. (33a)
dead, or unable to tradition covering
testify, has said matters of pedigree
Section 40. Family reputation or tradition concerning the
regarding pedigree. — The reputation or tradition pedigree of the
existing in a family previous to the controversy, in declarant’s family
respect to the pedigree of any one of its members,
may be received in evidence if the witness Admissibility; Proof of Filiation; Action of Partition (2000)
testifying thereon be also a member of the family,
either by consanguinity or affinity. Entries in family

________________________________________________________________________________________________
Linda and spouses Arnulfo and Regina Ceres were Monuments and inscriptions in public places may
coowners of a parcel of land. Linda died intestate and be received as evidence of common reputation.
without any issue. Ten (10) persons headed by Jocelyn, (35)
claiming to be the collateral relatives of the deceased
Linda, filed an action for partition with the RTC MATTERS OF PUBLIC MATTERS OF
praying for the segregation of Linda’s ½ share, INTEREST GENERAL INTEREST
submitting in support of their petition the baptismal Matters common to all Matters common only to
certificates of seven of the petitioners, a family bible citizens of the state or a single community or
belonging to Linda in which the names of the to the entire people to a considerable
petitioners have been entered, a photocopy of the number of persons
birth certificate of Jocelyn, and a certification of the forming part of the
local civil registrar that its office had been completely community
razed by fire. The spouses Ceres refused to partition
on the following grounds: 1) the baptismal certificates Common Reputation
of the parish priest are evidence only of the It is the definite opinion of the community in which
administration of the sacrament of baptism and they the fact to be proved is known or exists. It means
do not prove filiation of the alleged collateral relatives the general or substantially undivided reputation,
of the deceased; 2) entry in the family bible is hearsay; as distinguished from a partial or qualified one,
3) the certification of the registrar on non-availability although it need not be unanimous.
of the records of birth does not prove filiation: 4) in
partition cases where filiation to the deceased is in As a general rule, the reputation of a person
dispute, prior and separate judicial declaration of should be that existing in the place of his
heirship in a settlement of estate proceedings is residence, it may also be that existing in the place
necessary; and 5) there is need for publication as real where he is best known.
property is involved. As counsel for Jocelyn and her
co-petitioners, argue against the objections of the CHARACTER--- means that which a person really
spouses Ceres so as to convince the court to allow the is.
partition. Discuss each of the five (5) arguments briefly REPUTATION--- is that which he is reputed to be.
but completely. (10%)
SUGGESTED ANSWER: EVIDENCE OF NEGATIVE GOOD REPUTE
(1) The baptismal certificate can show filiation or Where the foundation proof shows that the
prove pedigree. It is one of the other means allowed witness was in such position that he would have
under the Rules of Court and special laws to show heard reports derogatory to one’s character, the
pedigree. (Trinidad v. Court of Appeals, 289 SCRA 188 reputation may be predicated on the absence of
[1998]; Heirs of ILgnacio Conti v. Court of Appeals, 300 reports of bad reputation or of the fact that the
SCRA 345 [1998]). witness had heard nothing against the person.
(2) Entries in the family bible may be received as
evidence of pedigree. (Sec. 40, Rule 130, Rules of Court). Section 42. Part of res gestae. — Statements
(3) The certification by the civil registrar of the made by a person while a starting occurrence is
nonavailability of records is needed to justify the taking place or immediately prior or subsequent
presentation of secondary evidence, which is the thereto with respect to the circumstances thereof,
photocopy of the birth certificate of Jocelyn. (Heirs of may be given in evidence as part of res gestae.
Ignacio Conti v. Court of Appeals, supra.) So, also, statements accompanying an equivocal
(4) Declaration of heirship in a settlement proceeding act material to the issue, and giving it a legal
is not necessary. It can be made in the ordinary action significance, may be received as part of the res
for partition wherein the heirs are exercising the right gestae. (36a)
pertaining to the decedent, their predecessor-ininterest,
to ask for partition as co-owners (Id.)
(5) Even if real property is involved, no publication is RES GESTAE
necessary, because what is sought is the mere It literally means things done; it includes the
segregation of Linda’s share in the property. (Sec. 1 of circumstances, facts, and declarations incidental
Rule 69; Id.) to the main fact or transaction necessary to
illustrate its character and also includes acts,
Section 41. Common reputation. — Common words or declaration which are closely connected
reputation existing previous to the controversy, therewith as to constitute part of the transaction.
respecting facts of public or general interest more
than thirty years old, or respecting marriage or
moral character, may be given in evidence. TWO TYPES OF RES GESTAE

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4. Verbal act must be contemporaneous with

1. SPONTAENOUS STATEMENTS the equivocal act.
Statements made by a person while a
startling occurrence is taking place or RES GESTAE in
immediately prior or subsequent thereto connection with a DYING
with respect to the circumstances thereof; homicidal act DECLARATION
May be made by the Can be made only by
2. VERBAL ACTS killer himself after or the victim
Statements accompanying an equivocal during the killing or that
act material to the issue and giving it a of a 3rd person
legal significance. May precede, Made only after the
accompany, or be homicidal attack was
REQUISITES FOR ADMISSIBILITY OF made after the committed
SPONTAENOUS STATEMENTS: homicidal attack was
1. There must be a startling occurrence; committed
2. The statement must relate to the Justification in the Trustworthiness is
circumstances of the startling occurrence; continuity of statement based upon its being
3. The statement must be spontaneous. given in awareness of
impending death
REASON FOR ADMISSIBILITY:
1. Necessity--- natural and spontaneous
statements are more convincing than the SPONTAENOUS VERBAL ACTS
testimony of the same person on the STATEMENTS
stand. The res gestae is the The res gestae is the
2. Trustworthiness--- The statement is startling occurrence equivocal act
made instinctively. The facts speaking Statements may be Verbal acts must be
thru the party not the party talking about made prior, or contemporaneous or
the facts. immediately after the accompany the
startling occurrence equivocal act
It is essential that they should have been caused
by something startling enough to cause nervous
excitement. The declarant must be a witness to
the event to which the utterance relates. He must Section 43. Entries in the course of business.
have personally observed the facts. — Entries made at, or near the time of
transactions to which they refer, by a person
People v. Putian, 74 SCRA 133 (1976) A deceased, or unable to testify, who was in a
declaration made by a person immediately after position to know the facts therein stated, may be
being wounded, pointing out or naming his received as prima facie evidence, if such person
assailant, may be considered as part of the res made the entries in his professional capacity or in
gestae and is admissible in evidence. A statement the performance of duty and in the ordinary or
was given sometime after the stabbing while the regular course of business or duty. (37a)
declarant was undergoing treatment at a medical
clinic, where he had no time to concoct a NOTE: This is otherwise known as the SHOP-
falsehood or to fabricate a malicious charge BOOK RULE.
against the accused and no motive has been
shown as to why he would frame-up the accused
would render the statement admissible as a part of REQUISITES:
the res gestae. 1. That the entrant made the entry in his
professional capacity or in the
Note: What the law distrusts is not the after performance of a duty;
speech but the after thought. 2. That the entry was made in the ordinary
course of business or duty;
REQUISITES FOR THE ADMISSIBLITY OF 3. The entries must have been made at or
VERBAL ACTS: near the time of the transaction to which
1. The act or occurrence must be equivocal; they relate;
2. Verbal acts must characterized or explain 4. The entrant must have been in a position
the equivocal act; to know the facts stated in the entries;
3. Equivocal acts must be relevant to the 5. The entrant must be deceased or unable
issue; to testify.

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The law does not fix the precise moment when the It is well-settled that entries in the police blotter
entries should be made. It is sufficient if the entry should not be given due significance or probative
was made within a reasonable time so that it may value as they are not conclusive evidence of the
appear to have taken place while the memory of truth of their contents but merely of the fact that
the facts was unimpaired. they were recorded. Hence, they do not constitute
conclusive proof (P. vs. Cabrera, Jr. GR NO.
HOW REGULARITIES IN THE ENTRIES 138266, April 30, 2003).
PROVED
It may be proved by the form in which they appear Section 45. Commercial lists and the like. —
in the corresponding book. Evidence of statements of matters of interest to
persons engaged in an occupation contained in a
There is no overriding necessity of bringing into list, register, periodical, or other published
courts all the clerk or employees who individually compilation is admissible as tending to prove the
made the entries in a long account. It is sufficient truth of any relevant matter so stated if that
that the person who supervises them testify that: compilation is published for use by persons
1. The account was prepared under his engaged in that occupation and is generally used
supervision and and relied upon by them therein. (39)
2. The entries were regularly entered in the
ordinary course of business (Regalado, p. REQUISITES:
751). 1. Statements of matters of interest to
persons engaged in an occupation;
Section 44. Entries in official records. — Entries 2. The statement must be contained in a list,
in official records made in the performance of his register, periodical or other published
duty by a public officer of the Philippines, or by a compilation;
person in the performance of a duty specially 3. The compilation is published for the use of
enjoined by law, are prima facie evidence of the persons engaged in that occupation;
facts therein stated. (38) 4. Is generally relied upon by them.
REQUISITES FOR ADMISSIBILTY OF OFFICIAL REASON FOR ADMISSIBLITY

ENTRIES: 1. Necessity--- because of usual
1. That it was made by the public officer in inaccessibility of the persons responsible
the performance of his duty or by another for the compilation of matters contained in
person in the performance of a duty the list, register, periodical or other
specially enjoined by law; and published compilation and tremendous
2. The public officer or the other person had inconvenience it would cause to the court
sufficient knowledge of the facts stated by if it would issue summons to numerous
him which must have been acquired by individuals.
him personally or through official 2. Trustworthiness--- they have no motive
information. to deceive and they further realize that
unless the list, register, periodical or other
REASON FOR ADMISSION published compilation are prepared with
1. Necessity--- practical impossibility of care and accuracy, their work will have no
requiring the official’s attendance as a commercial or probative value
witness to testify to the enumerable
transactions occurring in the course of
duty. Section 46. Learned treatises. — A published
2. Trustworthiness--- there is a treatise, periodical or pamphlet on a subject of
presumption of regularity in the history, law, science, or art is admissible as
performance of official duty. tending to prove the truth of a matter stated
therein if the court takes judicial notice, or a
It is not essential for the officer making the official witness expert in the subject testifies, that the
statement to have a personal knowledge of the writer of the statement in the treatise, periodical or
facts stated by him, it being sufficient that the pamphlet is recognized in his profession or calling
official information was acquired by officers who as expert in the subject. (40a)
prepared the reports from the persons who not
only have personal knowledge of the facts but REASON FOR ADMISSION:
must have the duty to give such statements for the
record.
________________________________________________________________________________________________
1. Necessity--- even if such person is legally ground that Kim merely stated her opinion without
procurable, the expense is frequently having been first qualified as expert witness. Should
disproportionate. you, as judge, exclude the testimony of Kim?
2. Trustworthiness--- learned writers have SUGGESTED ANSWER:
no motive to misrepresent. He is aware No. The testimony of Kim should not be excluded.
that his work will be carefully scrutinized Even though Kim is not an expert witness, Kim may
by the learned members of his profession testify on her impressions of the emotion, behavior,
and that he shall be subject to criticisms condition or appearance of a person. (Sec.50,lastpar.Rule
and ultimately rejected as an authority on 130).
the subject matter if his conclusions are
found to be invalid. Section 49. Opinion of expert witness. — The
opinion of a witness on a matter requiring special
Section 47. Testimony or deposition at a former knowledge, skill, experience or training which he
proceeding. — The testimony or deposition of a shown to posses, may be received in evidence.
witness deceased or unable to testify, given in a (43a)
former case or proceeding, judicial or
administrative, involving the same parties and EXPERT EVIDENCE
subject matter, may be given in evidence against It refers to the testimony of one possessing, in
the adverse party who had the opportunity to regard to a particular subject or department of
cross-examine him. (41a) human activity, knowledge which is not usually
acquired by other persons.
NOTE: In case of De Leon vs. People, 210 SCRA
151, the court allows the admission of testimonies TEST: Whether the opinion called for, will aid the
during preliminary investigation as produced and fact finder in resolving an issue.
admitted during the trial when the witness died
before trial of the case.[ This ruling is criticized- An expert witness may base his opinion either on
Ucat; precisely because there is no right to cross- the first-hand knowledge of the facts or on the
examination during the Preliminary Investigation] basis of hypothetical questions where the facts
presented to him hypothetically and on the
7. Opinion Rule assumption that they are true, formulates his
opinion on the hypothesis.
Section 48. General rule. — The opinion of
witness is not admissible, except as indicated in EXPERT EVIDENCE ADMISSIBLE ONLY IF:
the following sections. (42) 1. The matter to be testified requires
expertise;
OPINION 2. The witness has been qualified as an
An inference or conclusion drawn from facts expert.
observed.
HOW TO PRESENT AN EXPERT WITNESS:
GR: Ordinary witness must give the facts and not 1. Introduce and qualify the witness;
their inferences, conclusions or opinions (sec 48). 2. Let him give his factual testimony if he has
EXCEPTION: Section 50. knowledge of the facts;
3. Begin the hypothetical question by asking
REASON: It is for the court to form an opinion him to assume certain facts to be true;
concerning the facts in proof of which evidence is 4. Conclude the question, by, first asking
offered. that expert if he has an opinion to a
certain point assuming that these facts are
Witness must testify to facts within their true and secondly, asking him, after he
knowledge and may not state their opinions. has answered affirmatively, to give his
opinion on the point;
Opinion Rule (1994) 5. After he has stated his opinion, ask him to
At Nolan’s trial for possession and use of the give his reasons.
prohibited drug, known as “shabu:, his girlfriend Kim,
testified that on a particular day, he would see Nolan Hypothetical questions may be asked of an expert
very prim and proper, alert and sharp, but that three witness to elicit his opinion. The courts, however,
days after, he would appear haggard, tired and overly are not necessarily bound by the expert’s findings.
nervous at the slightest sound he would hear. Nolan
objects to the admissibility of Kim’s testimony on the HYPOTHETICAL QUESTION

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A proper hypothetical question places before the

expert witness assumed facts which have been In truth, that which we call opinion is fact. The
proved. It then calls for an opinion based thereon impression or conclusion is the sum of what he
(Herrera, p. 794). saw and its final analysis, the offer is to prove fact
and not an opinion.
Hypothetical question must include only facts that
are supported by evidence (Francisco, p. 352). 8. Character Evidence

Section 51. Character evidence not generally
(30) In a case, the prosecutor asked the admissible; exceptions: —
medical expert the question, "Assuming that
the assailant was behind the deceased before
(a) In Criminal Cases:
he attacked him, would you say that
treachery attended the killing?" Is this
hypothetical question permissible? (A) No, (1) The accused may prove his
since it asks for his legal opinion. (B) Yes, good moral character which is
but conditionally, subject to subsequent pertinent to the moral trait
proof that the assailant was indeed behind involved in the offense charged.
the deceased at that time. (C) Yes, since
hypothetical questions may be asked of an (2) Unless in rebuttal, the
expert witness. (D) No, since the medical prosecution may not prove his
expert has no personal knowledge of the fact. bad moral character which is
pertinent to the moral trait
involved in the offense charged.
Section 50. Opinion of ordinary witnesses. —
The opinion of a witness for which proper basis is (3) The good or bad moral
given, may be received in evidence regarding — character of the offended party
may be proved if it tends to
(a) the identity of a person about whom establish in any reasonable
he has adequate knowledge; degree the probability or
improbability of the offense
charged.
(b) A handwriting with which he has
sufficient familiarity; and
Note: However, the following are
exceptions of (3) above:
(c) The mental sanity of a person with
whom he is sufficiently acquainted.
1. Proof of bad character of
the victim in a murder
The witness may also testify on his impressions case is not admissible if
of the emotion, behavior, condition or appearance the crime is committed
of a person. (44a) through treachery and
premeditation; and
Ordinary Opinion Evidence 2. In prosecution for rape,
That which is given by a witness who is of ordinary evidence of complainant’s
capacity and who has by opportunity acquired a past sexual conduct,
particular knowledge which is outside the limits of opinion thereof or of
common observation and which may be of value his/her reputation shall
in elucidating a matter under consideration. not be admitted unless,
and only to the extent that
Shorthand Rendering of Facts the court finds that such
This is also known as “Instantaneous evidence is material and
Conclusion of the Mind” (Herrera, p. 827). relevant to the case
(Rape Shield, RA 8505,
The memory may retain no single detail indeed. sec. 6) [sexual abuse
One may never have recognized a single detail shield rule].
yet the appearance of the man may have left upon
the mind an indelible impression as to his physical (b) In Civil Cases:
and mental condition.

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Evidence of the moral character of a party criminal cases under certain situations, but
in civil case is admissible only when not to prove the bad moral character of the
pertinent to the issue of character involved offended party (D) when it is evidence of the
in the case. good character of a witness even prior to his
impeachment as witness (E) In none of the
(c) In the case provided for in Rule 132, given situations above.
Section 14, (46a, 47a) SUGGESTED ANSWER: (A), Under Section
51, Rule 130 of the Rules of Court, the
accused may prove his good moral
Character Evidence; Bad Reputation (2010) No.XII. In character which is pertinent to the moral
a prosecution for murder, the prosecutor asks accused trait involved in the offense charged.
Darwin if he had been previously arrested for violation (Section 51 (a) (1) Rule 130, Rules on
of the Anti- Graft and Corrupt Practices Act. As defense Evidence).
counsel, you object. The trial court asks you on what
ground/s. Respond. (3%) SUGGESTED ANSWER: The
objection is on the ground that the fact sought to be NOTE: In both criminal and civil cases, the bad
elicited by the prosecution is irrelevant and moral character of a witness may always be
immaterial to the offense under prosecution and proved by either party (sec. 11, Rule 132 but not
trial. Moreover, the Rules do not allow the evidence of his good moral character, unless such
prosecution to adduce evidence of bad moral character has been impeached (sec. 14).
character of the accused pertinent to the offense
charged, except on rebuttal and only if it involves a Specific conduct of a party exhibiting character is
prior conviction by final judgment (Rule 130, Sec. 51, not allowed to prove the character of such person
Rules of Court). for three reasons:
1. Undue prejudice;
Character Evidence (2002) 2. Unfair surprise;
D was prosecuted for homicide for allegedly beating 3. Confusion of issues (Francisco, . 373).
up V to death with an iron pipe.
A. May the prosecution introduce evidence that V had
a good reputation for peacefulness and nonviolence?
Why? (2%) II. Which of the following is admissible? (1%)
B. May D introduce evidence of specific violent acts (A) The affidavit of an affiant stating that he
by V? Why? (3%) witnessed the execution of a deed of sale but
SUGGESTED ANSWER:
the affiant was not presented as a witness in
A. The prosecution may introduce evidence of the the trial. (B) The extra judicial admission
good or even bad moral character of the victim if it made by a conspirator against his co-
tends to establish in any reasonable degree the conspirator after the conspiracy has ended.
probability or improbability of the offense charged. (C) The testimony of a party‟s witness
[Rule 130, sec. 51 a (3)]. In this case, the evidence is not
regarding email messages the witness
relevant. received from the opposing party. (D) The
B. Yes, D may introduce evidence of specific violent testimony of a police officer that he had
acts by V. Evidence that one did or did not do a been told by his informants that there
certain thing at one time is not admissible to prove were sachets of shabu in the pocket of the
that he did or did not do the same or a similar thing at defendant. (E) None of the above.
another time; but it may be received to prove a specific
intent or knowledge, identity, plan, system, scheme, SUGGESTED ANSWERS: (C), (D), or (E) (C),
habit, custom or usage, and the like. (Rule 130, sec. 34). The E-mail messages are considered
electronic data message or electronic
Bar Exam Questions 2013 document under the Rules on Electronic
V. Character evidence is admissible Evidence and therefore admissible as
__________. (1%) (A) in criminal cases – the evidence. The terms “electronic data
accused may prove his good moral message” and “electronic document” are
character if pertinent to the moral trait defined in the Rules on Electronic
involved in the offense charged (B) in Evidence. Thus:
criminal cases – the prosecution may prove (g) “Electronic data message” refers to
the bad moral character of the accused to information generated, sent, received or
prove his criminal predisposition (C) in stored by electronic, optical or similar

________________________________________________________________________________________________
means. (h) “Electronic document” refers statements were made is relevant, and the
to information or the representation of truth or falsity thereof is immaterial. The
information, data, figures, symbols or hearsay rule does not apply: hence, the
other modes of written expression, statements are admissible as evidence.
described or however represented, by Evidence as to the making of such
which a right is established or an statement is not secondary but primary,
obligation extinguished, or by which a fact for the statement itself may constitute a
may be proved and affirmed, which is fact in issue or be circumstantially
received, recorded, transmitted, stored, relevant as to the existence of such a fact.
processed, retrieved or produced The witness who testifies thereto is
electronically. It includes digitally signed competent because he heard the same, as
documents and any printout or output, this is a matter of fact derived from his
readable by sight or other means, which own perception, and the purpose is to
accurately reflects the electronic data prove either that the statement was made
message or electronic document. For or the tenor thereof (People vs. Malibiran,
purposes of these Rules, the term G.R. No. 178301, April 24, 2009, Austri-
“electronic document” may be used Martinez, J.). (E), The problem does not
interchangeably with “electronic data clearly provide the purposes for which the
message” (Section 1, (g), (h) Rule 2, AM evidence under (C) and (D) are being
No. 01-7-01-SC, Rules on Electronic offered. Moreover, all of the choices above
Evidence). cannot be admitted to prove the truth of
the contents thereof for the reason that
In MCC Industrial Sales Corporation vs. the evidence is not competent. For letter
Ssangyong Corporation, G.R. No. 170633, (A), the affiant is not presented, and hence
the Supreme Court held that R.A. No. hearsay. Letter (B), the admission was
8792, otherwise known as the Electronic made after the termination of the
Commerce Act of 2000, considers an conspiracy and extrajudicial, hence there
electronic data message or an electronic is no application of the Res Inter Alios
document as functional equivalent of a Acta rule. Letter (C) is also not allowed as
written document for evidentiary under the Electronic Evidence Rule, the
purposes. The Rules on Electronic output readable by sight is the best
Evidence regards an electronic document evidence to prove the contents thereof.
as admissible in evidence if it complies Letter (D) is hearsay since the affiant does
with the rules on admissibility prescribed not have personal knowledge.
by the Rules of Court and related laws,
and is authenticated in the manner Bar Exam Question 2011
prescribed by the said Rules. An electronic (75) Character evidence is admissible (A) in
document is also the equivalent of an criminal cases, the accused may prove his
original document under the Best good moral character if pertinent to the
Evidence Rule, if it is a printout or output moral trait involved in the offense
readable by sight or other means, shown charged. (B) in criminal cases, the
to reflect the data accurately. (D), If the prosecution may prove the bad moral
testimony is being offered for the purpose character of the accused to prove his criminal
of establishing that such statements were predisposition.
made, then the testimony is admissible as (C) in criminal cases, the bad moral character
independent relevant statement. The of the offended party may not be proved. (D)
Doctrine on independent relevant when it is evidence of the good character of a
statement holds that conversations witness even prior to impeachment.
communicated to a witness by a third
person may be admitted as proof,
regardless of their truth or falsity, that
they were actually made (Republic vs. RULE 131
Heirs of Alejaga Sr., G.R. No. 146030,
December 3, 2002).
Burden of Proof and Presumptions
The doctrine of independently relevant
statements is an exception to hearsay Section 1. Burden of proof. — Burden of proof is
rule. It refers to the fact that such the duty of a party to present evidence on the

