QuAMTO (1987-2019)

Frisk” rule. A stop-and-frisk situation must precede Whereas, a Warrant to Examine Computer Data
a warrantless arrest, be limited to the person’s outer (WECD), upon acquiring possession of a computer
clothing, and should be grounded upon a genuine device or computer system via a lawful warrantless
reason, in the light of the police officers experience arrest or by any other lawful method, law
and surrounding conditions, to warrant the belief enforcement authorities shall first apply for a
that the person detained has weapons concealed warrant before searching the said computer device
about him. (Valdez v. People, G.R. No. 170180, or computer system for the purpose of obtaining for
November 23, 2007) forensic examination of the computer data
contained therein. (Section 6.9, A.M. No. 17-11-03-
The “stop-and-frisk” search should be used “when SC)
dealing with rapidly unfolding and potentially
criminal situation in the city streets where
unarguably there is no time to secure a search EVIDENCE
warrant.” “Stop-and-frisk” searches (sometimes
referred to as Terry searches) are necessary for law
enforcement, that is, law enforcers should be given GENERAL PRINCIPLES
the legal arsenal to prevent the commission of the
offenses. This should be balanced, however, with Q: Legislative facts and adjudicative facts. (2004
the need to protect the privacy of citizens in Bar)
accordance with Article III, Section 2 of the
Constitution (People v. Cogaed, G.R. No. 200334, July A: Legislative facts refer to facts mentioned in a
30, 2014). statue or in an explanatory note, while adjudicative
facts are facts found in a court decision.
b. If Hercules opts to file a civil action
against the police officer, will he have a Q: Give the reasons underlying the adoption of
cause of action? (2015 Bar) the following rules of evidence:

A: Yes. Hercules has a cause of action to file civil a. Dead Man Rule
action against the police officer under Article 32(4)
in relation to Article 2219(6) and (10) of the New If death has closed the lips of one party, the policy of
Civil Code, which provides that a police officer may the law is to close the lips of the other (Goni v. Court
be liable for damages when the right to be secure in of Appeals, L-77434, September 23, 1986). This is to
one’s person, house, papers and effects against prevent the temptation to perjury because death
unreasonable searches and seizures is impaired. has already sealed the lips of the party.
The indemnity includes moral damages. Exemplary
damages may also be adjudicated. (Galvante v. b. Parol Evidence Rule
Casimiro, G.R. No. 162808, April 22, 2008)
It is designed to give certainty to a transaction
Cybercrime warrants which has been reduced to writing, because written
evidence is much more certain and accurate than
Q: Distinguish the following: that which rests on fleeting memory only (Francisco,
Revised Rules of Court)
Warrant to Search, Seize, and Examine
Computer Data (WSSECD) and Warrant to c. xxx
Examine Computer Data (WECD) (2019 Bar)
d. The rule against the admission of
A: A Warrant to Search, Seize and Examine Compute illegally obtained extrajudicial
Data (WSSECD) is an order in writing issued in the confession.
name of the people of the Philippines, signed by a
judge, upon application of law enforcement An illegally obtained extrajudicial confession nulli-
authorities, authorizing the latter to search the fies the intrinsic validity of the confession and
particular place for items to be seized and/or renders it unreliable as evidence of the truth
examined. (Section 6.1, A.M. No. 17-11-03-SC) (Moran, Volume 5. p. 257). It is the fruit of a
poisonous tree.

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e. The rule against the admission of an
offer of compromise in civil cases (1997 A: The sworn statement is not admissible in
Bar) evidence because it was taken without informing
him of his custodial rights and without the
The reason for the rule against the admission of an assistance of counsel which should be independent
offer of compromise in civil case as an admission of and competent and preferably of the choice of the
any liability is that parties are encouraged to enter accused. (People v. Januario, G.R. No. 98252,
into compromises. Courts should endeavor to February 7, 1997)
persuade the litigants in a civil case to agree upon
some fair compromise (Art. 2029, NCC). During pre- c. Waiver of Right to Counsel of X. (1998
trial, courts should direct the parties to consider the Bar)
possibility of an amicable settlement. (Sec. 2[a], Rule
18) A: The waiver of his right to counsel is not
admissible because it was made without the
Q: Answer the following briefly: assistance of counsel of his choice. (People v. Gomez,
G.R. No. 101817, March 26, 1997)
What elements should concur for circumstantial
evidence to be sufficient for conviction? (2017 Q: Dominique was accused of committing a
Bar) violation of the Human Security Act. He was
detained incommunicado, deprived of sleep,
A: The following elements should concur for and subjected to water torture. He later
circumstantial evidence to be sufficient for allegedly confessed his guilt via an affidavit.
conviction: After trial, he was acquitted on the ground that
his confession was obtained through torture,
(a) There is more than one circumstance; hence, inadmissible as evidence. In a
(b) The facts from which the inferences are subsequent criminal case for torture against
derived are proven; those who deprived him of sleep and subjected
(c) The combination of all the circumstances is him to water torture, Dominique was asked to
such as to produce a conviction beyond testify and to, among other things, identify his
reasonable doubt (Sec. 4, Rule 133). above-said affidavit of confession. As he was
about to identify the affidavit, the defense
Admissibility of evidence counsel objected on the ground that the affidavit
is a fruit of a poisonous tree. Can the objection
Q: The barangay captain reported to the police be sustained? Explain. (2010 Bar)
that X was illegally keeping in his house in the
barangay an Armalite M16 rifle. On the strength A: No, the objection may not be sustained on the
of that information, the police conducted a ground stated, because the affiant was only to
search of the house of X and indeed found said identify the affidavit which is not yet being offered
rifle. The police raiders seized the rifle and in evidence. The doctrine of the fruit of the
brought X to the police station. During the poisonous tree can only be invoked by Domingo as
investigation, he voluntarily signed a Sworn his defense in the crime of violation of Human
Statement that he was possessing said rifle Security Act filed against him but not by the accused
without license or authority to possess, and a in a torture case filed by him. In the instant case, the
Waiver of Right to Counsel, individually rule on presentation of the affidavit cannot be objected to
the admissibility in evidence of the: by the defense counsel on the ground that it is a fruit
of the poisonous tree because the same is used in
a. Rifle; Domingo’s favour.