________________________________________________________________________________________________
facts in issue necessary to establish his claim or admits, generally, all the allegations in the
defense by the amount of evidence required by complaint.
law. (1a, 2a)
B. Criminal Cases
PROOF The burden of proof is with the prosecution
It refers to the establishment of a requisite degree because of the presumption of innocence.
of belief in the mind of the trier of fact as to the
fact in issue. The burden of proof as to the guilt of the accused
must be borne by the prosecution. It is required
Burden of Proof vs. Burden of Evidence (2004) that courts determine first if the evidence of the
Distinguish Burden of proof and burden of evidence. prosecution has at least established a prima facie
SUGGESTED ANSWER: case before considering the evidence of the
Burden of proof is the duty of a party to present defense.
evidence on the facts in issue necessary to establish his
claim or defense by the amount of evidence required If the prosecution does not have a prima facie
by law. (Sec. 1 of Rule 131), while burden of evidence is the case, it is futile to waste time in considering the
duty of a party to go forward with the evidence to evidence presented by the defense. Should the
overthrow prima facie evidence established against prosecution succeed in establishing a prima facie
him. (Bautista v. Sarmiento, 138 SCRA 587 [1985]). case against the accused, the burden is shifted
upon the accused to prove otherwise.
TWO SEPARATE BURDENS IN BURDEN OF Under the Speedy Trial Act, if the accused
PROOF is not brought to trial within the time
1. Burden of going forward--- that of required, the information shall be
producing evidence. dismissed on motion of the accused. In
2. Burden of persuasion--- the burden of this case, the burden of proof of
persuading the trier of fact that the supporting the motion is with the accused
burdened party must prevail. (sec. 13, RA 8493).
“He who asserts, not the one who denies , DEGREE OF PROOF THAT SATISFIES THE
must prove.” BURDEN OF PROOF
A. CIVIL CASES
UPON WHOM BURDEN OF PROOF RESTS: Preponderance of evidence.
A: Civil Cases B. CRIMINAL CASES

1. Plaintiff has the burden of proof to show
the truth of his allegations if defendant TO SUSTAIN PRELIMINARY ISSUANCE
raises negative defenses; CONVICTION INVESTIGATION OF
2. Defendant has the burden of proof if he WARRANT
raises affirmative defenses on the OF ARREST
complaint of the plaintiff. Evidence of Engenders a will Probable
guilt beyond founded belief of cause;
NOTE: In a civil case, the plaintiff is compelled to reasonable the fact of the That there is
allege affirmative assertions in his complaint. doubt commission of a reasonable
When he alleges a cause of action, he will be crime ground to
forced to allege that he has a right and such right believe that
is violated by the defendant. Thus he has the duty the accused
to prove the existence of this affirmative has
allegations. committed
an offense
When the defendant files and answer and sets out
a purely negative defense and no evidence is
presented by both parties, it is the defendant who C. ADMINISTRATIVE CASES
will win the case since the plaintiff has not Substantial evidence.
presented the quantum of evidence required by
law. On the other hand, if the defendant sets up
an affirmative defense, if there is no evidence HEIRARCHY OF EVIDENCE
presented by both sides, it is the defendant who
will lose the case. Affirmative defense virtually 1. Proof beyond reasonable doubt;

________________________________________________________________________________________________
2. Clear and convincing evidence; The plaintiff has to prove his affirmative
3. Preponderance of evidence; allegations in the complaint and the defendant to
4. Substantial evidence. prove the affirmative allegations in his
counterclaim and affirmative defenses.
Burden of Evidence
It is the logical necessity of a party during a B. CRIMINAL CASES:
particular time of the trial to create a prima facie The prosecution has to prove its affirmative
case in his favor or to destroy that created against allegations in the information/complaint regarding
him by presenting evidence. the elements as well as the attendant
circumstances while the defense has to prove its
In both civil and criminal cases, the burden of affirmative allegations regarding the existence of
evidence lies on the party who asserts an justifying or exempting circumstances, absolutory
affirmative allegations. causes or mitigating circumstances.
PRINCIPLE OF NEGATIVING AVERMENTS

BURDEN OF PROOF BURDEN OF
EVIDENCE GR: Negative averments need not be proved,
Does not shift and Shifts from party to whether in a civil or criminal action.
remains throughout the party depending upon
entire case exactly the exigencies of the EXCEPTION: Where such negative allegation is
where the pleadings case in the course of an essential part of the cause of action or defense
originally placed it the trial in a civil case, or are essential ingredients of the
Generally determined offense in a criminal case or defense thereto.
Generally determined by the developments of
by the pleadings filed the trial, or by the HOWEVER, in civil cases, even if the negative
by the party provisions of allegation is an essential part of the cause of
substantive law or action or defense, such negative allegation does
procedural rules which not have to be proved if it is only for the purpose
may relieve the party of denying the existence of a document which
from presenting should properly be in the custody of the adverse
evidence on the facts party.
alleged
In a criminal case, the rule is that if the subject of
the negative averment inheres in the offense as
Preponderance vs. Substantial Evidence (2003) an essential ingredient thereof; the prosecution
Distinguish preponderance of evidence from has the burden of proving the same. In view,
substantial evidence. 4% however, of the difficult office of proving a
SUGGESTED ANSWER: negative allegation, the prosecution, under such
PREPONDERANCE OF EVIDENCE means that circumstance, need to do no more than make a
the evidence as a whole adduced by one side is prima facie case from best evidence obtainable
superior to that of the other. This is applicable in civil (P. vs. Quebral, 68 Phil. 564).
cases. (Sec. 1 of Rule 133; Municipality of Moncada v.
Cajuigan, 21 Phil, 184 [1912]).
SUBSTANTIAL EVIDENCE is that amount of
relevant evidence which a reasonable mind might PRESUMPTIONS
accept as adequate to justify a conclusion. This is An inference as to the existence or non-existence
applicable in case filed before administrative or of a fact which courts are permitted to draw from
quasijudicial bodies. (Sec. 5 of Rule 133) the proof of other facts.
Note however that not all cases falling under
administrative process requires substantial evidence as A presumption shifts the burden of going forward
enough to support a decision; e.g. dismissal of judges with evidence. It imposes on the party against
under Office of Court Administrator requires proof of whom it is directed the burden of going forward
guilt beyond reasonable doubt and also court personnels - with evidence to meet or rebut the presumption.
Genesis)
EFFECT OF A LEGAL PRESUMPTION UPON
UPON WHOM BURDEN OF EVIDENCE RESTS THE BURDEN OF PROOF AND BURDEN OF
EVIDENCE.
A. CIVIL CASES: It does not shift the burden of proof. It remains
where it is, but the presumption, the one who has

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the burden is relieved from the time being, from (b) The tenant is not permitted to deny the
introducing evidence in support of his averment title of his landlord at the time of
because stands in place of evidence. commencement of the relation of landlord
and tenant between them. (3a)
NOTE: “Presumptions are like bats of law flitting in
the twilight, but disappearing in the sunshine of This is ESTOPPEL BY DEED.
actual facts” (Wigmore).
Statutory provisions on Estoppel:
CLASSIFICATION OF PRESUMPTIONS:
1. PRESUMPTION (juris) OF LAW--- It is a Art. 1431. Through estoppel an admission or

deduction which the law directs to be representation is rendered conclusive upon the
made from particular facts. person making it, and cannot be denied or
2. PRESUMPTION (hominis) OF FACT--- It disproved as against the person relying thereon.
is a deduction which reason draws from
facts proved without an express direction
from the law to that effect. Art. 1432. The principles of estoppel are hereby
adopted insofar as they are not in conflict with
PRESUMPTIONS OF PRESUMPTIONS OF the provisions of this Code, the Code of
LAW FACT Commerce, the Rules of Court and special laws.
Certain inference must Discretion is vested in
be made whenever the the tribunal as to the Art. 1433. Estoppel may be in pais or by deed.
facts appear which drawing of inference
furnish the basis of the
inference Art. 1434. When a person who is not the owner of
Reduced to fix rules Derived wholly and a thing sells or alienates and delivers it, and later
and form part of the directly from the the seller or grantor acquires title thereto, such
system of jurisprudence circumstances of the title passes by operation of law to the buyer or
particular case by
grantee.
means of common
experience of man
Art. 1435. If a person in representation of another
PRESUMPTION OF LAW MAY BE DIVIDED sells or alienates a thing, the former cannot
INTO: subsequently set up his own title as against the
1. CONCLUSIVE PRESUMPTION (juris et buyer or grantee.
de jure)--- Which is a presumption of law
that is not permitted to be overcome by
proof to the contrary. Art. 1436. A lessee or a bailee is estopped from
2. DISPUTABLE PRESUMPTIONS (juris asserting title to the thing leased or received, as
tantum)--- It is that which the law permits against the lessor or bailor.
to be overcome or contradicted by proofs
to the contrary; otherwise the same Art. 1437. When in a contract between third
remains satisfactory.
persons concerning immovable property, one of
them is misled by a person with respect to the
Section 2. Conclusive presumptions. — The
following are instances of conclusive ownership or real right over the real estate, the
presumptions: latter is precluded from asserting his legal title or
interest therein, provided all these requisites are
(a) Whenever a party has, by his own present:
declaration, act, or omission, intentionally
and deliberately led another to believe a (1) There must be fraudulent representation or
particular thing true, and to act upon such
belief, he cannot, in any litigation arising
wrongful concealment of facts known to the party
out of such declaration, act or omission, estopped;
be permitted to falsify it:
(2) The party precluded must intend that the
This is ESTOPPEL IN PAIS. other should act upon the facts as
misrepresented;

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(3) The party misled must have been unaware of (a) That a person is innocent of crime or
the true facts; and wrong;
(b) That an unlawful act was done with an

(4) The party defrauded must have acted in
unlawful intent;
accordance with the misrepresentation.
(c) That a person intends the ordinary
Art. 1438. One who has allowed another to consequences of his voluntary act;
assume apparent ownership of personal property
for the purpose of making any transfer of it, (d) That a person takes ordinary care of his
cannot, if he received the sum for which a pledge concerns;
has been constituted, set up his own title to
defeat the pledge of the property, made by the (e) That evidence willfully suppressed would
other to a pledgee who received the same in be adverse if produced;
good faith and for value.
(f) That money paid by one to another was
due to the latter;
Art. 1439. Estoppel is effective only as between
the parties thereto or their successors in interest. (g) That a thing delivered by one to another
belonged to the latter;
SOME OTHER CONCLUSIVE PRESUMPTIONS:
1. Under the Torrens System, registration is (h) That an obligation delivered up to the
conclusive notice to the whole world of debtor has been paid;
acts or dealings respecting the land;
2. Upon publication of laws, there is
(i) That prior rents or installments had been
conclusive presumption that everybody
paid when a receipt for the later one is
knows the law. Hence, ignorance of the
produced;
law excuses no one from compliance
therewith.
3. Art. 167,FC. The child shall be considered (j) That a person found in possession of a
legitimate although the mother may have thing taken in the doing of a recent wrongful
declared against its legitimacy or may have act is the taker and the doer of the whole act;
been sentenced as an adulteress. otherwise, that things which a person
possess, or exercises acts of ownership over,
are owned by him;
71. Under the Rules on Evidence, the (k) That a person in possession of an order on
following is a conclusive presumption and himself for the payment of the money, or the
therefore cannot be contradicted by evidence. delivery of anything, has paid the money or
a. A person intends the ordinary delivered the thing accordingly;
consequences of his voluntary act.
b. Official duty has been regularly performed. (l) That a person acting in a public office was
c. A tenant cannot deny his landlord's title regularly appointed or elected to it;
during the tenancy period.
d. A writing is truly dated. (m) That official duty has been regularly
SUGGESTED ANSWER: (c), The tenant is performed;
not permitted to deny the title of his
landlord at the time of the (n) That a court, or judge acting as such,
commencement of the Relation of whether in the Philippines or elsewhere, was
landlord and tenant between them (Rule acting in the lawful exercise of jurisdiction;
131, Sec.2, Rules of Court).
(o) That all the matters within an issue raised
Section 3. Disputable presumptions. — The in a case were laid before the court and
following presumptions are satisfactory if passed upon by it; and in like manner that all
uncontradicted, but may be contradicted and matters within an issue raised in a dispute
overcome by other evidence: submitted for arbitration were laid before the
arbitrators and passed upon by them;

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(p) That private transactions have been fair present may contract a subsequent
and regular; marriage if he or she has well-founded
belief that the absent spouse is already
(q) That the ordinary course of business has dead. In case of disappearance, where
been followed; there is a danger of death the
circumstances hereinabove provided, an
absence of only two years shall be
(r) That there was a sufficient consideration
sufficient for the purpose of contracting a
for a contract;
subsequent marriage. However, in any
case, before marrying again, the spouse
(s) That a negotiable instrument was given or present must institute a summary
indorsed for a sufficient consideration; proceedings as provided in the Family
Code and in the rules for declaration of
(t) That an endorsement of negotiable presumptive death of the absentee,
instrument was made before the instrument without prejudice to the effect of
was overdue and at the place where the reappearance of the absent spouse.
instrument is dated;
(x) That acquiescence resulted from a belief
(u) That a writing is truly dated; that the thing acquiesced in was conformable
to the law or fact;
(v) That a letter duly directed and mailed was
received in the regular course of the mail; (y) That things have happened according to
the ordinary course of nature and ordinary
(w) That after an absence of seven years, it nature habits of life;
being unknown whether or not the absentee
still lives, he is considered dead for all (z) That persons acting as copartners have
purposes, except for those of succession. entered into a contract of co-partnership;
The absentee shall not be considered dead (aa) That a man and woman deporting
for the purpose of opening his succession till themselves as husband and wife have
after an absence of ten years. If he entered into a lawful contract of marriage;
disappeared after the age of seventy-five
years, an absence of five years shall be (bb) That property acquired by a man and a
sufficient in order that his succession may be woman who are capacitated to marry each
opened. other and who live exclusively with each other
as husband and wife without the benefit of
The following shall be considered dead for all marriage or under void marriage, has been
purposes including the division of the estate obtained by their joint efforts, work or industry.
among the heirs:
(cc) That in cases of cohabitation by a man
(1) A person on board a vessel lost during and a woman who are not capacitated to
a sea voyage, or an aircraft with is marry each other and who have acquire
missing, who has not been heard of for properly through their actual joint contribution
four years since the loss of the vessel or of money, property or industry, such
aircraft; contributions and their corresponding shares
including joint deposits of money and
(2) A member of the armed forces who evidences of credit are equal.
has taken part in armed hostilities, and
has been missing for four years; (dd) That if the marriage is terminated and
the mother contracted another marriage
(3) A person who has been in danger of within three hundred days after such
death under other circumstances and termination of the former marriage, these
whose existence has not been known for rules shall govern in the absence of proof to
four years; the contrary:
(4) If a married person has been absent (1) A child born before one hundred eighty
for four consecutive years, the spouse days after the solemnization of the

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subsequent marriage is considered to 3. If one is under fifteen and the other

have been conceived during the former above sixty, the former is deemed to have
marriage, provided it be born within the survived;
three hundred days after the termination
of the former marriage. 4. If both be over fifteen and under sixty,
and the sex be different, the male is
(2) A child born after one hundred eighty deemed to have survived, if the sex be the
days following the celebration of the same, the older;
subsequent marriage is considered to
have been conceived during such 5. If one be under fifteen or over sixty, and
marriage, even though it be born within the other between those ages, the latter is
the three hundred days after the deemed to have survived.
termination of the former marriage. [ART.
168, FC] (kk) That if there is a doubt, as between two or
more persons who are called to succeed each
(ee) That a thing once proved to exist other, as to which of them died first, whoever
continues as long as is usual with things of the alleges the death of one prior to the other,
nature; shall prove the same; in the absence of proof,
they shall be considered to have died at the
(ff) That the law has been obeyed; same time. (5a) [ART. 43, NCC]
(gg) That a printed or published book, P. vs. Padiernos, 69 SCRA 484 (1976) Mere
purporting to be printed or published by public non-presentation of a written statement of a
authority, was so printed or published; witness to the police which she allegedly did not
sign, does not give rise to the presumption that it
(hh) That a printed or published book, "contained declarations disastrous to the
purporting to contain reports of cases prosecution case". The presumption that
adjudged in tribunals of the country where the suppressed evidence is unfavorable does not
book is published, contains correct reports of apply where the evidence was at the disposal of
such cases; both the defense and the prosecution through
use of compulsory processes, e.g. subpoena
duces tecum.
(ii) That a trustee or other person whose duty
it was to convey real property to a particular
person has actually conveyed it to him when People vs. Pablo, 213 SCRA 1 (1992) The
such presumption is necessary to perfect the presumption that evidence willfully suppressed
title of such person or his successor in would be adverse if produced does not apply
interest; when the testimony of the witness is merely
corroborative. Neither does it apply in cases
where the witness, as in this case, is available to
(jj) That except for purposes of succession,
the accused because then, the evidence would
when two persons perish in the same
calamity, such as wreck, battle, or have the same weight against one party as
against the other. Mere failure to present the
conflagration, and it is not shown who died
poseur-buyer in a buy-bust operation is not
first, and there are no particular circumstances
suppression of evidence.
from which it can be inferred, the survivorship
is determined from the probabilities resulting
from the strength and the age of the sexes, Section 4. No presumption of legitimacy or
according to the following rules: illegitimacy. — There is no presumption of
legitimacy of a child born after three hundred days
following the dissolution of the marriage or the
1. If both were under the age of fifteen
separation of the spouses. Whoever alleges the
years, the older is deemed to have
legitimacy or illegitimacy of such child must prove
survived;
his allegation. (6) [ART. 169, FC]
2. If both were above the age sixty, the
younger is deemed to have survived;

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11. Not be repetitious;

12. Not call for a narration.
RULE 132
Section 2. Proceedings to be recorded. — The
Presentation of Evidence entire proceedings of a trial or hearing, including
the questions propounded to a witness and his
A. EXAMINATION OF WITNESSES answers thereto, the statements made by the
judge or any of the parties, counsel, or witnesses
with reference to the case, shall be recorded by
Section 1. Examination to be done in open means of shorthand or stenotype or by other
court. — The examination of witnesses presented means of recording found suitable by the court.
in a trial or hearing shall be done in open court,
and under oath or affirmation. Unless the witness
A transcript of the record of the proceedings made
is incapacitated to speak, or the questions calls for
by the official stenographer, stenotypist or
a different mode of answer, the answers of the
recorder and certified as correct by him shall be
witness shall be given orally. (1a)
deemed prima facie a correct statement of such
proceedings. (2a)
HOW ORAL EVIDENCE GIVEN--- It is usually
given orally in open court. Therefore, generally,
testimonies of witnesses cannot be presented in Section 3. Rights and obligations of a witness.
affidavits. — A witness must answer questions, although his
answer may tend to establish a claim against him.
However, it is the right of a witness:
However, affidavits are used in lieu testimonies
may be given under the Rules on Summary
Procedure. (1) To be protected from irrelevant,
improper, or insulting questions, and from
PURPOSE: It is to enable the court to judge the harsh or insulting demeanor;
credibility of the witness’ manner of testifying, their
intelligence and their appearance. (2) Not to be detained longer than the
interests of justice require;
Testimony of witnesses shall be given under oath
or affirmation. (3) Not to be examined except only as to
matters pertinent to the issue;
TWO-FOLD PURPOSE REQUIRING WITNESS
TO BE SWORN:
(4) Not to give an answer which will tend
1. By affecting the conscience of the witness to subject him to a penalty for an offense
to compel him to speak the truth; unless otherwise provided by law; or
2. If he willfully falsifies the truth, that he may
be punished for his perjury.
(5) Not to give an answer which will tend
The right to have the witness sworn may be to degrade his reputation, unless it to be
waived, if a party fails to object to the taking of the very fact at issue or to a fact from
testimony without the administration of an oath, he which the fact in issue would be
will be deemed to have waived his objection. presumed. But a witness must answer to
the fact of his previous final conviction for
QUESTIONS PROPOUNDED TO THE WITNESS an offense. (3a, 19a)
MUST:
Right of the witness to be free from violence.
1. Not be indefinite or uncertain; The action of the judge in seizing the witness by
2. Be relevant; the shoulder and turning him about (to look to the
3. Not be argumentative; judge) was unwarranted and an interference with
4. Not call for a conclusion of law; that freedom from unlawful personal violence to
5. Not call for opinion or hearsay evidence; which every witness is entitled while giving the
6. Not call for illegal answer; testimony in court, which his attorney had the right
7. Not call for self-incriminating testimony; to protest and to demand that the incident be
8. Not be leading; made of record (In Re: Aguas).
9. Not be misleading;
10. Not tend to degrade the reputation of Scope of right against self-incrimination
witness;

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1. No person shall be compelled to be a in any matter in connection with the

witness against himself; criminal prosecution of the witness. It
2. The rule may be invoked in any court of does not render a witness immune from
proceeding; prosecution.
3. The rule only covers testimonial 2. Transactional Immunity--- Grants
compulsion. immunity to the witness from prosecution
for an offense to which the compelled
Rationale against testimonial compulsion: testimony relates.
The court may not extract from the defendant’s
own lips and against his will an admission of his RA 6981(WITNESS PROTECTION, SECURITY,
guilt. AND BENEFIT ACT)
When act is TESTIMONIAL: Who ay be admitted (sec. 3):

If it explicitly or implicitly relate a factual assertion
or discloses information. Any person who has witnessed or has knowledge
or information on the commission of a crime and
When is there compulsion: has testified or is testifying or about to testify
It is present only if a witness has asserted right to before any judicial or quasi-judicial body, or before
refuse to disclose self-incriminating information any investigating authority, may be admitted to the
and this refusal has been overridden. program.
Provided, that:
Forced Re-enactment
It comes within the ban since prohibition against 1. The offense in which his testimony will be
testimonial compulsion extend to those used is a grave felony as defined under
communicative in nature. the RPC or its equivalent in special laws;
2. His testimony can be corroborated in
RIGHTS OF A DEFENDANT material points;
He has the right to be exempt from being a 3. He or any member of his family within the
witness against himself, cannot be compelled to second degree of consanguinity or affinity
testify or produce evidence in the criminal case in is subjected to threats to his life or bodily
which he is the accused or one of the accused, he injury;
cannot be compelled to do so even by subpoena 4. He is not a law enforcement officer.
or order of the court. He cannot be required either
for the prosecution, for co-accused or even for
himself. STATE WITNESS
It refers to a person who has participated in the
A ordinary witness or a party in a civil action commission of the crime and desires to be a state
An ordinary witness may be compelled to testify witness for the state shall be admitted to the
by subpoena, having only the right to refuse to program whenever the following circumstances
answer a particular incriminating question at the are present:
time it is put to him.
1. The offense in which his testimony will be
Limitation if a witness is party in a civil action used is a grave felony as defined under
Before the plaintiff could compel the defendant to the RPC or its equivalent in special laws;
be a witness, the plaintiff must first prove that he 2. Absolute necessity of the testimony;
has submitted written interrogatories to the 3. There is no direct evidence available for
defendant (Rule 25, sec.6) the proper prosecution of the offense
committed;
The exception under no. 4 refers to immunity 4. His testimony can be substantially
statutes wherein the witness is granted immunity corroborated in its material points;
from criminal prosecution for offenses admitted in 5. He does not appear to be the most
his testimony, e.g. under sec. 8, RA 1379, THE guilty;
LAW PROVIDING FOR FORFEITURE OF 6. He has not at any time been convicted of
ILLEGALLY ACQUIRED PROPERTY; and under an offense involving moral turpitude
PD 749, in prosecutions for bribery and graft. (sec. 10).
CLASSIFICATION OF IMMUNITY STATUTES Sworn Statement--- Before any person is admitted

1. Use Immunity--- Only prohibits the use of to the program, he shall execute a sworn
witness compelled testimony and its fruit statement describing in detail the manner the

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offense was committed and his participation testimony in bar of such prosecution Provided,
therein (sec. 11). That the following conditions concur:
Bar Exam Question 2011 (1) The information AND testimony are
(91) The prosecution moved for the discharge necessary for the conviction of the
of Romy as state witness in a robbery case it persons (members of a drug
filed against Zoilo, Amado, and him. Romy SYNDICATE) described above;
testified, consistent with the sworn statement (2) Such information and testimony are not
that he gave the prosecution. After hearing yet in the possession of the State;
Romy, the court denied the motion for his (3) Such information and testimony can be
discharge. How will denial affect Romy? (A) corroborated on its material points;
His testimony shall remain on record. (B) (4) The informant or witness has not been
Romy will be prosecuted along with Zoilo previously convicted of a crime involving
and Amado. (C) His liability, if any, will be moral turpitude, except when there is no
mitigated. other direct evidence available for the
(D) The court can convict him based on his State other than the information and
testimony. testimony of said informant or witness;
(5) The informant or witness shall strictly and
faithfully comply without delay, any
If the application is denied, said sworn statement condition or undertaking, reduced into
and other testimony given in support of said writing, lawfully imposed by the State as
application shall not be admissible in evidence. further consideration for the grant of
immunity from prosecution and
Admission to the program shall entitle such punishment;
witness to immunity from criminal prosecution for (6) The informant or witness does not appear
the offenses in which his testimony will be given to be most guilty for the offense with
and used (sec. 12) reference to which his/her information or
testimony were given; and
Failure without just cause of the witness to testify (7) There is no direct evidence available for
when lawfully required to do so, shall be the State except for the information and
prosecuted for contempt. If he testifies falsely or testimony of the said informant or witness.
evasively, he shall be liable for perjury. His
immunity shall be removed and he shall be
subjected to criminal prosecution (sec. 13). Comments: (Ucat)
Q. Point out that circumstance, if any, where a a. Even where the informant has been previously
person may be immune from prosecution of a convicted of a crime involving moral turpitude, he
crime although he is not discharged from the is still qualified to be a witness “when there is no
complaint or information to be utilized as a state other direct evidence available for the State other
witness or he is not given the benefit under RA than the information and testimony of said
6981 (Witness Protection, Security and Benefit informant or witness”.
Act).
b. (1) The meaning of the clause “shall be
Ans. Any person who has violated Secs. 7, 11, exempted from prosecution OR punishment”. It is
12, 14, 15 and 19, Art. II of RA 9165, who believed that even where the informant is not
voluntarily gives information about any violation excluded from the information or he is not
of Secs. 4, 5, 6, 8, 10, 13 and 16, Art. II of RA discharged to be utilized as a state witness,
9165 (STUDY the foregoing SECTIONS) as well should he testify for the prosecution against his
as any violation of the offenses mentioned if co-accused, even if, after the trial, he is convicted
committed by a drug syndicate, of any together with his co-accused, the penalty
information leading to the whereabouts, identifies imposed against him shall not be executed.
and arrest of all of any of the members thereof (of This is the meaning of IMMUNITY FROM
the SYNDICATE), and who willingly testifies PUNISHMENT.
against such persons as described above, shall be
EXEMPTED from prosecution or punishment for b. (2) Under the 2000 Rules of Criminal
the offense with reference to which his/her Procedure, if an accused testifies against his co-
information or testimony were given, and may accused without first being discharged to be
plead or prove the giving of such information and utilized as a State Witness, he is only a
prosecution witness without the benefit of Sec. 18,

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Rule 119 “Discharge of accused operates as made by the proponent. (Catuira vs. Court
acquittal”. However, the act of an accused in of Appeals, G.R. No. 105813, September
testifying against his co-accused is treated as a 12, 1994).
mitigating circumstance under Art. 13 (10)
“analogous” mitigating circumstance, i. e.,
analogous to a voluntary plea of guilty.
Section 6. Cross-examination; its purpose and
extent. — Upon the termination of the direct
.Section 4. Order in the examination of an
examination, the witness may be cross-examined
individual witness. — The order in which the
by the adverse party as to any matters stated in
individual witness may be examined is as follows;
the direct examination, or connected therewith,
with sufficient fullness and freedom to test his
(a) Direct examination by the proponent;
accuracy and truthfulness and freedom from
(b) Cross-examination by the opponent;
interest or bias, or the reverse, and to elicit all
(c) Re-direct examination by the proponent;
important facts bearing upon the issue. (8a)
(d) Re-cross-examination by the opponent. (4)
CROSS-EXAMINATION
Section 5. Direct examination. — Direct
It is the most reliable and effective way known to
examination is the examination-in-chief of a
test the credibility and accuracy of testimony.
witness by the party presenting him on the facts
relevant to the issue. (5a)
PURPOSES OF CROSS-EXAMINATION
Trial Practice Tips: Do not ask a question, 1. To discredit the witness;
whether on direct or cross-examination that 2. To discredit the testimony of the witness;
you do not know the answer of the witness 3. To clarify certain matters;
(Ucat). 4. To elicit information from a witness.
On cross-examination, do not ask a why, how,
or can you explain…. Scope and limits of cross-examination
1. ENGLISH RULE--- Where a witness is
called to testify to a particular fact, he
becomes a witness for all purposes and
may be fully cross-examined upon all
matters material to the issue, the
examination not being confined to the
matters inquired about in the direct
examination.
65. Immediately after the witness had been 2. AMERICAN RULE--- It restricts cross-
sworn in to testify, without any formal offer of examination to facts and circumstances
his testimony, Atty. A started asking which are connected with the matters that
questions on direct examination to the have been sated in the direct examination
witness. The court may still consider his of the witness.
testimony if:
a. the formal offer is done after the direct Under the Philippine jurisdiction, we follow the two
testimony. rules, specifically under the following instances.
b. the opposing counsel did not object.
c. the witness is an expert witness. In GENERAL, we follow the English Rule, which
d. the opposing counsel offered to stipulate allows cross-examination to elicit all important
on the testimony given. facts bearing upon the issue (sec. 6), but this does
SUGGESTED ANSWER: (b), While it is true not mean that a party by so doing is making the
that Atty. A failed to offer the questioned witness his own in accordance with section 5.
testimony when he called the witness on
the stand, the opposing counsel waived We follow the American rule as to the ACCUSED
this procedural error by failing to object at or a HOSTILE WITNESS, who may only be cross-
the appropriate time i.e., when the ground examined on matters covered by the direct
for objection became reasonably apparent examination.
the moment the witness was called to
testify without any prior offer having been DOCTRINE OF INCOMPLETE TESTIMONY

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When cross-examination cannot be done or ordered stricken from the record because
completed due to causes attributable to the party A has not been cross-examined by the
who offered the witness, the incomplete testimony defense. Consequently, it stands to reason
is rendered incompetent and should be stricken that the striking out of the A‟s testimony
from the record. altogether wiped out the required
authentication for the prosecution‟s
Where however, the prosecution witness was exhibits. They become inadmissible unless
extensively cross-examined on the material points the court, in its discretion, reopens the
and thereafter failed to appear and cannot be trial upon a valid ground and permits the
produced despite a warrant for his arrest, the rectification of the mistakes. (Spouse Dela
testimony offered may be admissible with respect Cruz vs. Papa, G.R. No. 185899, December
to the points covered by the cross-examination (P 8, 2010).
vs. Gorospe, GR NO. 51513, May, 15, 1984). ALTERNATIVE ANSWER: (b), The
uncompleted testimony of A should be
de la Paz, Jr. v. IAC, 154 SCRA 65 (1987)Where allowed to remain on the record since it
a party has had the opportunity to cross-examine was due to the fault of the defense that
a witness but failed to avail himself of it, he they were not able to exercise their right
necessarily forfeits the right to cross-examine and to cross-examine the witness. The defense
the testimony given on direct examination of the should be penalized for employing dilatory
witness will be received or allowed to remain in tactics which resulted in the witness‟
the record. Implied waiver of the right of cross- eventual incapacity to testify.
examine may take various forms, as long as the
party was given the opportunity to confront and
cross-examine an opposing witness but failed to GR: A party who voluntarily offers the testimony of
take advantage of it reasons attributable to himself
a witness in the case is bound by the testimony of
alone. Repeated absences, and/or unjustified said witness.
motions for postponement of the hearing in which
the witness is scheduled to be cross-examined
until the witness passed away is a waiver of the EXCEPTIONS:
right to cross-examine. A party is not bound when calling the following:
1. Adverse party;
Fulgado v. CA, 182 SCRA 81 (1990) The right of a 2. Hostile witness;
party to confront and cross-examine opposing 3. Unwilling witness;
witnesses in a judicial litigation, be it criminal, civil, 4. Witnesses required by law to be
or administrative, is a fundamental right which is presented (e.g. Witnesses of a Notarial
part of due process. The right is not to an actual, will).
but a mere opportunity to cross-examine. Failure
of the adverse party to move to schedule the HOSTILE WITNESS
hearing for the cross-examination of a witness A witness may be considered as unwilling or
before he died or migrated abroad (the imminence hostile only if so declared by the court upon
of which the adverse party was aware) is a waiver adequate showing of:
of such right. The burden is on the party wishing to 1. His adverse interest;
exercise the right to cross-examination, not 2. Unjustified reluctance to testify;
necessarily the plaintiff, to schedule the hearing.
3. His having misled the party into calling
him to the witness stand.
92. Witness A was examined on direct
examination by the prosecutor. The defense Section 7. Re-direct examination; its purpose
counsel however employed dilatory tactics and extent. — After the cross-examination of the
and was able to secure numerous witness has been concluded, he may be re-
examined by the party calling him, to explain or
postponements of A's cross examination. A
supplement his answers given during the cross-
suffered a stroke and became incapacitated.
examination. On re-direct-examination, questions
His uncompleted testimony may therefore be:
on matters not dealt with during the cross-
a. ordered stricken from the record.
examination, may be allowed by the court in its
b. allowed to remain in the record. discretion. (12)
c. held in abeyance until he recovers.
d. not be given any probative weight.
PURPOSE: To prevent injustice to the witness
SUGGESTED ANSWER: (a), The
and the party who has called him by affording an
uncompleted testimony of A should be

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opportunity to the witness to explain or amplify

the testimony which he has given on cross- Re-cross examination is limited to new matters
examination or to explain any apparent brought out on the re-direct examination of the
contradiction or inconsistency in his statements, witness and also on such other matters as may
an opportunity which is not ordinarily afforded be allowed the court in it’s discretion.
during his cross-examination.
The witness may be allowed to reaffirm or

explain his statements, their meaning or import
Section 9. Recalling witness. — After the
and to minimize or destroy discrediting examination of a witness by both sides has been
tendencies. concluded, the witness cannot be recalled without
leave of the court. The court will grant or withhold
NOTE: If in the exercise of discretion, the court
leave in its discretion, as the interests of justice
admits a new matter in re-examination or if may require. (14)
explanation of the answer given is necessary,
he court may permit a re-cross examination
Section 10. Leading and misleading questions.
Witness; Examination of Witnesses (1997) — A question which suggests to the witness the
a) Aside from asking a witness to explain and answer which the examining party desires is a
supplement his answer in the cross-examination, can leading question. It is not allowed, except:
the proponent ask in re-direct examination questions
on matters not dealt with during cross-examination? (a) On cross examination;
b) Aside from asking the witness on matters stated in
his re-direct examination, can the opponent in his re- (b) On preliminary matters;
cross-examination ask questions on matters not dealt
with during the re-direct? (c) When there is a difficulty in getting direct
c) After plaintiff has formally submitted his evidence, and intelligible answers from a witness who is
he realized that he had forgotten to present what he ignorant, or a child of tender years, or is of
considered an important evidence. Can he recall a feeble mind, or a deaf-mute;
witness?
SUGGESTED ANSWER: (d) Of an unwilling or hostile witness; or
(a) Yes, on redirect examination, questions on matters
not dealt with during the cross-examination may be (e) Of a witness who is an adverse party or an
allowed by the court in its discretion. (Sec. 7 of Rule 132). officer, director, or managing agent of a public
(b) Yes, the opponent in his re-cross-examination may or private corporation or of a partnership or
also ask questions on such other matters as may be association which is an adverse party.
allowed by the court in its discretion. (Sec. 8. Rule 132).
(c) Yes, after formally submitting his evidence, the A misleading question is one which assumes as
plaintiff can recall a witness with leave of court. The true a fact not yet testified to by the witness, or
court may grant or withhold leave in its discretion as contrary to that which he has previously stated. It
the interests of justice may require. (Sec. 9. Rule 132). is not allowed. (5a, 6a, and 8a)
People v. Salomon, 229 SCRA 403 (1994) A

Section 8. Re-cross-examination. — Upon the mental retardate is not for this reason alone
conclusion of the re-direct examination, the disqualified from being a witness. As in the case of
adverse party may re-cross-examine the witness other witnesses, acceptance of his testimony
on matters stated in his re-direct examination, and depends on its nature and credibility or, otherwise
also on such other matters as may be allowed by put, the quality of his perceptions and the manner
the court in its discretion. (13) he can make them known to the court. In the case
before us, the trial court noted that although
Sylvia's speech was slurred and it was necessary
PURPOSE: It is to overcome the other party’s
at times to ask her leading questions, "her
attempt to rehabilitate a witness or to rebut
testimony was positive, clear, plain, coherent and
damaging evidence brought out on re-direct
credible." Her mental condition did not vitiate her
examination.
credibility.
It is not a matter of right on re-cross examination
for counsel to touch matters not brought on the REASON FOR ALLOWING LEADING
re-direct examination of the witness. QUESTIONS ON CROSS-EXAMINATION

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The witness is not the cross-examining party’s OTHER MODES OF IMPEACHMENT aside fro
witness. He is expected to be adverse or hostile to sec. 11:
the cross-examiner. He is not expected to 1. by involving him on cross-examination in
cooperate. contradiction;
2. by showing the impossibility or
For exception no. 3 and 4 improbability of his testimony;
The party producing the said witness may 3. by proving action or conduct of the
interrogate him by leading questions and witness inconsistent with his testimony;
contradict him in all respect as if he had been 4. by showing bias, interest or hostile feeling
called by the adverse party. There is no need of a against the adverse party.
preliminary showing of hostility before leading
questions can be asked. NOTE: The impeachment is limited to bad
reputation and the bad reputation must be for lack
GR: Misleading Questions are not allowed. of veracity and does not extend to bad reputation
EXCEPTION: When waived (no objection made); for lack of morals (E.g. You may discredit a
witness because he is a well-known liar but not if
Only one counsel should be allowed to examine a he is a well-known womanizer.
witness in a single stage. However, the other
counsel may make objection to the testimony. The fact that a witness has been impeach does
not mean that his testimony will be stricken or
REASONS: disregarded.
1. To protect the witness from undue and
confusing interrogation; CONTRADICTORY EVIDENCE
2. To secure system and brevity by giving It refers to other testimony of the same witness, or
the control of the interrogation to a single other evidence presented by him in the same
hand. case, but not the testimony of another witness.
While prior inconsistent statements refer to
When is a question Preliminary: statements oral or documentary, made by the
It is when the question does not touch on any of witness sought to be impeached on occasion
the issues. other than the trial which he is testifying.
NOTE: A question that merely suggest a subject

without suggesting an answer or a specific thing is Section 12. Party may not impeach his own
not a leading question. witness. — Except with respect to witnesses
referred to in paragraphs (d) and (e) of Section 10,
Section 11. Impeachment of adverse party's the party producing a witness is not allowed to
witness. — A witness may be impeached by the impeach his credibility.
party against whom he was called,
A witness may be considered as unwilling or
1. by contradictory evidence, hostile only if so declared by the court upon
2. by evidence that his general reputation for adequate showing of his adverse interest,
truth, honesty, or integrity is bad, or unjustified reluctance to testify, or his having
3. by evidence that he has made at other misled the party into calling him to the witness
times statements inconsistent with his stand.
present, testimony,
The unwilling or hostile witness so declared, or the
but not by evidence of particular wrongful acts, witness who is an adverse party, may be
except that it may be shown by the examination of impeached by the party presenting him in all
the witness, or the record of the judgment, that he respects as if he had been called by the adverse
has been convicted of an offense. (15) party, except by evidence of his bad character. He
may also be impeached and cross-examined by
NOTE: To impeach a witness means to discredit the adverse party, but such cross-examination
the witness’ testimony. It is a fundamental right on must only be on the subject matter of his
cross-examination. Since the witness’ credibility is examination-in-chief. (6a, 7a)
always at issue, it is never beyond the permissible
scope of cross-examination. Reason: By calling the witness, the party certifies
to his credibility.