A: The rifle is not admissible in evidence because it Q: Sgt. GR of WPD arrested two NPA suspects,
was seized without a proper search warrant. A Max and Brix, both aged 22, in the act of robbing
warrantless search is not justified. There was time a grocery in Ermita. As he handcuffed them he
to secure a search warrant. (People v. Encicada G.R. noted a pistol tucked in Max’s waist and a dagger
No. 116720, October 2, 1997) hidden under Brix’s shirt, which he promptly
confiscated. At the police investigation room,
b. Sworn Statement; (2008 Bar) and Max and Brix orally waived their right to counsel

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and to remain silent. Then under oath, they A: Burden of proof is the duty of a party to present
freely answered questions asked by the police evidence on the facts in issue necessary to establish
desk officer. Thereafter they signed their sworn his claim or defense by the amount of evidence
statements before the police captain, a lawyer. required by law (Sec. 1, Rule 131), while burden of
Max admitted his part in the robbery, his evidence is the duty of a party to go forward with
possession of a pistol and his ownership of the the evidence to overthrow prima facie evidence
packet of shabu found in his pocket. Brix established against him (Bautista v. Sarmiento, G.R.
admitted his role in the robbery and his No. L-45137 September 23, 1985).
possession of a dagger. But they denied being
NPA hit men. In due course, proper charges were Quantum of evidence
filed by the City Prosecutor against both
arrestees before the MM RTC. May the written Q: Distinguish preponderance of the evidence
statements signed and sworn to by Max and Brix from substantial evidence. (2003 Bar)
be admitted by the trial court as evidence for the
prosecution? Reason. (2004 Bar) A: Preponderance of evidence means that the
evidence as a whole adduced by one side is superior
A: No. The sworn written statements of Max and to that of the other. This is applicable in civil cases.
Brix may not be admitted in evidence, because they (Sec. 1, Rule 133; Municipality of Moncada v.
were not assisted by counsel, even if the police Cajuigan, G.R. No. L-7048, January 12, 1912)
captain before whom they signed the statements
was a lawyer, nor can he be considered as an Substantial evidence is that amount of relevant
independent counsel. The waiver of the right to a evidence which a reasonable mind might accept as
cousel must be done in writing and in the presence adequate to justify a conclusion. This is applicable in
of independent counsel. (People v. Mahinay, G.R. No. cases filed before administrative or quasi-judicial
122485, February 1, 1999; People v. Espiritu, G.R. No. bodies (Sec. 5, Rule 133).
128287, February 2, 1999)
JUDICIAL NOTICE AND JUDICIAL ADMISSIONS
Q: Defendant was declared in default by the RTC.
Plaintiff was allowed to present evidence in Q: Give three instances when a Philippine Court
support of his complaint. Photocopies of official can take judicial notice of a foreign law. (1997
receipts and original copies of affidavits were Bar)
presented in court, identified by plaintiff on the
witness stand and marked as exhibits. Said A: The three instances when a Philippine court can
documents were offered by plaintiff and take judicial notice of a foreign law are: (1) when the
admitted in evidence by the court on the basis of Philippine courts are evidently familiar with the
which the RTC rendered judgment in favor of the foreign law (Moran, 1980); (2) when the foreign law
plaintiff, pursuant to the relief prayed for. Upon refers to the law of nations (Sec. 1, Rule 129) and, (3)
receipt of judgment, defendant appeals to the when it refers to a published treatise, periodical or
Court of Appeals claiming that the judgment is pamphlet on the subject of law if the court takes
not valid because the RTC based its judgment on judicial notice of the fact that the writer thereof is
mere photocopies and affidavits of persons not recognized in his profession or calling as expert on
presented in court. Is the claim valid? Explain. the subject. (Sec. 4[5], Rule 130)
(2000 Bar)
Q: How do you prove a written foreign law?
A: The claim of defendant is valid because the court (1997 Bar)
received evidence which it can order in its own
discretion, in which case the evidence of the plaintiff A: A written foreign law may be evidenced by an
must pass the basic requirements of admissibility. official publication thereof or by a copy attested by
the officer having the legal custody of the record, or
Burden of proof and burden of evidence by his deputy, and accompanied, if the record is not
kept in the Philippines, with a certificate that such
Q: Distinguish Burden of proof and burden of officer has the custody, if the office in which the
evidence. (2004 Bar) record is kept is in a foreign country, the certificate
may be made by a secretary of the embassy or
legation, consul general, consul, vice-consul, or

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consular agent or by any officer in the foreign A: In prosecutions involving narcotics and other
service of the Philippines stationed in the foreign illegal substances, the substance itself constitutes
country in which the record is kept, and part of the corpus delicti of the offense and the fact
authenticated by the seal of his office. (Sec. 24, Rule of its existence is vital to sustain a judgment of
132, Zalamea v. Court of Appeals, G.R. No. 104235 conviction beyond reasonable doubt. The chain of
November 18, 1993) custody requirement is essential to ensure that
doubts regarding the identity of the evidence are
Q: Suppose a foreign law was pleaded as part of removed through the monitoring and tracking of the
the defense of defendant but no evidence was movements of the seized drugs from the accused, to
presented to prove the existence of said law, the police, tothe forensic chemist, and finally to the
what is the presumption to be taken by the court court (People v. Sitco, G.R. No. 178202, May 14, 2010).
as to the wordings of said law? (1997 Bar) The failure to establish, through convincing proof,
that the integrity of the seized items has been
A: The presumption is that the wordings of the adequately preserved through an unbroken chain of
foreign law are the same as the local law (Northwest custody is enough to engender reasonable doubt on
Orient Airlines v. Court of Appeals,G.R. No. 112573, the guilt of an accused. (People v. De Guzman y
February 9, 1995; Moran, 1980; Lim v. Collector of Danzil, G.R. No.186498, March 26, 2010)
Customs, G.R. No. L-11759, March 16, 1917). This is
known as the processual presumption. DNA Evidence

OBJECT (REAL) EVIDENCE Q: In a prosecution for rape, the defense relied
on Deoxyribonucleic Acid (DNA) evidence
Chain of custody, in relation to Section 21 of the showing that the semen found in the private part
Comprehensive Dangerous Drugs Act of 2002 of the victim was not identical with that of the
accused. As private prosecutor, how will you
Q: At the trial of Ace for violation of the dispute the veracity and accuracy of the results
Dangerous Drugs Act, the prosecution offers in of the DNA evidence? (2010 Bar)
evidence a photocopy of the marked P100.00
bills used in the “buy-bust” operation. Ace A: As private prosecutor, I shall try to discredit the
objects to the introduction of the photocopy on results of the DNA test by questioning and possibly
the ground that the Best Evidence Rule prohibits impugning the integrity of the DNA profile by
the introduction of secondary evidence in lieu of showing a flaw/error in obtaining the biological
the original. sample, or in the chain of custody of the biological
sample obtained; the testing methodology
a. Is the photocopy real (object) evidence employed; the scientific standard observed; the
or documentary evidence? forensic DNA laboratory which conducted the test;
and the qualification, training and experience of the
A: The photocopy of the marked bills is real (object) forensic laboratory personnel who conducted the
evidence and not documentary evidence, because DNA testing.
the marked bills are real evidence.
Q: At the Public Attorney's Office station in
b. Is the photocopy admissible in Taguig where you are assigned, your work
evidence? (1994 Bar) requires you to act as public defender at the
local Regional Trial Court and to handle cases
A: Yes, the photocopy is admissible in evidence, involving indigents.
because the best evidence rule does not apply to
object or real evidence. (People v. Tandoy, G.R. No. Still in another case, this time for illegal
80505, December 4, 1990) possession of dangerous drugs, the prosecution
has rested but you saw from the records that the
Q: Discuss the “chain of custody” principle with illegal substance allegedly involved has not
respect to evidence seized under R.A. 9165 or been identified by any of the prosecution
the Comprehensive Dangerous Drugs Act of witnesses nor has it been the subject of any
2002. (2012 Bar) stipulation. Should you now proceed post haste
to the presentation of defense evidence or
consider some other remedy? Explain the