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Exceptions to sec. 12: contradictory statements are not admissible to

impeach a witness.
1. Witnesses required by law;
In the probate of a will, if the will is The rule that the attention of the witness be called
contested, the law requires that to the time, place and circumstances, does not
the proponent should present all apply where the impeaching evidence is in writing.
the attesting witnesses to the will The writing must be shown to the witness so that
if they are still alive. If any or all of he may read it or it may be read to him. He must
them testify against the due be asked if wrote it or signed it and if he admits
execution of the will or do not this, his attention must be called to the
remember having attested to it or inconsistencies.
are otherwise of doubtful
credibility, the proponent can start REASONS FOR LAYING THE PREDICATE
impeaching these witnesses. 1. To avoid unfair surprise to the adverse
2. Witness is an adverse party; party;
3. Witness is an unwilling or hostile witness. 2. To save time, as an admission of the
witness may take the extrinsic proof
REASON: Without the exceptions, the party unnecessary; and
calling the witness will be at the mercy of a 3. To give the witness, in fairness to him, a
TREACHEROUS witness. chance to explain the discrepancy.
Section 13. How witness impeached by It shall be the duty of the party trying to impugn
evidence of inconsistent statements. — Before the testimony of a witness by means of prior or for
a witness can be impeached by evidence that he that matter, subsequent inconsistent statements,
has made at other times statements inconsistent whether oral or in writing, to give the witness a
with his present testimony, the statements must chance to reconcile his conflicting declaration
be related to him, with the circumstances of the such that it is only when no reasonable
times and places and the persons present, and he explanation is given by him that he shall be
must be asked whether he made such statements, deemed impeached.
and if so, allowed to explain them. If the
statements be in writing they must be shown to EFFECT OF WITNESS DENIAL OF MAKING
the witness before any question is put to him STATEMENT
concerning them. (16) If the witness denies making the prior statement or
says that he does not remember making it, the
THE PROCESS OF IMPEACHMENT other party should call in rebuttal a witness to
TWO different stages: prove that such statement has in fact been made
(Herrera).
1. The facts discrediting the witness or his
testimony may be elicited from the witness
Prior inconsistent statement of a witness which is
upon cross-examination;
2. The facts discrediting the witness are admissible as independent evidence may be
shown without laying the predicate (E. g. Where
proved by extrinsic evidence( the adverse
said testimony contains admission against
party in rebuttal proves by another witness
interest. The admission is presented as original
or documentary evidence the facts
independent evidence. This must be offered in
discrediting the testimony of the witness
evidence-in- chief and not on rebuttal).
under attack.
A witness is impeached by prior inconsistent LAYING THE LAYING THE

statements by “laying the predicate”: PREDICATE FOUNDATION OR
1. By confronting him with such statements, BASIS
with the circumstances under which they Refers to a situation
were made; Refers only to where an evidence
2. By asking him whether he made such impeachment of a which is otherwise
statements; witness through prior incompetent will be
3. By giving him the chance to explain the inconsistent statement introduced in evidence
inconsistency. because it falls under
the exceptions to the
It is universally accepted that unless a ground is rule on exclusion.
thus laid upon cross-examination, evidence of

________________________________________________________________________________________________
Note: Under the Best Evidence Rule, if a party he knew that it was correctly
desires to introduce secondary evidence, he must recorded.
first prove that the writing was duly executed and
that the original has been lost or destroyed. NOTE: The evidence is still testimonial in
Without first laying the foundation, secondary character. The memorandum will not be
evidence will not be admitted by the court. considered as documentary evidence.
Witness; Examination of Witnesses (2002) B. PAST RECOLLECTION RECORDED

Is this question on direct examination objectionable: REVIVAL OF PAST RECOLLECTION
“What happened on July 12, 1999”? Why? (2%) A witness may also testify from
SUGGESTED ANSWER: such writing or record, though he
The question is objectionable because it has no basis, retains no recollection of
unless before the question is asked the proper basis is particular facts, if he is able to
laid. swear that the writing or record
correctly stated the transaction
Section 14. Evidence of good character of when made, but such evidence
witness. — Evidence of the good character of a must be received with caution.
witness is not admissible until such character has
been impeached. (17) NOTE: Since there is complete loss of recollection
or memory on the part of the witness, then it is the
Section 15. Exclusion and separation of memorandum itself that will serve as the evidence.
witnesses. — On any trial or hearing, the judge It will now be considered documentary evidence.
may exclude from the court any witness not at the
time under examination, so that he may not hear PRESENT PAST
the testimony of other witnesses. The judge may RECOLLECTION RECOLLECTION
also cause witnesses to be kept separate and to REVIVED RECORDED
be prevented from conversing with one another Memory is obscure but Recollection is zero
until all shall have been examined. (18) there is still memory
The main evidence is The main evidence is
the testimony of the the memorandum
Section 16. When witness may refer to
witness
memorandum. — A witness may be allowed to
refresh his memory respecting a fact, by anything The witness simply Witness must swear
written or recorded by himself or under his testifies that the that the writing correctly
direction at the time when the fact occurred, or memorandum is states the transaction
immediately thereafter, or at any other time when correctly written by him
the fact was fresh in his memory and knew that or under his direction;
the same was correctly written or recorded; but in no need to swear
such case the writing or record must be produced
and may be inspected by the adverse party, who The memorandum from which the witness may be
may, if he chooses, cross examine the witness permitted to refresh his memory need not be an
upon it, and may read it in evidence. So, also, a original writing. It is sufficient if it is shown that the
witness may testify from such writing or record, witness knows the copy to be a true one, and his
though he retain no recollection of the particular memory refreshed thereby enables him to testify
facts, if he is able to swear that the writing or from his own recollection of the facts, independent
record correctly stated the transaction when of his confidence of the accuracy of the copy.
made; but such evidence must be received with
caution. (10a) Memorandum (1996)
X states on direct examination that he once knew the
facts being asked but he cannot recall them now.
A. PRESENT RECOLLECTION REVIVED
When handed a written record of the facts he testifies
REVIVAL OF PRESENT TESTIMONY
that the facts are correctly stated, but that he has never
A witness may be allowed to
seen the writing before. Is the writing admissible as
refresh his memory respecting a
past recollection recorded? Explain,
fact, by anything written or SUGGESTED ANSWER:
recorded by himself or under his No, because for the written record to be admissible as
direction at the time when the fact past recollection recorded. It must have been written
occurred, or immediately or recorded by X or under his direction at the time
thereafter, or later so long as the when the fact occurred, or immediately thereafter, or
fact was fresh in his memory and
at any other time when the fact was fresh in his
________________________________________________________________________________________________
memory and he knew that the same was correctly Note: A public document can be received in
written or recorded. (Sec. 16 of Rule 132) But in this case X evidence without giving any proof of their due
has never seen the writing before. execution and authenticity.
Section 17. When part of transaction, writing or Note: Defective notarization does not necessarily
record given in evidence, the remainder, the nullify or render void ab initio the parties’
remainder admissible. — When part of an act, transaction, nor ipso facto invalidate the Deed of
declaration, conversation, writing or record is Sale (Abellana vs. P., GR No. 174654, Aug. 17,
given in evidence by one party, the whole of the 2011).
same subject may be inquired into by the other,
and when a detached act, declaration, PUBLIC PRIVATE
conversation, writing or record is given in WRITING WRITING
evidence, any other act, declaration, conversation, A public A private
writing or record necessary to its understanding document is writing must be
may also be given in evidence. (11a) admissible in proved relative
As to
authenticity evidence to its due
Note: this section enunciates the doctrine of without further execution and
indivisibility of evidence. proof of its genuineness
genuineness before it may
Section 18. Right to inspect writing shown to and due be received in
witness. — Whenever a writing is shown to a execution evidence
witness, it may be inspected by the adverse party. A public Private writing
(9a) instrument is binds only the
As to persons evidence parties who
B. AUTHENTICATION AND PROOF OF bound against 3rd executed it or
DOCUMENTS persons, of the their privies, in
fact which so far as due
gave rise to its execution and
AUTHENTICATION due execution date of the
It means the process of PROVING the due and to the date document are
execution and genuineness of the document. of the latter concern
Certain
DOCUMENT
transactions
It is a deed, instrument, or other duly authorized
As to validity must be in
paper by which something is proved, evidenced or
of certain public
set forth.
transaction instrument,
other wise they
Section 19. Classes of Documents. — For the will not be
purpose of their presentation evidence, given any
documents are either public or private. validity
Public documents are: Section 20. Proof of private document. —

Before any private document offered as authentic
(a) The written official acts, or records of is received in evidence, its due execution and
the official acts of the sovereign authority, authenticity must be proved either:
official bodies and tribunals, and public
officers, whether of the Philippines, or of a (a) By anyone who saw the document
foreign country; executed or written; or
(b) Documents acknowledged before a (b) By evidence of the genuineness of the

notary public except last wills and signature or handwriting of the maker.
testaments; and
Any other private document need only be
(c) Public records, kept in the Philippines, identified as that which it is claimed to be. (21a)
or private documents required by law to
be entered therein.
All other writings are private. (20a)
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66. A private document may be considered as In addition to the modes of authenticating a private
evidence when it is sequentially: document under section 20, American
a. marked, identified, authenticated. jurisprudence also gives the Doctrine of Self-
b. identified, marked and offered in evidence. Authentication, that is, where the facts in writing
c. marked, identified, authenticated and could only have been known by the writer; and
offered in evidence. also the rule of authentication by adverse
d. marked, authenticated and offered in party, that is , where the reply of the adverse
evidence. party refers to and affirms the sending to him and
SUGGESTED ANSWER: his receipt of the letter in question, a copy of which
(c), Before any private document is offered the proponent is offering as evidence (Regalado).
as authentic is received in evidence, its
due execution and authenticity must be
proved. (Rule 132, Sec. 20). The private Section 21. When evidence of authenticity of
document must be marked during the pre- private document not necessary. — Where a
marking of exhibits. It must be identified private document is more than thirty years old, is
and authenticated by a witness, and produced from the custody in which it would
thereafter offered, as the court shall not naturally be found if genuine, and is unblemished
consider any evidence which has not been by any alterations or circumstances of suspicion,
formally offered. (Rule 132, Sec. 34). In no other evidence of its authenticity need be
addition, the private document must also given. (22a)
be admitted by the court in order to be
considered as evidence. NOTE: This is the ancient document rule.
An ancient document is said to be in proper

custody if it is in the place in which and under the
care of the person with whom it would naturally
Buñag v. CA, 158 SCRA 299 (1988) The
be.
authenticity and due execution of a private
document is not proven by testimony that the party REASON: The fact of it s coming from the natural
thumbmarked it. The circumstances of the
and proper place tends to remove presumptions of
presence of the witness during the execution must
fraud and strengthen the belief of its genuineness.
be related. There must be proof that the party
understood it, considering he was illiterate (implied
Bartolome v. IAC, 183 SCRA 102 (1990) Where
from the thumbmarking). There must be showing
the offeror’s witness testified that the document
that the document was duly read, explained and
had a missing 4th page, the document can not
translated to the illiterate party.
qualify as an ancient document because it is
blemished by alteration or circumstance of
NOTE: The following are private writings which suspicion. An incomplete document is akin to an
may be admitted in evidence without previous altered document, more so if the missing page
proof of its authenticity and due execution: contains the signature of the parties to the
document. Proof of the document’s authenticity
1. When the genuineness and due execution and due execution is therefore necessary.
of the document is admitted by the
adverse party; By merely producing the document, it establishes
a. Failure to deny under oath an prima facie it own authentication. The burden then
actionable document; shifts to the adverse party to prove that the
b. Request for admission is not document is not what it purports to be or other
answered. wise not authentic.
2. When such genuineness and due

execution is immaterial to the issue;
Section 22. How genuineness of handwriting
3. When the document is an ANCIENT
proved. — The handwriting of a person may be
DOCUMENT (sec. 21).
proved by any witness who believes it to be the
4. When it is offered as not authentic.
handwriting of such person because he has seen
the person write, or has seen writing purporting to
NOTE: The ancient document rule applies only if
be his upon which the witness has acted or been
there are no other witnesses to determine charged, and has thus acquired knowledge of the
authenticity.
handwriting of such person. Evidence respecting

________________________________________________________________________________________________
the handwriting may also be given by a any purpose, may be evidenced by an official
comparison, made by the witness or the court, publication thereof or by a copy attested by the
with writings admitted or treated as genuine by the officer having the legal custody of the record, or by
party against whom the evidence is offered, or his deputy, and accompanied, if the record is not
proved to be genuine to the satisfaction of the kept in the Philippines, with a certificate that such
judge. (23a) officer has the custody. If the office in which the
record is kept is in foreign country, the certificate
METHODS OF AUTHENTICATION: may be made by a secretary of the embassy or
1. Testimony of the purported writer; legation, consul general, consul, vice consul, or
2. The testimony of a witness who has seen consular agent or by any officer in the foreign
the writer sign his name or actually made service of the Philippines stationed in the foreign
the writing whether the witness attested country in which the record is kept, and
the instrument or not; authenticated by the seal of his office. (25a)
3. The testimony of a witness who is familiar
with the hand-writing. Thus, under this PROOF OF OFFICIAL RECORD
rule, the genuineness of a handwriting
may be proved: 1. Domestic Record—it may be evidenced by:
a. By any witness who believes it to a. An official publication; or
be the hand writing of such b. A copy thereof attested by the officer
person because he has seen the having the custody of the record or his
person write or has seen writing deputy, with a certificate that such officer
purporting to be his upon which has the custody.
the witness has acted or been
charged; 2. Foreign Record—it may be evidenced by:
b. By comparison made by the a. An official publication; or
witness or the court, with the b. A copy thereof attested by the officer
writings admitted or treated as having the custody of the record or his
genuine by the party, against deputy, accompanied by a certificate of
whom the evidence is offered, or the secretary of the embassy or legation,
proved to be genuine to the consul general, consul, vice-consul or
satisfaction of the judge. consular agent or foreign service officer
and with a seal of his office.
Handwriting experts not mandatory
Handwriting experts while probably useful are not Pacific Asia Overseas v. NLRC, 161 SCRA 122
indispensable in examining or comparing (1988) To be enforceable, the foreign judgment
handwriting. must be proven as a public document of a written
official act or record of an act of an official body or
tribunal of a foreign country. The offeror must
Weight of expert testimony submit an attestation issued by the proper foreign
It depends upon the assistance he may afford in official having legal custody of the original
pointing out the distinguishing marks, judgment that the copy is a faithful reproduction of
characteristics and discrepancies in and between the original, which attestation must be
the genuine and false specimens of writings which authenticated by a Philippine Consular officer
would ordinarily escape notice or detection by an having jurisdiction in that country.
untrained observer.
Zalamea v. CA, 228 SCRA 23 (1993) Foreign laws
Section 23. Public documents as evidence. — do not prove themselves nor can the courts take
Documents consisting of entries in public records judicial notice of them. Like any other fact, they
made in the performance of a duty by a public must be alleged and proved. Written law may be
officer are prima facie evidence of the facts therein evidenced by an official publication thereof or by a
stated. All other public documents are evidence, copy attested by the officer having the legal
even against a third person, of the fact which gave custody of the record, or by his deputy, and
rise to their execution and of the date of the latter. accompanied with a certificate that such officer
(24a) has custody. The certificate may be made by a
secretary of an embassy or legation, consul
general, consul, vice-consul, or consular agent or
Section 24. Proof of official record. — The
by any officer in the foreign service of the
record of public documents referred to in
Philippines stationed in the foreign country in
paragraph (a) of Section 19, when admissible for
which the record is kept, and authenticated by the

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seal of his office. Mere testimony of a witness is NOTE: GR: A document acknowledged before a
not sufficient to prove foreign law. notary public becomes a public instrument.
Hence, its execution and authenticity need not
Section 25. What attestation of copy must be proved as in a private writing.
state. — Whenever a copy of a document or
record is attested for the purpose of evidence, the EXCEPTION: Notarial Wills.
attestation must state, in substance, that the copy
is a correct copy of the original, or a specific part Section 31. Alteration in document, how to
thereof, as the case may be. The attestation must explain. — The party producing a document as
be under the official seal of the attesting officer, if genuine which has been altered and appears to
there be any, or if he be the clerk of a court having have been altered after its execution, in a part
a seal, under the seal of such court. (26a) material to the question in dispute, must account
for the alteration. He may show that:
Section 26. Irremovability of public record. —
Any public record, an official copy of which is 1. the alteration was made by another,
admissible in evidence, must not be removed from without his concurrence, or
the office in which it is kept, except upon order of 2. was made with the consent of the parties
a court where the inspection of the record is affected by it, or
essential to the just determination of a pending 3. was otherwise properly or innocently
case. (27a) made, or
4. that the alteration did not change the
Section 27. Public record of a private meaning or language of the instrument.
document. — An authorized public record of a
private document may be proved by the original If he fails to do that, the document shall not be
record, or by a copy thereof, attested by the legal admissible in evidence. (32a)
custodian of the record, with an appropriate
certificate that such officer has the custody. (28a) Section 32. Seal. — There shall be no difference
between sealed and unsealed private documents
Section 28. Proof of lack of record. — A written insofar as their admissibility as evidence is
statement signed by an officer having the custody concerned. (33a)
of an official record or by his deputy that after
diligent search no record or entry of a specified Section 33. Documentary evidence in an
tenor is found to exist in the records of his office, unofficial language. — Documents written in an
accompanied by a certificate as above provided, is unofficial language shall not be admitted as
admissible as evidence that the records of his evidence, unless accompanied with a translation
office contain no such record or entry. (29) into English or Filipino. To avoid interruption of
proceedings, parties or their attorneys are directed
Section 29. How judicial record impeached. — to have such translation prepared before trial.
Any judicial record may be impeached by (34a)
evidence of:
Pacific Asia Overseas v. NLRC, 161 SCRA 122
(a) want of jurisdiction in the court or judicial (1988) A document written in an unofficial
officer, language should be translated into either English
or Filipino. The translator should be identified
(b) collusion between the parties, or either as an official interpreter of the court, or as a
competent translator of both languages. The
translation should be either sworn to as an
(c) fraud in the party offering the record, in
accurate translation of the original, or agreed upon
respect to the proceedings. (30a)
by the parties.
Section 30. Proof of notarial documents. —
People v. Monleon, 74 SCRA 263 (1976)
Every instrument duly acknowledged or proved
Affidavits written in an unofficial language and not
and certified as provided by law, may be
accompanied with a translation are inadmissible in
presented in evidence without further proof, the
evidence.
certificate of acknowledgment being prima facie
evidence of the execution of the instrument or
document involved. (31a) C. OFFER AND OBJECTION

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Formal offer of evidence Philippine Bank of Commerce v. CA, 195 SCRA

Objections: grounds—immaterial or irrelevant 567 (1991) Where the genuineness and due
Sustained: evidence Overruled: evidence execution of documents of an instrument attached
offered will not be will be allowed to be to a complaint are deemed admitted by failure to
allowed to be presented presented in court specifically deny it under oath, such instruments
in court are considered as evidence although they were
Remedy of offeror: Presentation of not formally offered.
tender of excluded evidence offered
evidence Tabuena v. CA, 196 SCRA 650 (1991) Mere fact
Objections to presentation on grounds of that a document is marked as an exhibit does not
general or specific grounds mean it has been offered as evidence. Marking at
Sustained: question Overruled: questions the pre-trial was only for the purpose of identifying
posed will not be will be allowed them at that time. However, if an exhibit has been
permitted. E.g. duly identified by testimony duly recorded and has
misleading, revise itself been incorporated into the records (i.e.
question, or tender of recital of the contents of the exhibit).
excluded evidence
Section 35. When to make offer. — As regards
the testimony of a witness, the offer must be made
Section 34. Offer of evidence. — The court shall at the time the witness is called to testify.
consider no evidence which has not been formally
offered. The purpose for which the evidence is Documentary and object evidence shall be offered
offered must be specified. (35) after the presentation of a party's testimonial
evidence. Such offer shall be done orally unless
allowed by the court to be done in writing. (n)
Why purpose of offer must be specified Offer of Evidence (1997)

A trial court cannot take into consideration in deciding
a case an evidence that has not been "formally
To determine whether that piece of
offered". When are the following pieces of evidence
evidence should be admitted or not.
formally offered?
Because such evidence may be
admissible for several purposes under the (a) Testimonial evidence
doctrine of multiple admissibility, or may (b) Documentary evidence
be admissible for only one purpose and (c) Object evidence
SUGGESTED ANSWER:
not for another, otherwise the other party
(a) Testimonial evidence is formally offered at the time
cannot interpose the proper objection.
the witness is called to testify. (Rule 132. Sec. 35, first par.).
Evidence submitted for one purpose may
(b) Documentary evidence is formally offered after the
not be considered for other purpose by
presentation of the testimonial evidence. (Rule 132, Sec.
the judge.
35, second par.).
(c) The same is true with object evidence. It is also
NOTE: Where the evidence is inadmissible for the
offered after the presentation of the testimonial
purpose stated in the offer, it must be rejected,
evidence.
though the same may be admissible for another
purpose. The reason is that the adverse party is
Offer of Evidence; Testimonial & Documentary (1994)
prevented from objecting to the admissibility
thereof on grounds other than those available to
What is the difference between an offer of testimonial
meet the stated purpose. evidence and an offer of documentary evidence?
SUGGESTED ANSWER:
An offer of testimonial evidence is made at the time he
In the case of Mata Vda. De Onate vs. CA, the witness is called to testify, while an offer of
court allowed evidence not formally offered to be
documentary evidence is made after the presentation
admitted and considered by the trial court
of a party’s testimonial evidence. (Sec. 35, Rule 132).
provided the following requirements are present:
1. The same must have been duly identified Offer of Evidence; Failure to Offer (2007)
by testimony duly recorded; No.VII. (b) G files a complaint for recovery of
2. The same must have been incorporated to possession and damages against F. In the
the records of the case.
course of the trial, G marked his evidence but
his counsel failed to file a formal offer of

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evidence. F then presented in evidence tax STAGES IN THE PRESENTATION OF

declarations in the name of his father to DOCUMENTARY
establish that his father is a co-owner of the
property. The court ruled in favor of F, saying 1. IDENTIFICATION
that G failed to prove sole ownership of the By identification is meant proof that the
property in the face of F’s evidence. Was the document being presented is the same
court correct? Explain briefly. (5%) one offered by the witness in his
SUGGESTED ANSWER: No, the trial court testimony.
is not correct in ruling in favor of F. Tax
Declaration are not by themselves 2. MARKING
evidence of ownership; hence, they are All exhibits should be marked to facilitate
not sufficient evidence to warrant a their identification. The marking may be
judgment that F‟s father is a co-owner of done at the pre-trial or during trial.
the property. Plaintiff‟s failure to make a
formal offer of his evidence may mean a The plaintiff and the prosecution use
failure to prove the allegations in his capital letters (A, B, C, etc) and the
complaint. However, it does not accused use Arabic numbers (1, 2, 3, etc).
necessarily result in a judgment awarding
co-ownership to the defendant. While the If the exhibit is presented in connection
court may not consider evidence which is with an affidavit, like in support or in
not offered, the failure to make a formal opposition to a motion to dismiss, the
offer of evidence is a technical lapse in words “motion to dismiss”, should be
added after the letter or number.
procedure that may not be allowed to
defeat substantive justice. In the interest
3. AUTHENTICATION
of justice, the court can require G to offer
The proof of the document’s due
his evidence and specify the purpose
execution and genuineness if the purpose
thereof.
is to show that it is genuine or the proof of
its forgery, if the purpose is to show that
the document is a forgery.
IMPLIED OFFER 4. INSPECTION
Every time a question is asked of a witness, there Under section 18, Rule 132, whenever a
is an implies automatic offer of the evidence writing is shown to a witness, it may be
sought to be elicited by the question, if there is inspected by the adverse party.
any objection to the question, the same must be
raised immediately; otherwise there is a waiver. 5. FORMAL OFFER
After the termination of the testimonial
Therefore, oral evidence is always being offered evidence, the proponent will then make a
twice: formal offer and state the purpose for
1. Before the witness testifies; which the document is presented.
2. Every time a question is asked of him.
6. OBJECTIONS
PROCEDURE BEFORE DOCUMENTARY AND The objection to the introduction or
OBJECT EVIDENCE CAN BE CONSIDERED BY presentation of the document shall be
THE COURT: made when it is formally offered in
1. Marking; evidence.
2. Identification;
3. Authentication; There is a distinction between identification of
4. Formal offer; documentary evidence and formal offer of
5. If the evidence is excluded, an offer of documentary evidence as an exhibit.
proof (tender of excluded evidence). 1. In identification of documentary
evidence, the same is done in the course
Authentication and identification can be dispensed of the trial and is accompanied by the
with if there is a stipulation on the due execution marking of the evidence as an exhibit.
and genuineness of a private document. 2. In formal offer of evidence as an
exhibit, the same is done when the party
has presented his testimonial evidence.

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NOTE: The mere fact that a particular document is When the evidence is excluded upon a mere
identified and marked as an exhibit does not mean general objection, the ruling will be upheld, if any
that it will be or has been offered as part of the ground in fact existed for the exclusion. It will be
evidence of the party. The party may decide to assumed, in the absence of any request by the
formally offer it if it believes that this will advance opposing party or the court to make the objection
his cause, or it may decide not to do so at all. definite, that the ruling was placed upon the right
ground.
Section 36. Objection. — Objection to evidence
offered orally must be made immediately after the Catuira v. CA, 236 SCRA 398 (1994) Failure to
offer is made. object upon the time a witness is called to testify
on the ground that there was no formal offer of the
testimony is a waiver of the objection. Objection
Objection to a question propounded in the course
on such ground after the witness has testified is
of the oral examination of a witness shall be made
too late.
as soon as the grounds therefor shall become
reasonably apparent.
Interpacific Transit, Inc. v. Aviles, 186 SCRA 385
(1990) Objection to documentary evidence must
An offer of evidence in writing shall be objected to be made at the time it is formally offered (i.e. when
within three (3) days after notice of the unless a the party rests its case) as an exhibit and not
different period is allowed by the court. before. Objection prior to that time (e.g.
identification of the evidence) is premature. Mere
In any case, the grounds for the objections must identification and marking is not equivalent to a
be specified. (36a) formal offer of the evidence. A party may decide to
not offer evidence already identified and marked.
CLASSIFICATION OF OBJECTIONS:
1. General Objection—It does not go Admissibility; Objections (1997)
beyond declaring that the evidence as What are the two kinds of objections? Explain each
immaterial, incompetent, irrelevant or briefly. Given an example of each.
inadmissible; in other words, it does not SUGGESTED ANSWER:
specify the specific grounds for objection Two kinds of objections are: (1) the evidence being
(also known as a Broadside Objection). presented is not relevant to the issue; and (2) the
2. Specific Objection—It states why or how evidence is incompetent or excluded by the law or the
the evidence is irrelevant or incompetent. rules, (Sec. 3, Rule 138). An example of the first is when
Example: Objection to the question being the prosecution offers as evidence the alleged offer of
leading. an Insurance company to pay for the damages suffered
by the victim in a homicide case. (See 1997 No. 14).
Requirements to exclude inadmissible Examples of the second are evidence obtained in
evidence: violation of the Constitutional prohibition against
1. One has to object to the evidence; unreasonable searches and seizures and confessions
2. The objection must be timely made; and admissions in violation of the rights of a person
3. The grounds for the objection must be under custodial Investigation.
specified. ALTERNATIVE ANSWERS:
1) Specific objections: Example: parol evidence and
Reasons why objection must be specified: best evidence rule General Objections: Example:
1. So that the judge may understand the continuing objections (Sec. 37 of Rule 132).
question raised and that the adversary 2) The two kinds of objections are: (1) objection to a
may have an opportunity to remedy the question propounded in the course of the oral
defect, if possible. examination of the witness and (2) objection to an
2. To make a proper record for the reviewing offer of evidence in writing. Objection to a question
court in case of appeal. propounded in the course of the oral examination of a
witness shall be made as soon as the grounds therefor
NOTE: As a rule, failure to specify the grounds for shall become reasonably apparent otherwise, it is
the objection is in effect a waiver of the objection. waived. An offer of objection in writing shall be made
Every other objection which is not particularly within three (3) days after notice of the offer, unless a
stated is to be considered abandoned, except different period is allowed by the court. In both
where the evidence could not have been legally instances the grounds for objection must be specified.
admitted for any purpose whatever. An example of the first is when the witness is being
cross-examined and the cross examination is on a

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matter not relevant. An example of the second is that On proper motion, the court may also order the
the evidence offered is not the best evidence. striking out of answers which are incompetent,
irrelevant, or otherwise improper. (n)
Section 37. When repetition of objection
unnecessary. — When it becomes reasonably MODES OF EXCLUDING INADMISSIBLE
apparent in the course of the examination of a EVIDNCE
witness that the question being propounded are of 1. Objection when the evidence is formally
the same class as those to which objection has offered;
been made, whether such objection was sustained 2. Motion to strike out;
or overruled, it shall not be necessary to repeat a. When the witness prematurely
the objection, it being sufficient for the adverse answered the question before the
party to record his continuing objection to such adverse party had the opportunity
class of questions. (37a) to voice out fully its objection;
b. When the answer is
NOTE: This is known as the Rule on Continuing unresponsive,
Objections c. When answer is incompetent.
Irrelevant, or improper;
d. Uncompleted testimonies where
Section 38. Ruling. — The ruling of the court must
there is no opportunity for cross-
be given immediately after the objection is made,
examination;
unless the court desires to take a reasonable time
e. Conditionally admitted evidence
to inform itself on the question presented; but the
not later substantiated.
ruling shall always be made during the trial and at
such time as will give the party against whom it is
made an opportunity to meet the situation
presented by the ruling.
The reason for sustaining or overruling an (42) During trial, plaintiff offered evidence
objection need not be stated. However, if the that appeared irrelevant at that time but he
objection is based on two or more grounds, a said he was eventually going to relate to the
ruling sustaining the objection on one or some of issue in the case by some future evidence.
them must specify the ground or grounds relied The defendant objected. Should the trial
upon. (38a) court reject the evidence in question on
ground of irrelevance? (A) No, it should
Hearsay Evidence; Objection (2012) No.VII. reserve its ruling until the relevance is
(a) Counsel A objected to a question posed by shown. (B) Yes, since the plaintiff could
opposing Counsel B on the grounds that it anyway subsequently present the evidence
was hearsay and it assumed a fact not yet anew. (C) Yes, since irrelevant evidence is not
established. The judge banged his gavel and admissible. (D) No, it should admit it
ruled by saying "Objection Sustained". Can conditionally until its relevance is shown.
Counsel 8 ask for a reconsideration of the
ruling? Why? (5%) SUGGESTED ANSWER: Section 40. Tender of excluded evidence. — If
documents or things offered in evidence are
Yes, Counsel B may ask the Judge to excluded by the court, the offeror may have the
specify the ground‟s relied upon for same attached to or made part of the record. If the
sustaining the objection and thereafter evidence excluded is oral, the offeror may state for
the record the name and other personal
move its reconsideration thereof. (Rule
circumstances of the witness and the substance of
132, Sec.38, Rules of Court).
the proposed testimony. (n)
NOTE: When an attorney is not allowed by the

court to present testimony which he thinks is
Section 39. Striking out answer. — Should a competent, material and necessary to prove his
witness answer the question before the adverse case, he must make an offer of proof. This is the
party had the opportunity to voice fully its objection method of properly preserving the record to the
to the same, and such objection is found to be end that the question may be saved for the
meritorious, the court shall sustain the objection purpose of review (Caraig, P.337).
and order the answer given to be stricken off the
record. PURPOSES:

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1. To inform the court what is expected to be 4. SUBSTANTIAL EVIDENCE

proved;
2. So that the appellate court may determine Required to reach a conclusion in an
from the record whether the proposed administrative proceedings or to establish
evidence is competent. a fact before administrative/quasi-judicial
bodies.
OFFER OF Such relevant evidence as a reasonable
PROOF/TENDER OF OFFER OF PROOF mind might accept as adequate to support
EXCLUDED a conclusion.
EVIDENCE
It refers to testimonial, Administrative Proceedings (2005)
documentary or object Regional Director AG of the Department of Public
Only resorted to if evidence that are Works and Highways was charged with violation of
admission is refused by presented or offered in Section 3(e) of Republic Act No. 3019 in the Office of
the court for purposes court by a party so that the Ombudsman. An administrative charge for gross
of review on appeal the court can consider misconduct arising from the transaction subject matter
his evidence when it of said criminal case was filed against him in the same
comes to the office. The Ombudsman assigned a team composed of
preparation of the investigators from the Office of the Special Prosecutor
decision. and from the Office of the Deputy Ombudsman for
the Military to conduct a joint investigation of the
criminal case and the administrative case. The team of
investigators recommended to the Ombudsman that
RULE 133 AG be preventively suspended for a period not
exceeding six months on its finding that the evidence
Weight and Sufficiency of Evidence of guilt is strong. The Ombudsman issued the said
order as recommended by the investigators. AG
NOTES: HEIRARCHY OF EVIDENTIARY moved to reconsider the order on the following
VALUES grounds: (a) the Office of the Special Prosecutor had
exclusive authority to conduct a preliminary
1. PROOF BEYOND REASONABLE DOUBT investigation of the criminal case; (b) the order for his
preventive suspension was premature because he had
It is required for conviction of the accused yet to file his answer to the administrative complaint
in a criminal case. and submit countervailing evidence; and (c) he was a
That which is the logical and inevitable career executive service officer and under Presidential
result of the evidence on record, exclusive Decree No. 807 (Civil Service Law), his preventive
of any other consideration, of the moral suspension shall be for a maximum period of three
certainty of the guilt of the accused or that months. Resolve with reasons the motion of
degree of proof which produces a respondent AG. (5%)
conviction in an unprejudiced mind. SUGGESTED ANSWER:
The motion should be denied for the following
2. CLEAR AND CONVINCING EVIDENCE reasons:
1 The Office of the Special Prosecutor does not
This is adduced to overcome a prima facie have exclusive authority to conduct a preliminary
case or a disputable presumption. investigation of the criminal case but it participated in
That degree of proof which will produce in the investigation together with the Deputy
the mind of the trier of facts a firm belief or Ombudsman for the Military who can handle cases of
conviction as to the allegations sought to civilians and is not limited to the military.
be established. 2 The order of preventive suspension need not wait for
the answer to the administrative complaint and the
3. PREPONDERANCE OF EVIDENCE submission of countervailing evidence. (Garcia v. Mojica,
G.R. No. 13903, September 10, 1999) In Vasquez case, G.R. No.
The degree of proof required in civil 110801, April 6, 1995, the court ruled that preventive
cases. suspension pursuant to Sec. 24 of R.A. No. 6770
That which is of greater weight or more (Ombudsman Act of 1989), shall continue until
convincing than that which is offered in termination of the case but shall not exceed six (6)
opposition to it. months, except in relation to R.A. No, 3019 and P.D.
No. 807. As a career executive officer, his preventive

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suspension under the Civil Service Law may only be of knowing the facts to which there are
for a maximum period of three months. The period of testifying,
the suspension under the Anti-Graft Law shall be the 3. the nature of the facts to which they
same pursuant to the equal protection clause. (Garcia testify,
v. Mojica, G.R. No. 13903, September 10, 1999; Layno v. 4. the probability or improbability of their
Sandiganbayan, G.R. No. L-65848, May 21, 1985) testimony,
5. their interest or want of interest, and
Bar Exam Question 2011 6. also their personal credibility so far as the
(21) 008-997-0001 In which of the following same may legitimately appear upon the
instances is the quantum of evidence trial.
ERRONEOUSLY applied? (A) in Writ of
Amparo cases, substantial evidence. (B) to The court may also consider the number of
satisfy the burden of proof in civil cases, witnesses, though the preponderance is not
preponderance of evidence. (C) to overcome a necessarily with the greater number. (1a)
disputable presumption, clear and
convincing evidence. (D) to rebut the
NOTE: In order to have the evidence which bears
presumptive validity of a notarial
on the issue preponderate in his favor, a party
document, substantial evidence.
must have presented in support of his contention
proof which appears to have overcome opposing
presumptions as well as opposing evidence.
Note: Evidence to be believed must not only come
from a credible witness but must also be credible
in itself.
POSITIVE NEGATIVE
TESTIMONY TESTIMONY
EQUIPOISE RULE
It is when the witness It is when the witness
Where the evidence of the parties in a criminal
affirms that a fact did or states that he did not
case is evenly balanced, the constitutional
did not occur see or know of the
presumption of innocence should tilt the scales in
occurrence of a fact
favor of the accused.
Of greater weight that Is of lesser weight than
EQUIPONDERANCE OF EVIDENCE (RULE) the other positive testimony
In civil cases, when there is balance in the
evidence of the plaintiff and the defendant, as a REASON WHY POSITIVE TESTIMONY IS OF
rule defendant wins. Plaintiff must proved his GREATER WEIGHT
allegations by preponderance of evidence. He who denies a certain fact may not remember
exactly the circumstances on which he basis his
HOWEVER, when the defendant interposes an denial.
affirmative defense, and the evidence is evenly
balanced, [it is suggested] plaintiff wins. The
affirmative defense shifted the burden of proof to Section 2. Proof beyond reasonable doubt. —
the defendant. Besides, by raising affirmative In a criminal case, the accused is entitled to an
defense, the defendant is deemed to have acquittal, unless his guilt is shown beyond
admitted the material allegations in the complaint. reasonable doubt. Proof beyond reasonable doubt
does not mean such a degree of proof, excluding
possibility of error, produces absolute certainty.
Moral certainly only is required, or that degree of
Section 1. Preponderance of evidence, how proof which produces conviction in an
determined. — In civil cases, the party having unprejudiced mind. (2a)
burden of proof must establish his case by a
preponderance of evidence. In determining where Note: Prosecution must present evidence that is
the preponderance or superior weight of evidence strong enough to convince the court that the
on the issues involved lies, the court may prisoner must be punished not because he cannot
consider: proved that he is innocent but because it has
proved that he was guilty.
1. all the facts and circumstances of the
case, For the accused, it is enough that he is able to
2. the witnesses' manner of testifying, their prove his defenses by preponderance of evidence
intelligence, their means and opportunity since it will create a reasonable doubt as to his
guilt. Thus, whenever there is a reasonable doubt

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as to is guilt, the accused is entitled to an 2. the participation of the accused as the

acquittal. perpetrator or one of the perpetrators.
The 2nd requisite means that the accused must
properly be identified. Cursory identification does
ALIBI not suffice to convict the accused. There must be
One of the weakest defenses because of the positive identification made with moral certainty as
facility with which it can be fabricated, just like a to the person of the offender (P. vs. Maguing, GR
mere denial (P. vs. Esperanza, GR No. 139217- No. 144090, June 26, 2003).
24, June 27, 2003).
Eyewitness identification is often decisive of the
It must be established by positive, clear and conviction or acquittal of the accused.
satisfactory evidence. Identification of an accused through mug shots is
one of the established procedures in pinning down
REQUISITES: criminals. However, to avoid charges of
1. showing that the accused is not only impermissible suggestion, there should be nothing
somewhere else; in the photograph that would focus attention on a
2. but that it was impossible for him to be at single person (P. vs. Villena, GR no. 140066, Oct.
the place of the crime at the time of its 14, 2002).
commission.
A police line-up is merely a part of the
MOTIVE investigation process by police investigators to
The rule is well-settled that the prosecution need ascertain the identity of the offenders or confirm
not prove motive on the part of the accused when their identification by a witness to the crime. Police
the latter has been positively identified as the officers are not obliged to assemble a police line-
author of the crime. up as a condition sine qua non to prove identity of
the offender. If on the basis of the evidence on
It becomes relevant only when the accused sas hand, police officers are certain of the identity of
not been positively identified and proof thereof the offender, they need not require a police line-up
becomes essential only when the evidence of the (Tapdasan, Jr. vs. P. GR No. 141344, Nov. 21,
commission of the crime is purely circumstantial or 2002
inconclusive.
RES IPSA LOQUITOR (the thing speaks for itself)
OUT OF COURT IDENTIFICATION: The SC has It is the maxim for the rule that the fact of the
held that on the admissibility and reliability of out- occurrence of an injury, taken with the surrounding
of-court identification of suspects, courts have circumstances, may permit an inference or raise a
adopted the “TOTALITY OF CIRCUMSTANCES presumption of negligence, or make out a
TEST” which utilizes the following factors: plaintiff’s prima facie case, and present a question
1. the witness’s opportunity to view the of fact for the defendant to meet with explanation.
criminal at the time of the crime;
2. the witness’s degree of attention at that The doctrine is simply a recognition of postulate
time; that as a matter of common knowledge and
3. the accuracy of any prior description given experience, the very nature of certain types of
by the witness; occurrences may justify an inference of
4. the level of certainty that the witness negligence on the part of the person who controls
demonstrated at the identification; the instrumentality causing the injury, in the
5. the length of time between the crime and absence of some explanation by him. However, it
the identification; does not dispense with the requirement of proof of
6. the suggestiveness of the identification negligence.
procedure.
RULE ON PARTIAL CREDIBILITY
When the identity of the appellant is not Falsus in uno, Falsus in omnibus (False in one
established beyond reasonable doubt, acquittal thing, false in everything).
necessarily follows. Conviction for the crime rests
on the strength of the prosecution’s evidence, If the testimony of a witness on a material
never on the weakness of that of the defense. issue is willfully false and given with an
intention to deceive, the court may
In every criminal prosecution, the People must disregard all the witness’ testimony.
prove:
1. the commission of the crime; and

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This is not a mandatory rule of evidence but is is credible and positive, can prove the
applied by the court in its discretion. guilt of the accused beyond reasonable
doubt. (People vs. Layson, G.R. No.
IMPORTANT: 105689, February 23, 1994). Thus, a lone
1. Deals only with weight of evidence and witness may be believed even if not
not a positive rule of law; corroborated.
2. The witness’ false or exaggerated
statements on other matters shall not
preclude the acceptance of such evidence Section 3. Extrajudicial confession, not
as is relieved from sign of falsehood; sufficient ground for conviction. — An
3. The court may accept and reject portions extrajudicial confession made by an accused,
of the witness’ testimony depending on shall not be sufficient ground for conviction, unless
the inherent credibility thereof. corroborated by evidence of corpus delicti. (3)
The credibility of witness is best determined by the
CORPUS DELICTI
trial judge, who has the direct opportunity to
In its legal sense, refers to the fact of the
observe and evaluate their demeanor on the
commission of the crime, not to the physical body
witness stand. The trial court’s finding of fact will
of the deceased or to the ashes of the burned
not be disturbed on appeal, unless there is a clear
building or as in the case of smuggled cigarettes.
showing that it plainly overlooked matters of
substance which, if considered, might affect the
The corpus delicti may be proven by the credible
result of the review (P. vs. Pacuancuan, GR NO.
testimony of a sole witness, not necessarily by
144589, June 16, 2003).
physical evidence such as the aforementioned
In rape cases, the lone testimony of the offended (Rimorin vs. P. GR No. 146481, April, 30 2003).
party, if free from serious and material
The identity of the accused is not an element of
contradictions, is sufficient to sustain a conviction
the corpus delicti.
(P. vs. Esperanza, supra).
Admissibility; Admission of Guilt (2008)
REASON: No young Filipina of decent repute
would undergo the expense, trouble, No. XVI. The mutilated cadaver of a woman
inconvenience of a public trial, exposing herself to was discovered near a creek. Due to
public shame and ridicule; suffer scandal and witnesses attesting that he was the last
embarrassment and humiliation of a public trial person seen with the woman when she was
and publicly admitting that she was criminally still alive, Carlito was arrested within five
abused unless it is the truth (P. vs Avero, 165 hours after the discovery of the cadaver and
SCRA 130). brought to the police station. The crime
laboratory determined that the woman had
The sole, uncorroborated testimony of an accused been raped. While in police custody, Carlito
who turned state witness suffice to convict his co- broke down in the presence of an assisting
accused if it is given in unhesitatingly and in a counsel orally confessed to the investigator
straightforward manner and is full of details which that he had raped and killed the woman,
by their nature could not have been the result of detailing the acts he had performed up to his
deliberate afterthought, otherwise, it needs dumping of the body near the creek. He was
corroboration, the presence or lack of which may genuinely remorseful. During the trial, the
ultimately decide the case of the prosecution and state presented the investigator to testify on
the fate of the accused (P. vs. Sunga, GR No. the oral confession of Carlito. Is the oral
126029, march 27, 2003). confession admissible in evidence of guilt?
(4%) SUGGESTED ANSWER: The
Bar Exam Question 2012 declaration of the accused expressly
60. Correctly complete the sentence: A lone acknowledging his guilt, in the presence of
witness --- assisting counsel, may be given in
a. is credible only if corroborated. evidence against him and any person,
b. is never credible. otherwise competent to testify as a
c. may be believed even if not witness, who heard the confession is
corroborated. competent to testify as to the substance
d. is always credible. to what he heard and understood it. What
SUGGESTED ANSWER: (c), The testimony is crucial here is that the accused was
of a lone prosecution witness, as long as it informed of his right to an attorney and

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that what he says may be used in evidence Direct proof of previous agreement is not
against him. As the custodial confession necessary to prove conspiracy as it may be
was given in the presence of an assisting deducted from the acts of the perpetrators before,
counsel, Carlito is deemed fully aware of during and after the commission of the crime
the consequences of his statements which are indicative of a common design,
(People v. Silvano, GR No. 144886, 29 concerted action and concurrence of sentiments
April 2002). (Serrano v. CA, GR No. 123896, June 25, 2003).
Admissibility; Offer to Marry; Circumstantial Evidence

Section 4. Circumstantial evidence, when (1998)
sufficient. — Circumstantial evidence is sufficient A was accused of having raped X. Rule on the
for conviction if: admissibility of the following pieces of evidence:
1 an offer of A to marry X; and (3%]
2 a pair of short pants allegedly left by A at the crime
(a) There is more than one circumstances;
which the court, over the objection of A, required him
to put on, and when he did, it fit him well. [2%]
(b) The facts from which the inferences SUGGESTED ANSWER:
are derived are proven; and 1. A's offer to marry X is admissible in evidence as an
Implied admission of guilt because rape cases are not
(c) The combination of all the allowed to be compromised. (Sec. 27 of Rule 13O;
circumstances is such as to produce a People vs. Domingo, 226 SCRA 156.)
conviction beyond reasonable doubt. (5) 2. The pair of short pants, which fit the accused well,
is circumstantial evidence of his guilt, although
REASON for admission: standing alone it cannot be the basis of conviction.
It is due to necessity, especially in a criminal case. The accused cannot object to the court requiring him
If only direct evidence is allowed, very few to put the short pants on. It is not part of his right
convictions could be had. Besides circumstantial against self-incrimination because it is a mere physical
evidence is based on sound rational grounds of act.
everyday logic.
Bar Exam Question 2011 Section 5. Substantial evidence. — In cases filed