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 QuAMTO (1987-2019)
remedial steps you propose to undertake. (2013 submission of position papers, the evidence
Bar) submitted with the position paper must be
admissible in evidence (Sec. 9, Revised Rule of
A: I will first file a motion for leave to file demurrer Summary Procedure). Photocopies of official
to evidence within five (5) days from the time the receipts and affidavits are not admissible without
prosecution rested its case. If the same is granted, proof of loss or destruction of the original (Sec. 3,
then I will file a demurrer to evidence within ten Rule 130).
(10) days from notice on the ground of insufficiency
of evidence of the prosecution (Sec. 23, Rule 119). Q: Police officers arrested Mr. Druggie in a buy-
bust operation and confiscated from him 10
In People v. De Guzman (G.R. No. 186498, March 26, sachets of shabu and several marked genuine
2010), the Supreme Court held that in prosecution peso bills worth P5,000.00 used as the buy-bust
for violation of the dangerous Drugs Act, the money during the buy-bust operation. At the
existence of the dangerous drug is a condition sine trial of Mr. Druggie for violation of R.A. No. 9165
qua non for conviction. The dangerous drug is the (Comprehensive Dangerous Drug Act of 2002),
very corpus delicti of the crime. The identity of the the Prosecution offered in evidence, among
prohibited drug must be established with moral others, photocopies of the confiscated marked
certainty. genuine peso bills. The photocopies were
offered to prove that Mr. Druggie had engaged at
DOCUMENTARY EVIDENCE the time of his arrest in the illegal selling of
dangerous drugs. Invoking the Best Evidence
Q: May a private document be offered, and Rule, Atty. Maya Bang, the defense counsel,
admitted in evidence both as documentary objected to the admissibility of the photocopies
evidence and as object evidence? Explain (2005 of the confiscated marked genuine peso bills.
Bar) Should the trial judge sustain the objection of
the defense counsel? Briefly explain your
A: Yes. A private document may be offered and answer. (2017 Bar)
admitted in evidence both as documentary evidence
and as object evidence. A document can also be A: No, the trial judge should not sustain the
considered as an object for purposes of a case. objection that invokes the best evidence rule (now
the “original document rule”). The Supreme Court
Objects as evidence are those addressed to the has held that the best evidence rule applies only to
senses of the court (Sec. 1, Rule 130) Documents as documentary evidence, not to object or testimonial
evidence consist of writings, recordings, evidence. Here, the marked money is object not
photographs or any material containing letters, documentary evidence since it is being offered to
words, sounds, numbers, figures, symbols, or their prove not its contents but its existence and use in
equivalent, or other modes of written expression off the buy-bust operation. (People v. Tandoy, G.R. No.
ered as proof of their contents. Photographs include 80505, December 4, 1990)
still pictures, drawings, stored images, x-ray films,
motion pictures or videos. (Sec. 2, Rule 130; Q: In a case for specific performance and
Answered under the 2019 Amendments to the Revised damages, plaintiff Q presented photocopies of
Rule on Evidence) the contracts he had executed with defendant R
for the purpose of establishing their existence.
Original Document Rule Defendant R's counsel objected to the admission
of said photocopies, invoking the best evidence
Q: If the photocopies of official receipts and rule.
photocopies of affidavits were attached to the
position paper submitted by plaintiff in an a. Should the objection of defendant R's
action for unlawful detainer filed with Municipal counsel be sustained? Explain.
Trial Court on which basis the court rendered
judgment in favor of plaintiff? Explain. (2000 A: No. The best evidence rule (now the Original
Bar) Document Rule) applies only when the content of
the document is the subject of the inquiry. Where
A: The claim of defendant is valid, because although the issue is only as to whether such document was
summary procedure requires merely the actually executed, or exists, or on the circumstances

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relevant to or surrounding its execution, the best thee Rules (Sec. 2, Rule 3, A.M. 01-7-01-SC). The
evidence rule does not apply and testimonial authenticity of any private electronic document
evidence is admissible. Any other substitutionary must be proved by evidence that it had been
evidence is likewise admissible without need to digitally signed and other appropriate security
account for the original. measures have been applied. (Sec. 2, Rule 5, A.M. 01-
7-01-SC)
b. Assuming that the best evidence rule
applies, under what circumstances will Q: When is an electronic evidence regarded as
the photocopies be admissible in being the equivalent of an original document
evidence? (2019 Bar) under the Best Evidence Rule? (2003 Bar)

A: If a party desires to present photocopies of the A: An electronic document shall be regarded as the
original documents, he must first establish that the equivalent of an original document under the Best
presentation of photocopies is justified under Evidence Rule if it is a printout or output readable
Section 3(a), (b), and/or (d), Rule 130. He must by sight or other means, shown to reflect the data
establish the presence of all the elements under accurately. (Sec. 1, Rule 4, A.M. 01-7-01-SC)
these provisions. The provision states that when the
subject of inquiry is the contents of a document, Parol Evidence Rule
writing, recording, photograph or other record, no
evidence is admissible other than the original Q: Pedro filed a complaint against Lucio for the
document itself, except in the following cases: recovery of a sum of money based on a
promissory note executed by Lucio. In his
(a) When the original is lost or destroyed, or complaint, Pedro alleged that although the
cannot be produced in court, without bad promissory note says that it is payable within
faith on the part of the offeror; 120 days, the truth is that the note is payable
(b) When the original is in the custody or under immediately after 90 days but that if Pedro is
the control of the party against whom the willing, he may upon request of Lucio give the
evidence is offered, and the latter fails to latter up to 120 days to pay the note. During the
produce it after reasonable notice, or the hearing, Pedro testified that the truth is that the
original cannot be obtained by local judicial agreement between him and Lucio is for the
processes or procedures; latter to pay immediately after ninety day’s
time. Also, since the original note was with Lucio
x x x x and the latter would not surrender to Pedro the
original note which Lucio kept in a place about
(d) When the original is a public record in one day’s trip from where he received the notice
the custody of a public officer or is recorded to produce the note and in spite of such notice to
in a public office. produce the same within six hours from receipt
of such notice, Lucio failed to do so. Pedro
presented a copy of such the note which was
Electronic Evidence executed at the same time as the original and
with identical contents.
Q: State the rule on the admissibility of an
electronic evidence. (2003 Bar) a. Over the objection of Lucio, will Pedro
be allowed to testify as to the true
A: Whenever a rule of evidence refers to the term agreement or contents of the
writing, document, record, instrument, promissory note? Why?
memorandum or any other form of writing, such
term shall be deemed to include an electronic A: Yes, because Pedro has alleged in his complaint
document as defined in the Rules. (Sec. 1, Rule 3, A.M. that the promissory note does not express the true
01-7-01-SC) intent and agreement of the parties. This is an
exception to the parol evidence rule. (Sec. 9[b], Rule
An electronic document is admissible in evidence if 130, now Sec. 10[b], Rule 130)
it complies with the rules on admissibility
prescribed by the Rules of Court and related laws b. Over the objection of Lucio, can Pedro
and is authenticated in the manner prescribed by present a copy of promissory note and