(37) Cindy charged her husband, George, before administrative or quasi-judicial bodies, a
with bigamy for a prior subsisting marriage fact may be deemed established if it is supported
with Teresa. Cindy presented Ric and Pat, by substantial evidence, or that amount of relevant
neighbors of George and Teresa in Cebu City, evidence which a reasonable mind might accept
to prove, first, that George and Teresa as adequate to justify a conclusion. (n)
cohabited there and, second, that they
established a reputation as husband and Section 6. Power of the court to stop further
wife. Can Cindy prove the bigamy by such evidence. — The court may stop the introduction
evidence? (A) Yes, the circumstantial of further testimony upon any particular point
evidence is enough to support a conviction when the evidence upon it is already so full that
for bigamy. (B) No, at least one direct more witnesses to the same point cannot be
evidence and two circumstantial evidence are reasonably expected to be additionally persuasive.
required to support a conviction for bigamy. But this power should be exercised with caution.
(C) No, the circumstantial evidence is not (6)
enough to support a conviction for
bigamy. Section 7. Evidence on motion. — When a
(D) No, the circumstantial evidence cannot motion is based on facts not appearing of record
overcome the lack of direct evidence in any the court may hear the matter on affidavits or
criminal case. depositions presented by the respective parties,
but the court may direct that the matter be heard
wholly or partly on oral testimony or depositions.
Circumstantial evidence is sometimes the best (7)
evidence. Circumstantial evidence cannot lie or be
a product of deliberate afterthought which is a
possibility in a testimony of an ordinary witness
(Ucat).
RULE 134

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Perpetuation of Testimony Section 5. Reference to court. — For the

purpose of applying Rule 24 to depositions for
Section 1. Petition. — A person who desires to perpetuating testimony, each reference therein to
perpetuate his own testimony or that of another the court in which the action is pending shall be
person regarding any matter that may be deemed to refer to the court in which the petition
cognizable in any court of the Philippines, may file for such deposition was filed.
a verified petition in the court of the province of the
residence of any expected adverse party. Section 6. Use of deposition. — If a deposition to
perpetuate testimony is taken under this rule, or if,
Section 2. Contents of petition. — The petition although not so taken, it would be admissible in
shall be entitled in the name of the petitioner and evidence, it may be used in any action involving
shall show: the same subject matter subsequently brought in
accordance with the provisions of Sections 4 and
5 of Rule 24.
(a) that the petitioner expects to be a party to an
action in a court of the Philippines by is presently
unable to bring it or cause it to be brought; Section 7. Depositions pending appeal. — If an
appeal has been taken from a judgment of the
Regional Trial Court or before the taking of an
(b) the subject matter of the expected action and
his interest therein; appeal if the time therefor has not expired, the
Regional Trial Court in which the judgment was
rendered may allow the taking of depositions of
(c) the facts which he desires to establish by the witnesses to perpetuate their testimony for use in
proposed testimony and his reasons for desiring to the event of further proceedings in the said court.
perpetuate it; In such case the party who desires to perpetuate
the testimony may make a motion in the said
(d) the names of a description of the persons he Regional Trial Court for leave to take the
expects will be adverse parties and their depositions, upon the same notice and service
addresses so far as known; and thereof as if the action was pending therein.
The motion shall show:
(e) the names and addresses of the persons to be (a) the name and the addresses of the persons to
examined and the substance of the testimony be examined and the substance of the testimony
which he expects to elicit from each, and shall ask which he expects to elicit from each; and
for an order authorizing the petitioner to take the (b) the reason for perpetuating their testimony.
depositions of the persons to be examined named
in the petition for the purpose of perpetuating their If the court finds that the perpetuation of the
testimony. testimony is proper to avoid a failure or delay of
justice, it may make an order allowing the
Section 3. Notice and service. — The petitioner depositions to be taken, and thereupon the
shall thereafter serve a notice upon each person depositions may be taken and used in the same
named in the petition as an expected adverse manner and under the same conditions as are
party, together with a copy of a petition, stating prescribed in these rules for depositions taken in
that the petitioner will apply to the court, at a time actions pending in the Regional Trial Court. (7a)
and place named therein, for the order described
in the petition. At least twenty (20) days before
the date of hearing the notice shall be served in
the manner provided for service of summons.
Rule 135
POWERS AND DUTIES OF COURTS AND
Section 4. Order of examination. — If the court is
JUDICIAL OFFICERS
satisfied that the perpetuation of the testimony
may prevent a failure or delay of justice, it shall
make an order designating or describing the
persons whose deposition may be taken and
specifying the subject matter of the examination, RULE 135
and whether the depositions shall be taken upon
oral examination or written interrogatories. The Powers and Duties of Courts and Judicial
depositions may then be taken in accordance with Officers
Rule 24 before the hearing.

________________________________________________________________________________________________
Section 1. Courts always open; justice to be except with the approval of the judge of first
promptly and impartially administered. — instance of said province, and only in the following
Courts of justice shall always be open, except on cases:
legal holidays, for the filing of any pleading, motion
or other papers, for the trial of cases, hearing of (a) When an order for the delivery of personal
motions, and for the issuance of orders or property lying outside the province is to be
rendition of judgments. Justice shall be impartially complied with;
administered without unnecessary delay.
(b) When an attachment of real or personal
Judicial Autonomy & Impartiality (2003) property lying outside the province is to be
In rendering a decision, should a court take into made;
consideration the possible effect of its verdict upon
the (c) When the action is against two or more
political stability and economic welfare of the nation? defendants residing in different provinces; and
4%
SUGGESTED ANSWER:
No, because a court is required to take into (d) When the place where the case has been
consideration only the legal issues and the evidence brought is that specified in a contract in writing
admitted in the case. The political stability and between the parties, or is the place of the
economic welfare of the nation are extraneous to the execution of such contract as appears
case. They can have persuasive influence but they are therefrom.
not the main factors that should be considered in
deciding a case. A decision should be based on the law, Writs of execution issued by inferior courts may be
rules of procedure, justice and equity. However, in enforced in any part of the part of the Philippines
exceptional cases the court may consider the political without any previous approval of the judge of first
stability and economic welfare of the nation when instance.
these
are capable of being taken into judicial notice of and Criminal process may be issued by a justice of the
are relevant to the case. peace or other inferior court, to be served outside
his province, when the district judge, or in his
absence the provincial fiscal, shall certify that in
his opinion the interest of justice require such
Sec 2. Publicity of proceedings and records. —
service.
The sitting of every court of justice shall be public,
but any court may, in its discretion, exclude the
public when the evidence to be adduced is of such Section 5. Inherent powers of court. — Every
nature as to require their exclusion in the interest court shall have power:
of morality or decency. The records of every court
of justice shall be public records and shall be (a) To preserve and enforce order in its
available for the inspection of any interested immediate presence;
person, at all proper business hours, under the
supervision of the clerk having custody of such (b) To enforce order in proceedings before it,
records, unless the court shall, in any special or before a person or persons empowered to
case, have forbidden their publicity, in the interest conduct a judicial investigation under its
of morality or decency. authority;
Section 3. Process of superior courts enforced (c) To compel obedience to its judgments,
throughout the Philippines. — Process issued orders and processes, and to the lawful orders
from a superior court in which a case is pending to of a judge out of court, in a case pending
bring in a defendant, or for the arrest of any therein;
accused person, or to execute any order or
judgment of the court, may be enforced in any part (d) To control, in furtherance of justice, the
of the Philippines. conduct of its ministerial officers, and of all
other persons in any manner connected with a
Section 4. Process of inferior courts. — The case before it, in every manner appertaining
process of inferior courts shall be enforceable thereto;
within the province where the municipality or city
lies. It shall not be served outside the boundaries
of the province in which they are comprised

________________________________________________________________________________________________
(e) To compel the attendance of persons to opportunity given for argument to the parties or
testify in a case pending therein; their counsel, it shall be lawful for him to prepare
and sign his decision in said case anywhere within
(f) To administer or cause to be administered the Philippines. He shall send the same by
oaths in a case pending therein, and in all registered mail to the clerk of the court where the
other cases where it may be necessary in the case was heard or argued to be filed therein as of
exercise of its powers; the date when the same was received by the
clerk, in the same manner as if he had been
present in court to direct the filing of the judgment.
(g) To amend and control its process and
If a case has been heard only in part, the
orders so as to make them conformable to law
Supreme Court, upon petition of any of the parties
and justice;
to the case and the recommendation of the
respective district judge, may also authorize the
(h) To authorize a copy of a lost or destroyed judge who has partly heard the case, if no other
pleading or other paper to be filed and used judge had heard the case in part, to continue
instead of the original, and to restore, and hearing and to decide said case notwithstanding
supply deficiencies in its records and his transfer or appointment to another court of
proceedings. equal jurisdiction.
Section 6. Means to carry jurisdiction into

effect. — When by law jurisdiction is conferred on
a court or judicial officer, all auxiliary writs,
processes and other means necessary to carry it
into effect may be employed by such court or
officer; and if the procedure to be followed in the
exercise of such jurisdiction is not specifically
pointed out by law or by these rules, any suitable
process or mode of proceeding may be adopted
which appears comfortable to the spirit of the said
law or rules.
Section 7. Trials and hearings; orders in

chambers. — All trials upon the merits shall be
conducted in open court and so far as convenient
in a regular court room. All other acts or
proceeding may be done or conducted by a judge
in chambers, without the attendance of the clerk or
other court officials.
Section 8. Interlocutory orders out of province.

— A judge of first instance shall have power to
hear and determine, when within the district
though without his province, any interlocutory
motion or issue after due and reasonable notice to
the parties. On the filing of a petition for the writ of
habeas corpus or for release upon bail or
reduction of bail in any Court of First Instance, the
hearings may be had at any place in the judicial
district which the judge shall deem convenient.
Section 9. Signing judgments out of province.

— Whenever a judge appointed or assigned in
any province or branch of a Court of First Instance
in a province shall leave the province by transfer
or assignment to another court of equal
jurisdiction, or by expiration of his temporary
assignment, without having decided a case totally
heard by him and which was argued or an

________________________________________________________________________________________________
does not exceed One Hundred Thousand Pesos

(P100,000.00) exclusive of interest and costs.
Section 3. Definiton of Terms. - For purposes of

this Rule:
ANNEXES (a) Plaintiff - refers to the party who

initiated a small claims action. The term
includes a defendant who has filed a
BONUS ITEMS counterclaim against plaintiff;
(b) Defendant - is the party against whom

Republic of the Philippines the plaintiff has filed a small claims action.
SUPREME COURT The term includes a plaintiff against whom
Manila a defendant has filed a claim, or a person
who replies to the claim;
EN BANC
(c) Person - is an individual, corporation,
A.M. No. 08-8-7-SC November 21, 2000 partnership, limited liability partnership,
association, or other juridical entity
endowed with personality by law;
RE: THE RULE OF PROCEDURE FOR SMALL
CLAIMS CASES
(d) Individual - is a natural person;
RESOLUTION
(e) Motion - means a party's request,
written or oral, to the court for an order
Acting on the recommendation of the Chairperson, action. It shall include an informal written
Technical Working Group, Committee on Revision request to the court, such as a letter;
of the Rules of Court, submitting for the
consideration and approval of the Court the
(f) Good cause - means circumstances
proposed "The Rule of Procedure for Small
Claims Cases," the Court Resolved to APPROVE sufficient to justify the requested order or
other action, as determined by the judge;
the same.
and
The Rule shall take effect on October 01, 2008
(g) Affidavit - means a written statement
following its publication two (2) newspaper of
general circulation. or declaration of facts that are shown or
affirmed to be true.
September 9, 2008
Section 4. Applicability - The Metropolitan Trial
Courts, Municipal Trial Courts in Cities, Municipal
RULE OF PROCEDURE FOR SMALL CLAIMS Trial Courts, and Municipal Circuit Trial Courts
CASES shall apply this Rule in all actions which are; (a)
purely civil in nature where the claim or relief
Section 1. Title. - This Rule shall be known as " prayed for by the plaintiff is solely for payment or
The Rule of Procedure for Small Claims Cases." reimbursement of sum of money, and (b) the civil
aspect of criminal action, or reserved upon the
NATURE OF SMALL CLAIMS CASES filing of the criminal action in court, pursuant to
1. Personal action Rule of 111 of the Revised Rules of Criminal
2. Action in personam Procedure.
3. Summary
These claims or demands may be;
Section 2. Scope. - This Rule shall govern the
procedure in actions before the Metropolitan trial (a) For money owned under any of the
Courts, Municipal Trial Courts in Cities, Municipal following;
Trial Courts and Municipal Circuit Trial Courts for
payment of money where the value of the claim 1. Contract of Lease;

________________________________________________________________________________________________
2. Contract of Loan;
3. Contract of Services; Bar Exam Question 2012
4. Contract of Sale; or 97. The Rule on Small Claims is applicable
5. Contract of Mortgage; to:
a. claims for unpaid rentals of P 100,000 or
(b) For damages arising from any of the less, with prayer for ejectment.
following; b. enforcement of a barangay amicable
settlement involving a money claim of P
1. Fault or negligence; 50,000 after one (1) year from date of
2. Quasi-contract; or settlement.
3. Contract; c. action for damages arising from a quasi-
delict amounting to P 100,000.
(c) The enforcement of a barangay d. action to collect on a promissory note
amicable settlement or an arbitration amounting to P 105,000 where plaintiff
award involving a money claim covered by expressly insists in recovering only P 1
this Rule pursuant to Sec. 417 of Republic 00,000.
Act 7160, otherwise known as the Local SUGGESTED ANSWER: (c), The Rule on
Government Code of 1991. Small Claims shall be applied in all actions
which are: (a) purely civil in nature where
the claim or relief prayed for by the
Bar Exam Questions 2013
plaintiff is solely for payment or
IV. A Small Claims Court __________. (1%)
reimbursement of sum of money, and (b)
(A) has jurisdiction over ejectment actions (B)
the civil aspect of criminal actions, either
has limited jurisdiction over ejectment
filed before the institution of the criminal
actions (C) does not have any jurisdiction
action, or reserved upon the filing of the
over ejectment actions (D) does not have
criminal action in court, pursuant to Rule
original, but has concurrent, jurisdiction over
111 of the Revised Rules of Criminal
ejectment actions (E) has only residual
Procedure. These claims or demands may
jurisdiction over ejectment actions
be for damages arising from fault or
SUGGESTED ANSWER: (C), Under Section
negligence. (Sec. 4, A.M. No. 08-8-7-SC,
4 of A.M. No. 8-8-7-SC, Rules of Procedure
The Rule of Procedure for Small Claims
of Small Claims, Small claims court shall
Cases).
have jurisdiction over all actions which
are: (a) purely civil in nature where the
claim or relief prayed for by the plaintiff is
solely for payment or reimbursement of
sum of money, and (b) the civil aspect of Section 5. Commencement of Small Claims
criminal actions, either filed before the Action. - A small claims action is commenced by
institution of the criminal action, or filing with the court an accomplished and verified
reserved upon the filing of the criminal Statement of Claim (Form 1 - SCC) in duplicate,
action in court, pursuant to Rule 111 of accompanied by a Certification of Non-forum
the Revised Rules of Criminal Procedure. Shopping (Form 1-A,SCC), and two (2) duly
It does not include ejectment actions. certified photocopies of the actionable document/s
Moreover, the action allowed under the subjects of the claim, as well as the affidavits of
Rules on Small claims refers only to witnesses and other evidence to support the
money under a lease contract. It does not claim. No evidence shall be allowed during the
necessarily refer to an ejectment suit. hearing which was not attached to or submitted
At any rate, Section 33 of Batas Pambansa together with the Claim, unless good cause is
Blg 129, as amended by Section 3 of R.A> shown for the admission of additional evidence.
7691, as well as Section 1, Rule 70 of the
Rules of Court, clearly provides that No formal pleading, other than the Statement of
forcible entry and unlawful detainer cases Claim described in this Rule, is necessary to
fall within the exclusive jurisdiction of the initiate a small claims action.
Metropolitan Trial Courts, Municipal Trial
Courts and Municipal Circuit Trial Courts Section 6. Joinder of Claims - Plaintiff may join
(Estel vs. Recaredo Diego, Sr. And in a single statement of claim one or more
Recaredo Diego, Jr., G.R. No. 174082, separate small claims against a defendant
January 16, 2012, Peralta, J.). provided that the total amount claimed, exclusive

________________________________________________________________________________________________
of interest and costs, does not exceed Section 8. Payment of Filing Fees. - The plaintiff
P100,00.00. shall pay the docket and other legal fees
prescribed under Rule 141 of the Revised Rules of
Section 7. Affidavits - The affidavits submitted Court, unless allowed to litigate as an indigent.
under this Rule shall state only facts of direct
personal knowledge of the affiants which are A claim filed with a motion to sue as indigent
admissible in evidence. (Form 6-SCC) shall be referred to the Executive
Judge for immediate action in case of multi-sala
A violation of this requirement shall subject the courts, or to the Presiding Judge of the court
party, and the counsel who assisted the party in hearing the small claims case. If the motion is
the preparation of the affidavits, if any, to granted by the Executive Judge, the case shall be
appropriate disciplinary action. The inadmissible raffled off or assigned to the court designated to
affidavit(s) or portion(s) thereof shall be expunged hear small claims cases. If the motion is denied,
from the record. the plaintiff shall be given five (5) days within
which to pay the docket fees, otherwise, the case
shall be dismissed without prejudice. In no case
Small Claims (2013)
shall a party, even if declared an indigent, be
No.X. As a new lawyer, Attorney Novato
exempt from the payment of the P1,000.00 fee for
limited his practice to small claims cases,
service of summons and processes in civil cases.
legal counseling and the notarization of
documents. He put up a solo practice law
office and was assisted by his wife who Section 9. Dismissal of the Claim. - After the
served as his secretary/helper. He used a court determines that the case falls under this
makeshift hut in a vacant lot near the local Rule, it may, from an examination of the
courts and a local transport regulatory allegations of the Statement of Claim and such
agency. With this practice and location, he evidence attached thereto, by itself, dismiss the
did not have big-time clients but enjoyed case outright of any of the grounds apparent from
the Claim for the dismissal of a civil action.
heavy patronage assisting walk-in clients. (A)
What role can Attorney Novato play in small
claims cases when lawyers are not allowed to Section 10. Summons and Notice of Hearing -
appear as counsel in these cases? (3%) If no ground for dismissal is found, the court shall
SUGGESTED ANSWER: Atty. Novata may forthwith issue Summons (Form 2-SCC) on the
provide legal assistance to his clients by day of receipt of the Statement of Claim, directing
giving counselling and guidance in the the defendant to submit a verified Response.
preparation and accomplishment of the
necessary documents and Affidavits to The court shall also issue a Notice (Form 4-SCC)
initiate or defend a small claims action to both parties, directing them to appear before it
including the compilation and on a specific date and time for hearing, with a
notarization of the aforementioned warning that no unjustified postponement shall be
documents, if necessary. allowed, as provided in Section 19 of this Rule.
(B) What legal remedy, if any, may Attorney The summons and notice to be served on the
Novato pursue for a client who loses in a defendant shall be accompanied by a copy of the
small claims case and before which tribunal Statement of Claim and documents submitted by
or court may this be pursued? (4%) plaintiff, and a copy of the Response (Form 3-
SUGGESTED ANSWER: SCC) to be accomplished by the defendant. The
Atty. Novata may file a petition for Notice shall contain an express prohibition against
Certiorari under Rule 65 of the Rules of the filing of a motion to dismiss or any other
Court before the RTC since a decision in motion under Section 14 of this Rule.
small claims cases is final and
unappealable (Sec. 23, A.M. No. 8-8-7 SC, Section 11. Response - The defendant shall file
Rules of Procedure for Small Claims with the court and serve on the plaintiff a duly
Cases). The petition for certiorari should accomplished and verified Response within a non
be filed before the RTC conformably to the - extendible period of ten (10) days from receipt of
Principle of judicial Hierarchy. summons. The Response shall be accompanied
by certified photocopies of documents, as well as
affidavits of witnesses and other evidence in
support thereof. No evidence shall be allowed
during the hearing which was not attached to or

________________________________________________________________________________________________
submitted together with the Response, unless against the plaintiff that (a) is within the coverage
good cause is shown for the admission of of this rule, exclusive of interest and costs; (b)
additional evidence. arises out of the same transaction or event that is
the subject matter of the plaintiff's claim; (c) does
Bar Exam Question 2011 not require for its adjudication the joinder of third
(8) Which of the following precepts forms part parties; and (d) is not the subject of another
of the rules governing small claims? (A) pending action, the claim shall be filed as a
Permissive counterclaim is not allowed. counterclaim in the response; otherwise, the
(B) The court shall render its decision within defendant shall be barred from suit on the
3 days after hearing. (C) Joinder of separate counterclaim.
claims is not allowed. (D) Motion to declare
defendant in default is allowed. The defendant may also elect to the file a
counterclaim against the plaintiff that does not
arise out of the same transaction or occurrence ,
provided that the amount and nature thereof are
within the coverage of this Rule and the
Section 12. Effect of Failure to File Response - prescribed docket and the other legal fees are
Should the defendant fail to file his response paid.
within the required period, the court by itself shall
render judgment as may be warranted by the facts
alleged in the Statement of claim limited to what is Section 14. Prohibited Pleadings and Motions -
prayed for. The court however, may, in its The following pleadings, motions, and petitions
discretion, reduce the amount of damages for shall not be allowed in the cases covered by this
being excessive or unconscionable. Rule:
Bar Exam Question 2012 (a) Motion to dismiss the compliant except on
10. A defendant who fails to file a timely the ground of lack of jurisdiction;
Answer or responsive pleading will not be (a) is already removed by later
amendment of the Rule.
declared in default in:
(b) Motion for a bill of particulars;
a. probate proceedings where the estate is
(c) Motion for new trial, or for reconsideration
valued at P 1 00,000;
of a judgment, or for reopening of trial;
b. forcible entry cases;
(d) Petition for relief from judgment;
c. collection case not exceeding P (e) Motion for extension of time to file
100,000; pleadings, affidavits, or any other paper;
d. violation of rental law. (f) Memoranda;
SUGGESTED ANSWERS: (g) Petition for certiorari, mandamus, or
(b), Under the Rules on Summary prohibition against any interlocutory order
Procedure, if the defendant fails to file an issued by the court;
Answer to the complaint within a period of (h) Motion to declare the defendant in default;
Ten (10) days from receipt thereof, the (i) Dilatory motions for postponement;
court may motu propio, or on motion of (j) Reply;
the plaintiff, render judgment as may be (k) Third-party complaints; and
warranted by the facts alleged in the (l) Interventions.
complaint and limited to what is prayed
for therein. (Sec.6, Revised Rules of Section 15. Availability of Forms; Assistance
Summary Procedure). There is no by Court Personnel. - The Clerk of Court or other
declaration of default under the Rules on personnel shall provide such assistance as may
Summary Procedure. (c), A collection case be requested by a plaintiff or a defendant
not exceeding P100,000.00 is governed by regarding the availability of forms and other
the Law on Small Claims which does not information about the coverage, requirements as
vest the Court the power and authority to well as procedure for small claims cases.
declare a defendant in default.
Section 16. Appearance. - the parties shall
appear at the designated date of hearing
personally or through a representative authorized
Section 13. Counterclaims Within the under a Special Power of Attorney (Form 5-SCC )
Coverage of this Rule - If at the time the action is to enter into an amicable settlement, to submit of
commenced, the defendant possesses a claim Judicial Dispute Resolution (JDR) and to enter into