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 QuAMTO (1987-2019)
have it admitted as valid evidence in his just be questioned about a conference they had
favor? Why? (2001 Bar) with the barangay captain, a matter which is not
confidential in nature. The trial court ruled in
A: Yes, the copy in the possession of Pedro is a favor of Ody. Was the ruling proper? Will you
duplicate original, being a counterpart produced by answer be the same if the matters to be testified
the same impression as the original (Sec. 4[b] Rule on were known to Baby or acquired by her prior
130). Moreover, the failure of Lucio to produce the to her marriage to Cesar? Explain (1998, 2000,
original of the note is excusable because he was not 2004 Bar)
given reasonable notice, as requirement under the
Rules before secondary evidence may be presented. A: No. Under the Rules, a wife cannot be examined
(Sec. 6 Rule 130; Answered under the 2019 for or against her husband without his consent,
Amendments to the Revised Rule on Evidence) except in civil cases by one against the other, or in a
criminal case for a crime committed by one against
Authentication and proof of documents the other. Since the case was filed by Ody against the
spouses Cesar and Baby, Baby cannot be compelled
Q: X states on direct examination that he once to testify against Cesar without his consent.
knew the facts being asked but he cannot recall (Lezama v. Rodriguez, G.R. No. L-25643, June 27,
them now. When handed a written record of the 1968)
facts he testifies that the facts are correctly
stated, but that he has never seen the writing Q: On March 12, 2008, Mabini was charged with
before. Is the writing admissible as past Murder for fatally stabbing Emilio. To prove the
recollection recorded? Explain. (1996 Bar) qualifying circumstance of evident
premeditation, the prosecution introduced on
A: No, because for the written record to be December 11, 2009 a text message, which
admissible as past recollection recorded, it must Mabini’s estranged wife Gregoria had sent to
have been written or recorded by X or under his Emilio on the eve of his death, reading: "Honey,
direction at the time when the fact occurred, or pa2tayin u ni Mabini. Mtgal n nyang plano i2. Mg
immediately thereafter, or at any other time when ingat u bka ma tsugi k."
the fact was fresh in his memory and he knew that
the same was correctly written or recorded (Sec. 16, b. A subpoena ad testificandum was served
Rule 132). But in this case, X has never seen the on Gregoria for her to be presented for
writing before. the purpose of identifying her cellphone
and the text message. Mabini objected to
TESTIMONIAL EVIDENCE her presentation on the ground of
marital privilege. Resolve.
Qualifications of a witness
A: The objection should be sustained on the ground
Q: Distinguish Competency of the witness and of the marital disqualification rule (Sec. 22, Rule 130,
credibility of the witness. (2004 Bar) now Sec. 23, Rule 130), not on the ground of the
“marital privilege” communication rule (Sec. 24,
A: Competency of the witness refers to the Rule 130). The marriage between Mabini and
capability of a witness to perceive and to make Georgia is still subsisting and the situation at bar
known his perception to others (Sec. 20, Rule 130, does not come under the exceptions to the
now Sec. 21, Rule 130), while credibility of the disqualification by reason of marriage.
witness refers the character of testimony of a
witness of being believable. b. Suppose Mabini’s objection in question
A was sustained. The prosecution
Disqualifications of a witness thereupon announced that it would be
presenting Emilio’s wife Graciana to
Q: Ody sued spouses Cesar and Baby for a sum of identify Emilio’s cellphone bearing
money and damages. At the trial, Ody called Gregoria’s text message. Mabini
Baby as his first witness. Baby objected, joined objected again. Rule on the objection.
by Cesar, on the ground that she may not be
compelled to testify against her husband. Ody A: The objection should be overruled. The
insisted and contended that after all, she would testimony of Graciana is not covered by the said

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marital disqualification rule because she is not the quashed on the ground of privileged
wife of Mabini. Besides, Graciana will identify only communication? Explain fully. (2008 Bar)
the cellphone as that of her husband Emilio, not the
messages therein which to her are hearsay. A: No, the subpoena may not be simply quashed on
the allegation that the testimony to be elicited
c. If Mabini’s objection in question B was constitutes privileged communication. It may be
overruled, can he object to the noted that the accused committed the crime of
presentation of the text message on the swindling on August 15, 2008, whereas he first
ground that it is hearsay? visited his lawyers on August 14, 2008 or before he
committed the swindling. Clearly the conversations
A: No, Gregoria’s text message in Emilio’s cellphone the accused had with his lawyer during such first
is not covered by the hearsay rule because it is visit, before he committed the swindling cannot be
regarded in the rules of evidence as independently protected by the privilege between attorney and
relevant statement. The text message is not to prove client because the crime had not been committed
the truth of the fact alleged therein but only as to the yet and it is no part of the lawyer’s professional duty
circumstances of whether or not premeditation to assist or aid in the commission of the crime;
exists. hence not in the course of professional employment.

d. Suppose that shortly before he expired, The second visit by accused Edgardo to his lawyer
Emilio was able to send a text message the next day (August 16, 2008) after the swindling
to his wife Graciana reading "Nasaksak was committed may also suffer from the same
ako. D na me makahinga. Si Mabini ang infirmity as the conversations had during their first
may gawa ni2." Is this text message meeting inasmuch as there could not be complaint
admissible as a dying declaration? made immediately after the estafa was committed.
Explain. (2010 Bar) The privilege covering a lawyer-client relation
under Sec. 24(b), Rule 130, may not be invoked, as
A: Yes, the text message is admissible as a dying it is not a ground for quashal of a subpoena ad
declaration since the same came from the victim testificandum under Sec. 4, Rule 21.
who “shortly” expired and it is in respect of the
cause and circumstance of his death. The decisive Although the subpoena ad testificandum may not be
factor that the message was made and sent under quashed, the privilege covers conversations “with a
consciousness of an impending death, is evidently view to professional employment.” Thus, it can be
attendant from the victim’s statement: “D na me invoked at the trial but not quash the subpoena.
makakahinga” and the fact that he died shortly after
he sent the message. However, cellphone messages Q: C is the child of the spouses H and W. H sued
are regarded as electronic evidence, and in Ang v. his wife W for judicial declaration of nullity of
Court of Appeals (G.R. No. 182835, April 20, 2010), marriage under Article 36 of the Family Code. In
the Supreme Court ruled that the Rules on the trial, the following testified over the
Electronic Evidence applies only to civil actions, objection of W: C, H and D, a doctor of medicine
quasi-judicial proceedings and administrative who used to treat W. Rule on W’s objections
proceeding, not to criminal actions. which are the following:

Q: On August 15, 2008, Edgardo committed a. H cannot testify against her because of
estafa against Petronilo in the amount of P3 the rule on marital privilege;
Million. Petronilo brought his complaint to the
National Bureau of Investigation, which found A: The rule of marital privilege cannot be invoked in
that Edgardo had visited his lawyer twice, the the annulment case under Article 36 of the Family
first time on August 14, 2008 and the second Code because it is a civil case filed by one against the
on August 16, 2008; and that both visits other. (Sec. 22, Rule 130, now Sec. 23, Rule 130)
concerned the swindling of Petronilo. During
the trial of Edgardo, the RTC issued a subpoena b. C cannot testify against her because of
ad testificandum to Edgardo's lawyer for him to the doctrine on parental privilege
testify on the conversations during their first
and second meetings. May the subpoena be A: The doctrine of parental privilege cannot
likewise be invoked by W as against the testimony

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of C, their child. C may not be compelled to testify sex tourism and child trafficking. The defense
but free to testify against her. (Sec. 25, Rule 130; Art. counsel for XYZ objected to the testimony of ABC
215 FC) at the trial of the child prostitution case and the
introduction of the affidavits she executed
c. D cannot testify against her because of against her husband as a violation of espousal
the doctrine of privileged confidentiality and marital privilege rule. It
communication between patient and turned out that DEF, the minor daughter of ABC
physician (1998). by her first husband who was a Filipino, was
molested by XYZ earlier. Thus, ABC had filed for
A: D, as doctor who used to treat W, is disqualified legal separation from XYZ since last year. May
to testify against W over her objection as to any the court admit the testimony and affidavits of
advice or treatment given by him or any information the wife, ABC, against her husband, XYZ, in the
which he may have acquired in his professional criminal case involving child prostitution?
capacity. (Sec. 24[c], Rule 130) Reason. (2004 Bar)

Q: Vida and Romeo are legally married. Romeo A: Yes. The court may admit the testimony and
is charged in court with the crime of serious affidavits of the wife against her husband in the
physical injuries committed against Selmo, son criminal case where it involves child prostitution of
of Vida, step-son of Romeo. Vida witnessed the the wife's daughter. It is not covered by the marital
infliction of the injuries on Selmo by Romeo. The privilege rule. One exception thereof is where the
public prosecutor called Vida to the witness crime is committed by one against the other or the
stand and offered her testimony as an latter’s direct descendants or ascendants (Sec. 22,
eyewitness. Counsel for Romeo objected on the Rule 130, now Sec. 23, Rule 130). A crime by the
ground of the marital disqualification rule husband against the daughter is a crime against the
under the Rules of Court. wife and directly attacks or vitally impairs the
conjugal relation. (Ordono v. Daquigan, G.R. No. L-
a. Is the objection valid? 39012 January 31, 1975)

A: No. While neither the husband nor the wife may Q: John filed a petition for declaration of nullity
testify for or against the other without the consent of his marriage to Anne on the ground of
of the affected spouse, one exception is if the psychological incapacity under Art. 36 of the
testimony of the spouse is in a criminal case for a Family Code. He obtained a copy of the
crime committed by one against the other or the confidential psychiatric evaluation report on his
latter’s direct descendants or ascendants (Sec. 22, wife from the secretary of the psychiatrist. Can
Rule 130, now Sec. 23, Rule 130). The case falls under he testify on the said report without offending
this exception because Selma is the direct the rule on privileged communication? (2016
descendant of the spouse Vida. Bar)

b. Will your answer be the same if Vida’s A: Yes, John can testify. Under the rule on privileged
testimony is offered in a civil case for communication, the husband or the wife, during or
recovery of personal property filed by after the marriage, cannot be examined without the
Selmo against Romeo? (2000 Bar) consent of the other as to any communication
received in confidence by one from the other during
A: No. The marital disqualification rule applies this the marriage except in a civil case filed by one
time. The exception provided by the rules is in a civil against the other, or in a criminal case for a crime
case by one spouse against the other. The case here committed by one agaisnst the other or the latter’s
involves a case by Selmo for the recovery of direct descendants or ascendants (Sec. 24(a), Rule
personal property against Vida’s spouse, Romeo. 130). In this cae, Anne cannot prevent John from
testifying against her since the petition for
Q: XYZ, an alien, was criminally charged of declaration of nullity is a civil case filed by one
promoting and facilitating child prostitution spouse against the other; hence, the rule on
and other sexual abuses under Rep. Act No. privileged communication between the spouses
7610. The principal witness against him was his does not apply. John could testify on the confidential
Filipina wife, ABC. Earlier, she had complained psychiatric evaluation report of his wife that he
that XYZ’s hotel was being used as a center for obtained from the secretary of the psychiatrist,

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without offending the rule on privileged lawyer objected to the prosecution's use of
communication. judicial affidavits of her witnesses considering
the imposable penalty on the offense with which
EXAMINATION OF A WITNESS his client was charged. (2015)

Q: What are the contents of a judicial affidavit? a. Is Pedro's lawyer correct in objecting to
(2016 Bar) the judicial affidavit of Mario?