________________________________________________________________________________________________
stipulations or admissions of facts and of judge who conducted the JDR, the hearing shall
documentary exhibits so proceed in an informal and expeditious manner
and terminated within one (1) day.
Section 17. Appearance of Attorneys Not
Allowed. - No attorney shall appear in behalf of or Absent such agreement, (a) in case of a multi-sala
represent a party at the hearing, unless the court , the case shall, on the same day, be
attorney is the plaintiff or defendant. transmitted (Form 11-SCC) to the Office of the
Clerk of Court for immediate referral by the
If the court determines that a party cannot properly Executive Judge to the pairing judge for hearing
present his/her claim or defense and needs and decision within five (5) working days from
assistance, the court may, in its discretion, allow referral; and (b) in case of single sala court, the
another individual who is not an attorney to assist pairing judge shall hear and decide the case in the
that party upon the latter's consent. court of origin within five (5) working days from
referral by the JDR judge.
Section 18. Non-appearance of Parties. -
Failure of the plaintiff to appear shall be cause for Section 23. Decision. - After the hearing, the
the dismissal of the claim without prejudice. The court shall render its decision on the same day,
defendant who appears shall be entitled to based on the facts established by the evidence
judgment on a permissive counterclaim. (Form 13-SCC). The decision shall immediately be
entered by the Clerk of Court in the court docket
Failure of the defendant to appear shall have the for civil cases and a copy thereof forthwith served
on the parties.
same effect as failure to file a Response under
Section 12 of this Rule. This shall not apply where
one of two or more defendants who are sued The decision shall be final and unappealable.
under a common cause of action and have
pleaded a common defense appears at the Note: The remedy is Rule 65.
hearing.
Section 24. Execution. - If the decision is
Failure of both parties to appear shall cause the rendered in favor of the plaintiff, execution shall
dismissal with prejudice of both the claim and issue upon motion (Form 9-SCC).
counterclaim.
Section 25. Applicability. of the Rules of Civil
Section 19. Postponement When Allowed. - A Procedure - The Rules of Civil procedure shall
request for postponement of a hearing may be apply suppletorily insofar as they are not
granted only upon proof of the physical inability of inconsistent with this rule.
the party to appear before the court on the
scheduled date and time. A party may avail of only Section 26. Effectivity. - This Rule shall take
one (1) postponement. effect on October 01, 2008 for the pilot courts
designated to apply the procedure for small claims
Section 20. Duty of the Court. - At the beginning cases following its publication in two newspaper of
of the court session, the judge shall read aloud a general circulation.
short statement explaining the nature, purpose
and the rule of procedure of small claims cases.
Republic of the Philippines
Section 21. Judicial Dispute Resolution. - At SUPREME COURT
the hearing, the judge shall conduct Judicial Manila
Dispute Resolution (JDR) through mediation,
conciliation, early neutral evaluation, or any other A.M. No. 09-6-8-SC
mode of JDR. Any settlement (Form 7-SCC) or
resolution (Form 8-SCC) of the dispute shall be RULES OF PROCEDURE FOR
reduced into writing, signed by the parties and ENVIRONMENTAL CASES
submitted to the court for approval (Form 12-
SCC). RESOLUTION
Section 22. Failure of JDR. - If JDR fails and the Acting on the recommendation of the Chairperson
parties agree in writing (Form 10-SCC) that the of the Sub-committee on the Rules of Procedure
hearing of the case shall be presided over by the

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for Environmental Cases submitting for this Courts (k) R.A. No. 6969, Toxic Substances and
consideration and approval Hazardous Waste Act;
(l) R.A. No. 7076, Peoples Small-Scale Mining
the proposed Rules of Procedure for Act;
Environmental Cases, the Court Resolved to (m) R.A. No. 7586, National Integrated Protected
APPROVE the same. Areas System Act including all laws, decrees,
orders, proclamations and issuances establishing
These Rules shall take effect within fifteen (15) protected areas;
days following its publication once in a newspaper
of general circulation. (n) R.A. No. 7611, Strategic Environmental Plan
for Palawan Act;
April 13, 2010. (o) R.A. No. 7942, Philippine Mining Act;
(p) R.A. No. 8371, Indigenous Peoples Rights Act;
(q) R.A. No. 8550, Philippine Fisheries Code;
RULES OF PROCEDURE FOR (r) R.A. No. 8749, Clean Air Act;
ENVIRONMENTAL CASES (s) R.A. No. 9003, Ecological Solid Waste
Management Act;
PART I (t) R.A. No. 9072, National Caves and Cave
Resource Management Act;
RULE 1 (u) R.A. No. 9147, Wildlife Conservation and
GENERAL PROVISIONS Protection Act;
(v) R.A. No. 9175, Chainsaw Act;
Section 1.Title. These Rules shall be known as (w) R.A. No. 9275, Clean Water Act;
"The Rules of Procedure for Environmental (x) R.A. No. 9483, Oil Spill Compensation Act of
Cases." 2007; and
Section 2.Scope. These Rules shall govern the (y) Provisions in C.A. No. 141, The Public Land
procedure in civil, criminal and special civil actions Act; R.A. No. 6657, Comprehensive Agrarian
before the Regional Trial Courts, Metropolitan Reform Law of 1988; R.A. No. 7160, Local
Trial Courts, Municipal Trial Courts in Cities, Government Code of 1991; R.A. No. 7161, Tax
Municipal Trial Courts and Municipal Circuit Trial Laws Incorporated in the Revised Forestry Code
Courts involving enforcement or violations of and Other Environmental Laws (Amending the
environmental and other related laws, rules and NIRC); R.A. No. 7308, Seed Industry
regulations such as but not limited to the following: Development Act of 1992; R.A. No. 7900, High-
Value Crops Development
(a) Act No. 3572, Prohibition Against Cutting of
Tindalo, Akli, and Molave Trees; Rules of Procedure for Environmental Cases Act;
(b) P.D. No. 705, Revised Forestry Code; R.A. No. 8048, Coconut Preservation Act; R.A.
(c) P.D. No. 856, Sanitation Code; No. 8435, Agriculture and Fisheries Modernization
(d) P.D. No. 979, Marine Pollution Decree; Act of 1997; R.A. No. 9522, The Philippine
(e) P.D. No. 1067, Water Code; Archipelagic Baselines Law; R.A. No. 9593,
(f) P.D. No. 1151, Philippine Environmental Policy Renewable Energy Act of 2008; R.A. No. 9637,
of 1977; Philippine Biofuels Act; and other existing laws
(g) P.D. No. 1433, Plant Quarantine Law of 1978; that relate to the conservation, development,
(h) P.D. No. 1586, Establishing an Environmental preservation, protection and utilization of the
Impact Statement System Including Other environment and natural resources.
Environmental Management Related Measures
and for Other Purposes; Bar Exam Question 2012
(i) R.A. No. 3571, Prohibition Against the Cutting, 37. The Director of the BFAR launches an
Destroying or Injuring of Planted or Growing intensified campaign against illegal fishpen
Trees, Flowering Plants and Shrubs or Plants of operators situated in Laguna de Bay. The
Scenic Value along Public Roads, in Plazas, illegal fishpen operators file a Section 3 (e),
Parks, School Premises or in any Other Public R.A. 3019 (causing undue injury or benefit)
Ground; case against the BFAR Director before the
Sandiganbayan. The Director's best remedy
(j) R.A. No. 4850, Laguna Lake Development before Sandiganbayan is:
Authority Act; a. file a Motion to Quash based on lack of
jurisdiction over the person.

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b. file a Motion to Quash for non-exhaustion Saw Act is the Regional Trial Court, and
of administrative remedies. not the MTC, acting as an Environmental
c. file a Motion to Dismiss because the Court.
complaint is a SLAPP suit.
d. move for suspension of proceedings
because of a pre-judicial question.
SUGGESTED ANSWER: Section 3.Objectives. - The objectives of these
(c), The Director of the BFAR may file an Rules are:
answer interposing as a defense that the
case is a Strategic Lawsuit Against Public (a) To protect and advance the constitutional
Participation (SLAPP) and attach right of the people to a balanced and healthful
supporting documents, affidavits, papers ecology;
and other evidence; and, by way of
counterclaim, pray for damages, (b) To provide a simplified, speedy and
attorney‟s fees and costs of suit. The inexpensive procedure for the enforcement of
Director who is seeking the dismissal of environmental rights and duties recognized
the case must prove by substantial under the Constitution, existing laws, rules
evidence that his acts for the enforcement and regulations, and international
of environmental law are legitimate action agreements;
for the protection, preservation and
rehabilitation of the government. The (c) To introduce and adopt innovations and
party filing the action assailed as a SLAPP best practices ensuring the effective
shall prove by preponderance of evidence enforcement of remedies and redress for
that the action is not a SLAPP and is a violation of environmental laws; and
valid claim. (Rule 6, Sec. 2, A.M. No. 09-6-
8-SC, Rules of Procedure for (d) To enable the courts to monitor and exact
Environmental Cases). compliance with orders and judgments in
environmental cases.
75. The MTC, acting as an Environmental Section 4.Definition of Terms. -
Court, has original
and exclusive jurisdiction over the following, (a) By-product or derivatives means any part
taken or substance extracted from wildlife, in raw
except:
or in processed form including stuffed animals and
a. criminal offenses punishable under the
herbarium specimens.
Chain Saw Act (R.A. 9175)
b. violation of the NIPAS Law (R.A. 7586)
(b) Consent decree refers to a judicially-approved
c. violation of the Mining Laws settlement between concerned parties based on
d. violation of Anti-Pollution Laws public interest and public policy to protect and
SUGGESTED ANSWER: preserve the environment.
(a), The Metropolitan Trial Court (MTC)
exercises exclusive original jurisdiction (c) Continuing mandamus is a writ issued by a
over all offenses punishable with court in an environmental case directing any
imprisonment not exceeding six (6) years agency or instrumentality of the government or
irrespective of the amount of fine. (BP officer thereof to perform an act or series of acts
129, Sec. 32). Relative thereto, R.A. 9175 decreed by final judgment which shall remain
or otherwise known as the Chain Saw Act effective until judgment is fully satisfied.
of 2002, penalizes any person who found
to be in possession of a chain saw and (d) Environmental protection order (EPO) refers
uses the same to cut trees and timber in to an order issued by the court directing or
forest land or elsewhere except as enjoining any person or government agency to
authorized by the Department with perform or desist from performing an act in order
imprisonment of six (6) years and one (1) to protect, preserve or rehabilitate the
day to eight (8) years or a fine of not less environment.
than Thirty thousand pesos (P30,000.00)
but not more than fifty thousand pesos (e) Mineral refers to all naturally occurring
(P50,000.00) or both at the discretion of inorganic substance in solid, gas, liquid, or any
the court. Clearly, the court which has intermediate state excluding energy materials
jurisdiction over violations of the Chain

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such as coal, petroleum, natural gas, radioactive (f) Third party complaint.
materials and geothermal energy.
Section 3.Verified complaint. The verified
(f) Precautionary principle states that when complaint shall contain the names of the parties,
human activities may lead to threats of serious their addresses, the cause of action and the reliefs
and irreversible damage to the environment that is prayed for.
scientifically plausible but uncertain, actions shall
be taken to avoid or diminish that threat. The plaintiff shall attach to the verified complaint
all evidence proving or supporting the cause of
(g) Strategic lawsuit against public action consisting of the affidavits of witnesses,
participation (SLAPP) refers to an action whether documentary evidence and if possible, object
civil, criminal or administrative, brought against evidence. The affidavits shall be in question and
any person, institution or any government agency answer form and shall comply with the rules of
or local government unit or its officials and admissibility of evidence.
employees, with the intent to harass, vex, exert
undue pressure or stifle any legal recourse that The complaint shall state that it is an
such person, institution or government agency has environmental case and the law involved. The
taken or may take in the enforcement of complaint shall also include a certification against
environmental laws, protection of the environment forum shopping. If the complaint is not an
or assertion of environmental rights. environmental complaint, the presiding judge shall
refer it to the executive judge for re-raffle.
Section 4. Who may file. Any real party in

(h) Wildlife means wild forms and varieties of flora interest, including the government and juridical
and fauna, in all developmental stages including entities authorized by law, may file a civil action
those which are in captivity or are being bred or involving the enforcement or violation of any
propagated. environmental law.
Section 5.Citizen suit. Any Filipino citizen in

representation of others, including minors or
PART II generations yet unborn, may file an action to
CIVIL PROCEDURE enforce rights or obligations under environmental
laws. Upon the filing of a citizen suit, the court
RULE 2 shall issue an order which shall contain a brief
PLEADINGS AND PARTIES description of the cause of action and the reliefs
prayed for, requiring all interested parties to
Section 1. Pleadings and motions allowed. manifest their interest to intervene in the case
The pleadings and motions that may be filed are within fifteen (15) days from notice thereof. The
complaint, answer which may include compulsory plaintiff may publish the order once in a
counterclaim and cross-claim, motion for newspaper of a general circulation in the
intervention, motion for discovery and motion for Philippines or furnish all affected barangays
reconsideration of the judgment. copies of said order.
Motion for postponement, motion for new trial and Citizen suits filed under R.A. No. 8749 and R.A.
petition for relief from judgment shall be allowed in No. 9003 shall be governed by their respective
highly meritorious cases or to prevent a manifest provisions.
miscarriage of justice.
Section 6.Service of the complaint on the
Section 2.Prohibited pleadings or motions. The government or its agencies. - Upon the filing of
following pleadings or motions shall not be the complaint, the plaintiff is required to furnish the
allowed: government or the appropriate agency, although
not a party, a copy of the complaint. Proof of
(a) Motion to dismiss the complaint; service upon the government or the appropriate
(b) Motion for a bill of particulars; agency shall be attached to the complaint.
(c) Motion for extension of time to file
pleadings, except to file answer, the extension Section 7.Assignment by raffle. - If there is only
not to exceed fifteen (15) days; one (1) designated branch in a multiple-sala court,
(d) Motion to declare the defendant in default; the executive judge shall immediately refer the
(e) Reply and rejoinder; and case to said branch. If there are two (2) or more

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designated branches, the executive judge shall

conduct a special raffle on the day the complaint is Section 12.Payment of filing and other legal
filed. fees. - The payment of filing and other legal fees
by the plaintiff shall be deferred until after
Section 8.Issuance of Temporary judgment unless the plaintiff is allowed to litigate
Environmental Protection Order (TEPO). - If it as an indigent. It shall constitute a first lien on the
appears from the verified complaint with a prayer judgment award.
for the issuance of an Environmental Protection
Order (EPO) that the matter is of extreme urgency For a citizen suit, the court shall defer the payment
and the applicant will suffer grave injustice and of filing and other legal fees that shall serve as
irreparable injury, the executive judge of the first lien on the judgment award.
multiple-sala court before raffle or the presiding
judge of a single-sala court as the case may be, Section 13.Service of summons, orders and
may issue ex parte a TEPO effective for only other court processes. - The summons, orders
seventy-two (72) hours from date of the receipt of and other court processes may be served by the
the TEPO by the party or person enjoined. Within sheriff, his deputy or other proper court officer or
said period, the court where the case is assigned, for justifiable reasons, by the counsel or
shall conduct a summary hearing to determine representative of the plaintiff or any suitable
whether the TEPO may be extended until the person authorized or deputized by the court
termination of the case. issuing the summons.
The court where the case is assigned, shall Any private person who is authorized or deputized
periodically monitor the existence of acts that are by the court to serve summons, orders and other
the subject matter of the TEPO even if issued by court processes shall for that purpose be
the executive judge, and may lift the same at any considered an officer of the court.
time as circumstances may warrant.
The summons shall be served on the defendant,
The applicant shall be exempted from the posting together with a copy of an order informing all
of a bond for the issuance of a TEPO. parties that they have fifteen (15) days from the
filing of an answer, within which to avail of
Section 9.Action on motion for dissolution of interrogatories to parties under Rule 25 of the
TEPO. - The grounds for motion to dissolve a Rules of Court and request for admission by
TEPO shall be supported by affidavits of the party adverse party under Rule 26, or at their discretion,
or person enjoined which the applicant may make use of depositions under Rule 23 or other
oppose, also by affidavits. measures under Rules 27 and 28.
The TEPO may be dissolved if it appears after Should personal and substituted service fail,
hearing that its issuance or continuance would summons by publication shall be allowed. In the
cause irreparable damage to the party or person case of juridical entities, summons by publication
enjoined while the applicant may be fully shall be done by indicating the names of the
compensated for such damages as he may suffer officers or their duly authorized representatives.
and subject to the posting of a sufficient bond by
the party or person enjoined. Section 14.Verified answer. - Within fifteen (15)
days from receipt of summons, the defendant shall
Section 10.Prohibition against temporary file a verified answer to the complaint and serve a
restraining order (TRO) and preliminary copy thereof on the plaintiff. The defendant shall
injunction. - Except the Supreme Court, no court attach affidavits of witnesses, reports, studies of
can issue a TRO or writ of preliminary injunction experts and all evidence in support of the defense.
against lawful actions of government agencies that
enforce environmental laws or prevent violations Affirmative and special defenses not pleaded shall
thereof. be deemed waived, except lack of jurisdiction.
Section 11. Report on TEPO, EPO, TRO or Cross-claims and compulsory counterclaims not
preliminary injunction. - The judge shall report asserted shall be considered barred. The answer
any action taken on a TEPO, EPO, TRO or a to counterclaims or cross-claims shall be filed and
preliminary injunction, including its modification served within ten (10) days from service of the
and dissolution, to the Supreme Court, through the answer in which they are pleaded.
Office of the Court Administrator, within ten (10)
days from the action taken.