A: A judicial affidavit shall be prepared in the A: Yes, Pedro’s lawyer is correct in objecting to the
language known to the witness and, if not in English judicial affidavit of Mario. The Judicial Affidavit
or Filipino, accompanied by a translation in English Rules shall apply only to criminal actions where the
or Filipino, and shall contain the following: maximum of the imposable penalty does not exceed
six (6) years. (Section 9(a)(1), A.M. No. 12-8-9-SC)
a. The name, age, residence or business
address, and occupation of the witness; Here, the maximum imposable penalty for the crime
b. The name and address of the lawyer who of theft of a cellphone worth P20,000 is prision
conducts or supervises the examination of mayor in its minimum to medium periods, or six
the witness and the place where the years and one day to eight years and one day. Thus,
examination is being held; Pedro’s lawyer is correct in objecting to the judicial
c. A statement that the witness is answering affidavit of Mario.
the questions asked of him, fully conscious
that he does so under oath, and that he b. Is Pedro's lawyer correct in objecting to
mayface criminal liability for false the judicial affidavit of Juan?
testimony or perjury;
d. Questions asked of the witness and his A: No. Pedro’s lawyer is not correct in objecting to
corresponding answers, consecutively the judicial affidavit of Juan because the Judicial
numbered, that: Affidavit Rules apply with respect to the civil aspect
of the actions, regardless of the penalties involved.
1. show the circumstances under which (Sec. 9, A.M. No. 12-8-8-SC) Here the judicial affidavit
the witness acquired the facts upon of Juan was offered to prove the civil liability of
which he testifies; Pedro. Thus, the objection of Pedro’s lawyer to the
2. Elicit from him those facts which are judicial affidavit of Juan is not correct.
relevant to the issues that the case
presents; and c. At the conclusion of the prosecution's
3. Identify the attached documentary and presentation of evidence, Prosecutor
object evidence and establish their Marilag orally offered the receipt
authenticity in accordance with the attached to Juan's judicial affidavit,
Rules of Court. which the court admitted over the
objection of Pedro's lawyer. After
e. The signature of the witness over his Pedro's presentation of his evidence, the
printed name; and court rendered judgment finding him
f. A jurat with the signature of the notary guilty as charged and holding him civilly
public who administers the oath or an liable for P20,000.00. Pedro's lawyer
officer who is authorized by law to seasonably filed a motion for
administer the same. (Sec. 3, A.M. No. 12-8- reconsideration of the decision
8-SC) asserting that the court erred in
awarding the civil liability on the basis
Q: Pedro was charged with theft for stealing of Juan's judicial affidavit, documentary
Juan's cellphone worth P20,000.00. Prosecutor evidence which Prosecutor Marilag
Marilag at the pre-trial submitted the judicial failed to orally offer. Is the motion for
affidavit of Juan attaching the receipt for the reconsideration meritorious? (2015
purchase of the cellphone to prove civil liability. Bar)
She also submitted the judicial affidavit of
Mario, an eyewitness who narrated therein how A: No. The motion for reconsideration is not
Pedro stole Juan's cellphone. At the trial, Pedro's meritorious. The judicial affidavit is not required to

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 QuAMTO (1987-2019)
be orally offered as separate documentary evidence, Witness Protection, Security and Benefit Act. The
because it is filed in lieu of the direct testimony of right to prosecute vests the prosecutor with a wide
the witness. It is offered, at the time the witness is range of discretion, including what and whom to
called to testify, and any objection to it should have charge. (Soberano v. People, G.R. No. 154629, October
been made at the time the witness was presented. 5, 2005)
(Section 6 and 8, A.M. No. 12-8-8-SC)
Admissions and confessions
Since the receipt attached to the judicial affidavit
was orally offered, there was enough basis for the Q: A was accused of having raped X. Rule on the
court to award civil liability. admissibility of the following pieces of evidence:

Q: Aside from asking a witness to explain and a. An offer of A to marry X; and
supplement his answer in the cross-
examination, can the proponent ask in re-direct A: A’s offer to marry X is admissible in evidence as
examination questions on matters not dealt an implied admission of guilt. It has been held that
with during cross-examination? (1997 Bar) in rape cases, an offer of marriage is considered an
implied admission of guilt of the accused. (People v
A: Yes, on redirect examination, questions on Domingo, G.R. No. 97921, September 8, 1993)
matters not dealt with during the cross-examination
may be allowed by the court in its discretion. (Sec. 7, b. A pair of short pants allegedly left by A
Rule 132) at the crime which the court, over the
objection of A, required him to put on,
Q: Aside from asking the witness on matters and when he did, it fit him well. (1998
stated in his re-direct examination, can the Bar)
opponent in his re-cross examination ask
questions on matters not dealt with during the A: The pair of short pants, which fit the accused well,
re-direct? (1997 Bar) is circumstantial evidence of his guilt, although
standing alone it cannot be the basis of conviction.
A: Yes, the opponent in his re-cross-examination The accused cannot object to the court requiring
may also ask questions on such other matters as him to put the short pants on. It is not part of his
may be allowed by the court in its discretion. (Sec. 8, right against self-incrimination because it is a mere
Rule 132) physical act.

Q: After plaintiff has formally submitted his Q: A, while driving his car, ran over B. A visited B
evidence, he realized that he had forgotten to at the hospital and offered to pay for his
present what is considered an important hospitalization expenses. After the filing of the
evidence. Can he recall a witness? (1997 Bar) criminal case against A for serious physical
injuries through reckless imprudence, A’s
A: Yes, after formally submitting his evidence, the insurance carrier offered to pay for the injuries
plaintiff can recall a witness with leave of court. The and damages suffered by B. the offer was
court may grant or withhold leave in its discretion rejected because B considered the amount
as the interests of justice may require. (Sec. 9, Rule offered was inadequate.
132)
a. Is the offer by A to pay hospitalization
Q: As counsel of an accused charged with expenses of B admissible in evidence?
homicide, you are convinced that he can be
utilized as a state witness. What procedure will A: The offer by A to pay the hospitalization expenses
you take? (2006 Bar) of B is not admissible in evidence to prove his guilt
in both civil and criminal cases. (Sec. 27, Rule 130,
A: As counsel for the accused, I will advise my client now Sec. 28, Rule 130)
to ask for a reinvestigation and convince the
prosecutor for him to move for the discharge of my b. Is the offer by A’s insurance carrier to
client as a state witness, or the accused can apply as pay for injuries and damages of B
a state witness with the Department of Justice admissible in evidence? (1997 Bar)
pursuant to R.A. No. 6981, otherwise known as The

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A: No. It is irrelevant. The obligation of the
insurance company is based on the contract of Q: What is the probative value of a witness’
insurance and is not admissible in evidence against Affidavit of Recantation? (1998 Bar)
the accused because it was not offered by the
accused but by the insurance company which is not A: On the probative value of an affidavit of
his agent. recantation, courts look with disfavor upon
recantations because they can easily be secured
Res inter alios acta rule from witnesses, usually through intimidation or for
a monetary consideration. Recanted testimony is
Q: Bembol was charged with rape. Bembol's exceedingly unreliable. There is always the
father, Ramil, approached Artemon, the victim's probability that it will be repudiated. (Molina v.
father, during the preliminary investigation and People, G.R. Nos. 70168-69, July 24, 1996)
offered P1 Million to Artemon to settle the case.
Artemon refused the offer. Q: X and Y were charged with murder. Upon
application of the prosecution, Y was discharged
a. During trial, the prosecution presented from the Information to be utilized as a state
Artemon to testify on Ramil's offer and witness. The prosecutor presented Y as witness
thereby establish an implied admission but forgot to state the purpose of his testimony
of guilt. Is Ramil's offer to settle much less offer it in evidence. Y testified that he
admissible in evidence? and X conspired to kill the victim but it was X
who actually shot the victim. The testimony of Y
A: No. The offer to settle not being made by the was the only material evidence establishing the
accused or with his participation is not admissible guilt of X. Y was thoroughly cross-examined by
against him under the rule of res inter alios acta. No the defense counsel. After the prosecution
implied admission of guilt can be drawn from efforts rested its case, the defense filed a motion for
to settle a criminal case out of court, where the demurrer to evidence based on the following
accused had no participation in such negotiation. grounds:
(People v. Godoy, G.R. Nos. 115908-09, December 6,
1995) 1. The testimony of Y should be excluded
because its purpose was not initially
b. During the pre-trial, Bembol personally stated and it was not formally offered in
offered to settle the case for P1 Million evidence as required by Sec. 34, Rule
to the private prosecutor, who 132; and
immediately put the offer on record in 2. Y’s testimony is not admissible against X
the presence of the trial judge. Is pursuant to the rule on “res inter alios
Bembol's offer a judicial admission of acta.”
his guilt? (2008 Bar)
Rule on the motion for demurrer to evidence on
A: No. The offer is not a judicial admission of guilt the above grounds. (2003 Bar)
because it has not been reduced in writing or signed
by the accused. The Sec. 2, Rule 118 requires that all A: The demurrer to the evidence should be denied:
agreements or admissions made or entered during
the pre-trial conference shall be reduced in writing 1. The testimony of Y should not be excluded
and signed by the accused and counsel, otherwise, because the defense counsel did not object
they cannot be used against the accused. to his testimony despite the fact that the
prosecutor forgot to state its purpose or
Q: If the accused on the witness stand repeats his offer it in evidence. Moreover, the defense
earlier uncounseled extrajudicial confession counsel thoroughly cross- examined Y and
implicating his co-accused in the crime charged, thus waived the objection.
is that testimony admissible in evidence against 2. The res inter alios acta rule does not apply
the latter? (1998 Bar) because Y testified in open court and was
subjected to cross examination.
A: Yes. The accused can testify by repeating his
earlier uncounseled extrajudicial confession, Q: Arrested in a buy-bust operation, Edmond
because he can be subjected to cross-examination. was brought to the police station where he was

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informed of his constitutional rights. During the A: The exceptions to the hearsay rule are: dying
investigation, Edmond refused to give any declaration, statement of decedent or person of
statement. However, the arresting officer asked unsound mind, declaration against interest, act or
Edmond to acknowledge in writing that six (6) declaration about pedigree, family reputation or
sachets of “shabu” were confiscated from him. tradition regarding pedigree, common reputation,
Edmond consented and also signed a receipt for part of the res gestae, records of regularly conducted
the amount of P3,000.00, allegedly representing business activity, entries in official records,
the “purchase price of the shabu.” At the trial, commercial lists and the like, learned treatises, and
the arresting officer testified and identified the testimony or deposition at a former proceeding and
documents executed and signed by Edmond. residual exception. (Secs. 37 to 47, Rule 130, now
Edmond’s lawyer did not object to the Secs. 38 to 50, Rule 130)
testimony. After the presentation of the
testimonial evidence, the prosecutor made a Q: A foreign dog trained to sniff dangerous drugs
formal offer of evidence which included the from packages, was hired by FDP Corporation, a
documents signed by Edmond. Edmond’s lawyer door to door forwarder company, to sniff
objected to the admissibility of the documents packages in their depot at the international
for being the “fruit of the poisonous tree.” airport. In one of the routinary inspections of
Resolve the objection with reasons. (2009 Bar) packages waiting to be send to the United States
of America (USA), the dog sat beside one of the
A: The objection to the admissibility of the packages, a signal that the package contained
documents which the arresting officer asked dangerous drugs. Thereafter, the guards opened
Edmond to sign without the benefit of counsel, is the package and found two (2) kilograms of
well-taken. Said documents having been signed by cocaine. The owner objected of the package was
the accused while under custodial investigation, arrested and charges were filed against him.
imply an “admission” without the benefit of counsel During the trial, the prosecution, through the
that the shabu came from him and that the trainer who was present during the incident and
P3,000.00 was received by him pursuant to the an expert in this kind of field, testified that the
illegal selling of the drugs. Thus, it was obtained by dog was highly trained to sniff packages to
the arresting officer in violation of Section 12(3), determine if the contents were dangerous drugs
Article III of the 1987 Constitution, particularly the and the sniffing technique of their highly trained
right to be assisted by the counsel during custodial dogs was accepted worldwide and had been
investigation. Moreover, the objection to the successful in dangerous drugs operations. The
admissibility of the evidence was timely made, i.e., prosecution moved to admit this evidence to
when the same is formally offered. justify the opening of the package. The accused
objected on the grounds that : (i) the guards had
Hearsay Rule no personal knowledge of the contents of the
package before it was opened; (ii) the testimony
Q: Distinguish clearly but briefly between of the trainer of the dog is hearsay; and (iii) the
hearsay evidence and opinion evidence. (2004 accused could not cross-examine the dog.
Bar) Decide. (2014 Bar)

A: Hearsay evidence consists of testimony that is A: The objections of the accused should be
not based on personal knowledge of the person overruled. An evidence is admissible when it is
testifying, (Sec. 36, Rule 130, now Sec. 37, Rule 130), relevant to the issue and is not excluded by the
while opinion evidence is expert evidence based on Constition, law or the rules (Sec 3, Rule 128). Under
the personal knowledge skill, experience, training Section 36, Rules 130 (now Sec. 22, Rule 130), a
or education of the person testifying (Sec. 49, Rule witness can testify only to those which he knows of
130, now Sec. 52, Rule 130) and evidence of an his or her personal knowledge and derived from his
ordinary witness on limited matters. (Sec. 50, Rule or her own perception. The contention that the
130, now Sec. 53, Rule 130) guards had no personal knowledge of the contents
of the package before it was opened is without
Q: What are the exceptions to hearsay rule? merit. The guards can testify as to the facts surround
(1999 Bar) the opening of the package since they have personal
knowledge of the circumstances thereof, being
physically present at the time of its discovery.