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Section 15.Effect of failure to answer. - Should agencies. Failure to comply with the required
the defendant fail to answer the complaint within contents of a pre-trial brief may be a ground for
the period provided, the court shall declare contempt.
defendant in default and upon motion of the
plaintiff, shall receive evidence ex parte and Failure to file the pre-trial brief shall have the
render judgment based thereon and the reliefs same effect as failure to appear at the pre-trial.
prayed for.
Section 3.Referral to mediation. - At the start of
RULE 3 the pre-trial conference, the court shall inquire
PRE-TRIAL from the parties if they have settled the dispute;
otherwise, the court shall immediately refer the
Section 1.Notice of pre-trial. - Within two (2) parties or their counsel, if authorized by their
days from the filing of the answer to the clients, to the Philippine Mediation Center (PMC)
counterclaim or cross-claim, if any, the branch unit for purposes of mediation. If not available, the
clerk of court shall issue a notice of the pre-trial to court shall refer the case to the clerk of court or
be held not later than one (1) month from the filing legal researcher for mediation.
of the last pleading.
Mediation must be conducted within a non-
The court shall schedule the pre-trial and set as extendible period of thirty (30) days from receipt of
many pre-trial conferences as may be necessary notice of referral to mediation.
within a period of two (2) months counted from the
date of the first pre-trial conference. The mediation report must be submitted within ten
(10) days from the expiration of the 30-day period.
Section 2.Pre-trial brief. - At least three (3) days
before the pretrial, the parties shall submit pre-trial Section 4.Preliminary conference. - If mediation
briefs containing the following: fails, the court will schedule the continuance of the
pre-trial. Before the scheduled date of
(a) A statement of their willingness to enter into an continuance, the court may refer the case to the
amicable settlement indicating the desired terms branch clerk of court for a preliminary conference
thereof or to submit the case to any of the for the following purposes:
alternative modes of dispute resolution;
(a) To assist the parties in reaching a settlement;
(b) A summary of admitted facts and proposed
stipulation of facts; (b) To mark the documents or exhibits to be
presented by the parties and copies thereof to be
(c) The legal and factual issues to be tried or attached to the records after comparison with the
resolved. For each factual issue, the parties shall originals;
state all evidence to support their positions
thereon. For each legal issue, parties shall state (c) To ascertain from the parties the undisputed
the applicable law and jurisprudence supporting facts and admissions on the genuineness and due
their respective positions thereon; execution of the documents marked as exhibits;
(d) The documents or exhibits to be presented, (d) To require the parties to submit the depositions
including depositions, answers to interrogatories taken under Rule 23 of the Rules of Court, the
and answers to written request for admission by answers to written interrogatories under Rule 25,
adverse party, stating the purpose thereof; and the answers to request for admissions by the
adverse party under Rule 26;
(e) A manifestation of their having availed of
discovery procedures or their intention to avail (e) To require the production of documents or
themselves of referral to a commissioner or panel things requested by a party under Rule 27 and the
of experts; results of the physical and mental examination of
persons under Rule 28;
(f) The number and names of the witnesses and
the substance of their affidavits; (f) To consider such other matters as may aid in
its prompt disposition;
(g) Clarificatory questions from the parties; and
(g) To record the proceedings in the "Minutes of
(h) List of cases arising out of the same facts Preliminary Conference" to be signed by both
pending before other courts or administrative parties or their counsels;

________________________________________________________________________________________________
(d) Determine if interlocutory issues are involved

(h) To mark the affidavits of witnesses which shall and resolve the same;
be in question and answer form and shall
constitute the direct examination of the witnesses; (e) Consider the adding or dropping of parties;
and
(f) Scrutinize every single allegation of the
(i) To attach the minutes together with the marked complaint, answer and other pleadings and
exhibits before the pre-trial proper. attachments thereto, and the contents of
documents and all other evidence identified and
The parties or their counsel must submit to the pre-marked during pre-trial in determining further
branch clerk of court the names, addresses and admissions;
contact numbers of the affiants.
(g) Obtain admissions based on the affidavits of
During the preliminary conference, the branch witnesses and evidence attached to the pleadings
clerk of court shall also require the parties to or submitted during pre-trial;
submit the depositions taken under Rule 23 of the
Rules of Court, the answers to written (h) Define and simplify the factual and legal issues
interrogatories under Rule 25 and the answers to arising from the pleadings and evidence.
request for admissions by the adverse party under Uncontroverted issues and frivolous claims or
Rule 26. The branch clerk of court may also defenses should be eliminated;
require the production of documents or things
requested by a party under Rule 27 and the (i) Discuss the propriety of rendering a summary
results of the physical and mental examination of judgment or a judgment based on the pleadings,
persons under Rule 28. evidence and admissions made during pre-trial;
Section 5.Pre-trial conference; consent decree. (j) Observe the Most Important Witness Rule in
- The judge shall put the parties and their counsels limiting the number of witnesses, determining the
under oath, and they shall remain under oath in all facts to be proved by each witness and fixing the
pre-trial conferences. approximate number of hours per witness;
The judge shall exert best efforts to persuade the (k) Encourage referral of the case to a trial by
parties to arrive at a settlement of the dispute. The commissioner under Rule 32 of the Rules of Court
judge may issue a consent decree approving the or to a mediator or arbitrator under any of the
agreement between the parties in accordance with alternative modes of dispute resolution governed
law, morals, public order and public policy to by the Special Rules of Court on Alternative
protect the right of the people to a balanced and Dispute Resolution;
healthful ecology.
(l) Determine the necessity of engaging the
Evidence not presented during the pre-trial, except services of a qualified expert as a friend of the
newly-discovered evidence, shall be deemed court (amicus curiae); and
waived.
(m) Ask parties to agree on the specific trial dates
Section 6.Failure to settle. - If there is no full for continuous trial, comply with the one-day
settlement, the judge shall: examination of witness rule, adhere to the case
flow chart determined by the court which shall
(a) Adopt the minutes of the preliminary contain the different stages of the proceedings up
conference as part of the pre-trial proceedings and to the promulgation of the decision and use the
confirm the markings of exhibits or substituted time frame for each stage in setting the trial dates.
photocopies and admissions on the genuineness
and due execution of documents; Section 7.Effect of failure to appear at pre-trial.
- The court shall not dismiss the complaint, except
(b) Determine if there are cases arising out of the upon repeated and unjustified failure of the plaintiff
same facts pending before other courts and order to appear. The dismissal shall be without
its consolidation if warranted; prejudice, and the court may proceed with the
counterclaim.
(c) Determine if the pleadings are in order and if
not, order the amendments if necessary; If the defendant fails to appear at the pre-trial, the
court shall receive evidence ex parte.

________________________________________________________________________________________________
Section 8.Minutes of pre-trial. - The minutes of be fully examined in one (1) day only. This
each pre-trial conference shall contain matters rule shall be strictly adhered to subject to
taken up therein, more particularly admissions of the court‟s discretion during trial on
facts and exhibits, and shall be signed by the whether or not to extend the direct
parties and their counsel. and/or cross-examination for justifiable
reasons. On the last hearing day allotted
Section 9.Pre-trial order. - Within ten (10) days for each party, he is required to make his
after the termination of the pre-trial, the court shall formal offer of evidence after the
issue a pre-trial order setting forth the actions presentation of his last witness and the
taken during the pre-trial conference, the facts opposing party is required to immediately
stipulated, the admissions made, the evidence interpose his objection thereto.
marked, the number of witnesses to be presented Thereafter, the judge shall make the
and the schedule of trial. Said order shall bind the ruling on the offer of evidence in open
parties, limit the trial to matters not disposed of court. However, the judge has the
and control the course of action during the trial. discretion to allow the offer of evidence in
writing in conformity with Section 35,
Section 10.Efforts to settle. - The court shall Rule 132. ALTERNATIVE ANSWER: FALSE.
endeavor to make the parties agree to This rule is not absolute: it will still allow
compromise or settle in accordance with law at the trial judge the discretion whether to
any stage of the proceedings before rendition of extend the direct and/or cross
judgment. examination for justifiable reasons or not.
The exercise of this discretion may still
RULE 4
result in wrangling as to the proper
TRIAL
exercise of the trial court‟s discretion,
which can delay the proceedings.
Section 1.Continuous trial. - The judge shall
conduct continuous trial which shall not exceed
two (2) months from the date of the issuance of
Section 4.Submission of case for decision;
the pre-trial order.
filing of memoranda. - After the last party has
rested its case, the court shall issue an order
Before the expiration of the two-month period, the
submitting the case for decision.
judge may ask the Supreme Court for the
extension of the trial period for justifiable cause.
The court may require the parties to submit their
respective memoranda, if possible in electronic
Section 2.Affidavits in lieu of direct
form, within a non-extendible period of thirty (30)
examination. - In lieu of direct examination,
days from the date the case is submitted for
affidavits marked during the pre-trial shall be
decision.
presented as direct examination of affiants subject
to cross-examination by the adverse party.
The court shall have a period of sixty (60) days to
decide the case from the date the case is
Section 3.One-day examination of witness rule.
submitted for decision.
- The court shall strictly adhere to the rule that a
witness has to be fully examined in one (1) day,
Section 5.Period to try and decide. - The court
subject to the court’s discretion of extending the shall have a period of one (1) year from the filing
examination for justifiable reason. After the of the complaint to try and decide the case. Before
presentation of the last witness, only oral offer of the expiration of the one-year period, the court
evidence shall be allowed, and the opposing party may petition the Supreme Court for the extension
shall immediately interpose his objections. The of the period for justifiable cause.
judge shall forthwith rule on the offer of evidence
in open court. The court shall prioritize the adjudication of
environmental cases.
Witness; Examination of Witness (2009)
No.1.[b] The One-Day Examination of witness RULE 5
Rule abbreviates court proceedings by having JUDGMENT AND EXECUTION
a witness fully examined in only one day
during trial. SUGGESTED ANSWER: Section 1.Reliefs in a citizen suit. - If warranted,
TRUE. Par. 5(i) of Supreme Court A.M. No. the court may grant to the plaintiff proper reliefs
03-1-09-SC requires that a witness has to which shall include the protection, preservation or

________________________________________________________________________________________________
rehabilitation of the environment and the payment the environment or assertion of environmental
of attorneys fees, costs of suit and other litigation rights shall be treated as a SLAPP and shall be
expenses. It may also require the violator to governed by these Rules.
submit a program of rehabilitation or restoration of
the environment, the costs of which shall be borne Section 2. SLAPP as a defense; how alleged. -
by the violator, or to contribute to a special trust In a SLAPP filed against a person involved in the
fund for that purpose subject to the control of the enforcement of environmental laws, protection of
court. the environment, or assertion of environmental
rights, the defendant may file an answer
Section 2. Judgment not stayed by appeal. - interposing as a defense that the case is a SLAPP
Any judgment directing the performance of acts for and shall be supported by documents, affidavits,
the protection, preservation or rehabilitation of the papers and other evidence; and, by way of
environment shall be executory pending appeal counterclaim, pray for damages, attorney’s fees
unless restrained by the appellate court.
and costs of suit.
Section 3.Permanent EPO; writ of continuing
The court shall direct the plaintiff or adverse party
mandamus. - In the judgment, the court may
to file an opposition showing the suit is not a
convert the TEPO to a permanent EPO or issue a
SLAPP, attaching evidence in support thereof,
writ of continuing mandamus directing the
within a non-extendible period of five (5) days from
performance of acts which shall be effective until
receipt of notice that an answer has been filed.
the judgment is fully satisfied.
The defense of a SLAPP shall be set for hearing
The court may, by itself or through the appropriate
by the court after issuance of the order to file an
government agency, monitor the execution of the
opposition within fifteen (15) days from filing of the
judgment and require the party concerned to
comment or the lapse of the period.
submit written reports on a quarterly basis or
sooner as may be necessary, detailing the
Section 3.Summary hearing. - The hearing on
progress of the execution and satisfaction of the
the defense of a SLAPP shall be summary in
judgment. The other party may, at its option,
nature. The parties must submit all available
submit its comments or observations on the
evidence in support of their respective positions.
execution of the judgment.
The party seeking the dismissal of the case must
prove by substantial evidence that his act for the
Section 4.Monitoring of compliance with
enforcement of environmental law is a legitimate
judgment and orders of the court by a
action for the protection, preservation and
commissioner. - The court may motu proprio, or
rehabilitation of the environment. The party filing
upon motion of the prevailing party, order that the
the action assailed as a SLAPP shall prove by
enforcement of the judgment or order be referred
preponderance of evidence that the action is not a
to a commissioner to be appointed by the court.
SLAPP and is a valid claim.
The commissioner shall file with the court written
progress reports on a quarterly basis or more
Section 4.Resolution of the defense of a
frequently when necessary.
SLAPP. - The affirmative defense of a SLAPP
shall be resolved within thirty (30) days after the
Section 5. Return of writ of execution. - The
summary hearing. If the court dismisses the
process of execution shall terminate upon a
sufficient showing that the decision or order has action, the court may award damages, attorney’s
been implemented to the satisfaction of the court fees and costs of suit under a counterclaim if such
in accordance with Section 14, Rule 39 of the has been filed. The dismissal shall be with
Rules of Court. prejudice.
RULE 6 If the court rejects the defense of a SLAPP, the

STRATEGIC LAWSUIT AGAINST PUBLIC evidence adduced during the summary hearing
PARTICIPATION shall be treated as evidence of the parties on the
merits of the case. The action shall proceed in
Section 1.Strategic lawsuit against public accordance with the Rules of Court.
participation (SLAPP). - A legal action filed to
harass, vex, exert undue pressure or stifle any PART III
legal recourse that any person, institution or the SPECIAL CIVIL ACTIONS
government has taken or may take in the
enforcement of environmental laws, protection of RULE 7

________________________________________________________________________________________________
WRIT OF KALIKASAN
Section 3.Where to file. - The petition shall be
Section 1.Nature of the writ. - The writ is a filed with the Supreme Court or with any of the
remedy available to a natural or juridical person, stations of the Court of Appeals.
entity authorized by law, people’s organization,
Section 4. No docket fees. - The petitioner shall
non-governmental organization, or any public
be exempt from the payment of docket fees.
interest group accredited by or registered with any
government agency, on behalf of persons whose
Section 5.Issuance of the writ. - Within three (3)
constitutional right to a balanced and healthful
days from the date of filing of the petition, if the
ecology is violated, or threatened with violation by
petition is sufficient in form and substance, the
an unlawful act or omission of a public official or
court shall give an order: (a) issuing the writ; and
employee, or private individual or entity, involving
(b) requiring the respondent to file a verified return
environmental damage of such magnitude as to
as provided in Section 8 of this Rule. The clerk of
prejudice the life, health or property of inhabitants
court shall forthwith issue the writ under the seal
in two or more cities or provinces.
of the court including the issuance of a cease and
desist order and other temporary reliefs effective
NATURE OF THE WRIT
until further order.
1) Preliminary Mandatory Injunction;
2) Preliminary Prohibitory Injunction;
Section 6. How the writ is served. - The writ
3) Special Civil Action
shall be served upon the respondent by a court
officer or any person deputized by the court, who
Section 2.Contents of the petition. - The verified
shall retain a copy on which to make a return of
petition shall contain the following:
service. In case the writ cannot be served
personally, the rule on substituted service shall
(a) The personal circumstances of the petitioner;
apply.
(b) The name and personal circumstances of the
Section 7.Penalty for refusing to issue or serve
respondent or if the name and personal
the writ. - A clerk of court who unduly delays or
circumstances are unknown and uncertain, the
refuses to issue the writ after its allowance or a
respondent may be described by an assumed
court officer or deputized person who unduly
appellation;
delays or refuses to serve the same shall be
punished by the court for contempt without
(c) The environmental law, rule or regulation
prejudice to other civil, criminal or administrative
violated or threatened to be violated, the act or
actions.
omission complained of, and the environmental
damage of such magnitude as to prejudice the life,
Section 8.Return of respondent; contents. -
health or property of inhabitants in two or more
Within a non-extendible period of ten (10) days
cities or provinces.
after service of the writ, the respondent shall file a
verified return which shall contain all defenses to
(d) All relevant and material evidence consisting of
show that respondent did not violate or threaten to
the affidavits of witnesses, documentary evidence,
violate, or allow the violation of any environmental
scientific or other expert studies, and if possible,
law, rule or regulation or commit any act resulting
object evidence;
to environmental damage of such magnitude as to
prejudice the life, health or property of inhabitants
(e) The certification of petitioner under oath that:
(1) petitioner has not commenced any action or
filed any claim involving the same issues in any
All defenses not raised in the return shall be
court, tribunal or quasi-judicial agency, and no
deemed waived.
such other action or claim is pending therein; (2) if
there is such other pending action or claim, a
The return shall include affidavits of witnesses,
complete statement of its present status; (3) if
documentary evidence, scientific or other expert
petitioner should learn that the same or similar
studies, and if possible, object evidence, in
action or claim has been filed or is pending,
support of the defense of the respondent.
petitioner shall report to the court that fact within
five (5) days therefrom; and
A general denial of allegations in the petition shall
be considered as an admission thereof.
(f) The reliefs prayed for which may include a
prayer for the issuance of a TEPO.

________________________________________________________________________________________________
Section 9.Prohibited pleadings and motions. - production order is necessary to establish the
The following pleadings and motions are magnitude of the violation or the threat as to
prohibited: prejudice the life, health or property of inhabitants
(a) Motion to dismiss;
(b) Motion for extension of time to file return; After hearing, the court may order any person in
(c) Motion for postponement; possession, custody or control of any designated
(d) Motion for a bill of particulars; documents, papers, books, accounts, letters,
(e) Counterclaim or cross-claim; photographs, objects or tangible things, or objects
(f) Third-party complaint; in digitized or electronic form, which constitute or
(g) Reply; and contain evidence relevant to the petition or the
(h) Motion to declare respondent in default. return, to produce and permit their inspection,
copying or photographing by or on behalf of the
Section 10.Effect of failure to file return. - In movant.
case the respondent fails to file a return, the court
shall proceed to hear the petition ex parte. The production order shall specify the person or
persons authorized to make the production and
Section 11.Hearing. - Upon receipt of the return the date, time, place and manner of making the
of the respondent, the court may call a preliminary inspection or production and may prescribe other
conference to simplify the issues, determine the conditions to protect the constitutional rights of all
possibility of obtaining stipulations or admissions parties.
from the parties, and set the petition for hearing.
Section 13.Contempt. - The court may after

The hearing including the preliminary conference hearing punish the respondent who refuses or
shall not extend beyond sixty (60) days and shall unduly delays the filing of a return, or who makes
be given the same priority as petitions for the writs a false return, or any person who disobeys or
of habeas corpus, amparo and habeas data. resists a lawful process or order of the court for
indirect contempt under Rule 71 of the Rules of
Section 12.Discovery Measures. - A party may Court.
file a verified motion for the following reliefs:
Section 14.Submission of case for decision;
(a) Ocular Inspection order ; The motion must filing of memoranda. - After hearing, the court
show that an ocular inspection order is necessary shall issue an order submitting the case for
to establish the magnitude of the violation or the decision. The court may require the filing of
threat as to prejudice the life, health or property of memoranda and if possible, in its electronic form,
inhabitants in two or more cities or provinces. It within a non-extendible period of thirty (30) days
shall state in detail the place or places to be from the date the petition is submitted for decision.
inspected. It shall be supported by affidavits of
witnesses having personal knowledge of the Section 15.Judgment. - Within sixty (60) days
violation or threatened violation of environmental from the time the petition is submitted for decision,
law. the court shall render judgment granting or
denying the privilege of the writ of kalikasan.
After hearing, the court may order any person in
possession or control of a designated land or The reliefs that may be granted under the writ are
other property to permit entry for the purpose of the following:
inspecting or
(a) Directing respondent to permanently cease
photographing the property or any relevant object and desist from committing acts or neglecting the
or operation thereon. performance of a duty in violation of environmental
laws resulting in environmental destruction or
The order shall specify the person or persons damage;
authorized to make the inspection and the date,
time, place and manner of making the inspection (b) Directing the respondent public official,
and may prescribe other conditions to protect the government agency, private person or entity to
constitutional rights of all parties. protect, preserve, rehabilitate or restore the
environment;
(b) Production or inspection of documents or
things order; The motion must show that a

________________________________________________________________________________________________
(c) Directing the respondent public official, Note: Writ of Continuing Mandamus originates
government agency, private person or entity to from India (Review Lecture)
monitor strict compliance with the decision and
orders of the court; Section 2.Where to file the petition. - The
petition shall be filed with the Regional Trial Court
(d) Directing the respondent public official, exercising jurisdiction over the territory where the
government agency, or private person or entity to actionable neglect or omission occurred or with
make periodic reports on the execution of the final the Court of Appeals or the Supreme Court.
judgment; and
Section 3. No docket fees. - The petitioner shall
(e) Such other reliefs which relate to the right of be exempt from the payment of docket fees.
the people to a balanced and healthful ecology or
to the protection, preservation, rehabilitation or Section 4.Order to comment. - If the petition is
restoration of the sufficient in form and substance, the court shall
issue the writ and require the respondent to
environment, except the award of damages to comment on the petition within ten (10) days from
individual petitioners. receipt of a copy thereof. Such order shall be
served on the respondents in such manner as the
Section 16.Appeal. - Within fifteen (15) days from court may direct, together with a copy of the
the date of notice of the adverse judgment or petition and any annexes thereto.
denial of motion for reconsideration, any party
may appeal to the Supreme Court under Rule 45 Section 5.Expediting proceedings; TEPO. - The
of the Rules of Court. The appeal may raise court in which the petition is filed may issue such
questions of fact. orders to expedite the proceedings, and it may
also grant a TEPO for the preservation of the
rights of the parties pending such proceedings.
Section 17.Institution of separate actions. - The
filing of a petition for the issuance of the writ of Section 6.Proceedings after comment is filed. -
kalikasan shall not preclude the filing of separate After the comment is filed or the time for the filing
civil, criminal or administrative actions. thereof has expired, the court may hear the case
which shall be summary in nature or require the
RULE 8 parties to submit memoranda. The petition shall
WRIT OF CONTINUING MANDAMUS be resolved without delay within sixty (60) days
from the date of the submission of the petition for
Section 1.Petition for continuing mandamus. - resolution.
When any agency or instrumentality of the
government or officer thereof unlawfully neglects Section 7.Judgment. - If warranted, the court
the performance of an act which the law shall grant the privilege of the writ of continuing
specifically enjoins as a duty resulting from an mandamus requiring respondent to perform an act
office, trust or station in connection with the or series of acts until the judgment is fully satisfied
enforcement or violation of an environmental law and to grant such other reliefs as may be
rule or regulation or a right therein, or unlawfully warranted resulting from the wrongful or illegal
excludes another from the use or enjoyment of acts of the respondent. The court shall require the
such right and there is no other plain, speedy and respondent to submit periodic reports detailing the
adequate remedy in the ordinary course of law, progress and execution of the judgment, and the
the person aggrieved thereby may file a verified court may, by itself or through a commissioner or
petition in the proper court, alleging the facts with the appropriate government agency, evaluate and
certainty, attaching thereto supporting evidence, monitor compliance. The petitioner may submit its
specifying that the petition concerns an comments or observations on the execution of the
environmental law, rule or regulation, and praying judgment.
that judgment be rendered commanding the
respondent to do an act or series of acts until the Section 8. Return of the writ. - The periodic
judgment is fully satisfied, and to pay damages reports submitted by the respondent detailing
sustained by the petitioner by reason of the compliance with the judgment shall be contained
malicious neglect to perform the duties of the in partial returns of the writ.
respondent, under the law, rules or regulations.
The petition shall also contain a sworn certification Upon full satisfaction of the judgment, a final
of non-forum shopping. return of the writ shall be made to the court by the
respondent. If the court finds that the judgment

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JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 401

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 402

The Bitoon Doctrine. Exhaustion of judicial EVIDENCE OF GUILT IS STRONG WHEN

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 403

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JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 405

Section 21. Forfeiture of bond. — When the

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 406

Section 22. Cancellation of bail. — Upon WITHDRAWAL OR APPLICATION FOR

BONUS NOTES: Section 26. Bail not a bar to objections on

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 407

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 408

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 410

Exceptions: Immunity statutes such as:

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 411

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 412

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 413

have waived her right against self-

Exception to the right of confrontation: REQUISITES FOR COMPELLING THE

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 414

PERIOD FOR THE ARRAIGNMENT OF THE

Exceptions: Note: But the judge can ask clarificatory

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 416

(b) The accused must be present at the

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B. When the accused is not under

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can be had without the need of submission of

EFFECT OF IMPROVIDENT PLEA Section 6. Duty of court to inform accused of

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 420

3. If he desires, but is unable to employ one, As long as the counsel de oficio

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RULE 117 merits as it would impair the right of the accused

(f) That more than one offense is charged except

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JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 425

based on this ground. The charge so as to enable him to prepare his

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 426

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 427

those punishable by arresto mayor, which shall

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 428

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Note: The prosecution may elevate to the higher

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JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 431

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1. The complaint or information or other Violation of the prosecution’s right to due

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 433

Note: Reading of the dispositive 8. Separate offenses under RPC.

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 434

There is no complex crime where one offense is

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JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 436

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 437

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 438

The omission of signature of the accused and his Trial

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(a) Any period of delay resulting from other

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 440