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Q: Romeo is sued for damages for injuries
On the other hand, the testimony of the trainer of suffered by the plaintiff in a vehicular accident.
the dog is not hearsay based on the following Julieta, a witness in court, testifies that Romeo
grounds: told her (Julieta) that he (Romeo) heard
Antonio, a witness to the accident, give an
a. He has personal knowledge of the facts in excited account of the accident immediately
issue, having witnessed the same; after its occurrence. Is Julieta’s testimony
b. Hearsay merely contemplates an out-of- admissible against Romeo over proper and
court declaration of a person which is being timely objection? Why? (2002 Bar)
offered to prove the truthfulness and
veracity of the facts asserted therein; A: No, Julieta’s testimony is not admissible against
c. He is an expert witness, hence, his Romeo, because while the excited account of
testimony may constitute an exception to Antonio, a witness to the accident, was told to
the hearsay rule; Romeo, it was only Romeo who told Julieta about it,
d. The accused has the opportunity to cross- which makes it hearsay.
examine him; and
e. Testimony of a witness as to statements Q: Maximo filed an action against Pedro, the
made by nonhuman declarants does not administrator of the estate of deceased Juan, for
violate the rule against hearsay. The law the recovery of a car which is a part of the
permits the so-called “non-human latter’s estate. During the trial, Maximo
evidence” on the ground that machines and presented witness Mariano who testified that he
animals, unlike humans, lack a conscious was present when Maximo and Juan agreed that
motivation to tell falsehoods, and because the latter would pay a rental of P20,000 for the
the workings of machines can be explained use of Maximo’s car for one month after which
by human witnesses who are then subject Juan should immediately return the car to
to cross-examination by opposing counsel. Maximo. Pedro objected to the admission of
(City of Webster Groves v. Quick. 323 S.W. 2d Mariano’s testimony. If you were the judge,
386 [Mo. 1959]; Buck v. State, 138 P. 2d 115 would you sustain Pedro’s objection? Why?
[Okla. 1943]; Herrera, 1999)
A: No, the testimony is admissible in evidence
Conversely, the accused may not argue that he because witness Mariano who testified as to what
cannot cross-examine the dog as the Constitutional Maximo and Juan, the deceased person agreed upon,
right to confrontation refers only to witnesses. As is not disqualified to testify on the agreement. Those
alluded, the human witnesses who have explained disqualified are parties or assignors of the parties to
the workings of the non-human evidence is the one a case, or persons in whose behalf a case is
that should be cross-examined. Hence, the prosecuted, against the administrator or Juan’s
contention of the accused that the he could not estate, upon a claim or demand against his estate as
cross-examine the dog is misplaced. to any matter of fact occurring before Juan’s death.
(Sec. 23, Rule 130, now Sec. 39, Rule 130)
Dying Declaration
Q: The accused was charged with robbery and
Q: Requisites of Dying Declaration (1998 Bar) homicide. The victim suffered several stab
wounds. It appears that eleven (11) hours after
A: The requisites for the admissibility of a dying the crime, while the victim was being brought to
declaration are: (a) the declaration is made by the the hospital in a jeep, with his brother and a
deceased under the consciousness of his impending policeman as companions, the victim was asked
death; (b) the deceased was at the time competent certain questions which he answered, pointing
as a witness; (c) the declaration concerns the cause to the accused as his assailant. His answers were
and surrounding circumstances of the declarant’s put down in writing, but since he was in a critical
death; and (d) the declaration is offered in a condition, his brother and the policemen signed
(criminal) case wherein the declarant's death is the the statement. Is the statement admissible as a
subject of inquiry. (People v. Santos, G.R. No. 94545, dying declaration? (1999 Bar)
April 4, 1997)
A: Yes. The statement is admissible as a dying
declaration of the victim subsequently dies and his

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 QuAMTO (1987-2019)
answers were made under the consciousness of Q: Linda and spouses Arnulfo and Regina Ceres
impending death (Sec. 37, Rule 130, now Sec. 38, Rule were co-owners of a parcel of land. Linda died
130). The fact that he did not sign the statement intestate and without any issue. Ten (10)
point to the accused as his assailant, because he was persons headed by Jocelyn, claiming to be the
in critical condition, does not affect its admissibility collateral relatives of the deceased Linda, filed
as a dying declaration. A dying declaration need not an action for partition with the RTC praying for
be in writing. (People v. Viovicente, G.R. No. 118707, the segregation of Linda’s ½ share, submitting
February 2, 1998) in support for their petition the baptismal
certificates of seven of the petitioners, a family
Q: Immediately before he died of gunshot bible belonging to Linda in which the names of
wounds to his chest, Venancio told the attending the petitioners have been entered, a photocopy
physician; in a very feeble voice, that it was of the birth certificate of Jocelyn, and a
Arnulfo, his co-worker, who had shot him certification of the local civil registrar that its
Venancio added that it was also Arnulfo who had office had been completely razed by fire. The
shot Vicente, the man whose cadaver was lying spouses Ceres refused partition on the following
on the bed beside him. grounds: 1) the baptismal certificates of the
parish priest are evidence only of the
In the prosecution of Arnulfo for the criminal administration of the sacrament of baptism and
killing of Venancio and Vicente, are all the they do not prove filiation of the alleged
statements of Venancio admissible as dying collateral relatives of the deceased; 2) entry in
declarations? Explain your answer. (2017 Bar) the family bible is hearsay; 3) the certification of
the registrar on non-availability of the records
A: No. Not all statements of Venancio are admissible of birth does not prove filiation; 4) in partition
as dying declarations. A dying declaration is a case where filiation to the deceased is in dispute,
statement made under the consciousness of an prior and separate judicial declaration of
impending death (Sec. 37, Rule 130, now Sec. 38, Rule heirship in a settlement of estate proceedings is
130). It may be received in any case wherein his necessary; and 5) there is need for publication
death is the subject of inquiry, as evidence of the as real property is involved. As counsel for
cause and surrounding circumstances of such death. Jocelyn and her co-petitioners, argue against the
objections of the spouses Ceres so as to convince
In this case, presuming there is evidence that the court to allow the partition. Discuss each of
Venancio was conscious of his impending death the five (5) arguments briefly but completely
when he made his statement that it was Arnulfo who (2000 Bar)
shot him, said statement may be considered as a
dying declaration which is admissible in evidence as A:
an exception to the hearsay rule. The degree and
seriousness of the gunshot wounds sustained by 1. The baptismal certificate can show the
Venancio and the fact that death supervened filiation or prove pedigree. It is one of the
thereafter may constitute substantial evidence of other means allowed under the Rules of
his consciousness of his impending death. (People v. Court and special laws to show pedigree.
Tanaman, G.R. No. 71768, July 28, 1987) (Trinidad v. Court of Appeals, G.R. No.
118904, April 20, 1998; Heirs of Ignacio
While Venancio’s statement about the death of Conti v. Court of Appeals, G.R. No. 118464,
Vicente may not be considered as a dying December 21, 1998)
declaration, it may still be admitted in evidence as 2. Entries in the family bible may be received
part of res gestae, which is also an exception to the as evidence of pedigree. (Sec. 40, Rule 130,
hearsay rule (Sec. 42, Rule 130, now Sec. 44, Rule now Sec. 42, Rule 130)
130). Venancio’s statement about the killing of 3. The certification by the civil registrar of the
Vicente may be considered to have been made after non-availability of records is needed to
the occurrence of a startling occurrence. Thus, it justify the presentation of secondary
may be admitted in evidence. evidence, which is the photocopy of the
birth certificate of Jocelyn. (Heirs of Conti v.
Family reputation or tradition regarding Court of Appeals, G.R. No. 118464, December
pedigree 21, 1998)

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