RULES OF EVIDENCE
Evidence – the means, sanctioned by the Rules, of ascertaining in a judicial proceeding the truth respecting a matter of fact.
Relevant evidence – evidence which has a relation to the fact in issue as to induce belief in its existence or non-existence; evidence which tends in any reasonable degree to establish the probability or improbability of the fact in issue.
Material evidence – evidence which is directed to prove a fact in issue as determined by the rules of substantive law and pleadings; evidence of such quality of substantial importance to the particular issue, apart from its relevance
The terms “relevant” and “material” are practically the same. They are used interchangeably by the SC.
Competent evidence – evidence which is not excluded by the law or by the Rules of Court
Direct evidence – evidence which proves a fact in dispute without the aid of any inference or presumption
Circumstantial evidence – proof of facts from which, taken collectively, the existence of the particular fact in dispute may be inferred as a necessary or probable consequence
Expert evidence – testimony of a witness regarding a question of science, art or trade, when he is skilled therein
Prima facie evidence – evidence which suffices for the proof of a particular fact until contradicted and overcome by other evidence
Conclusive evidence – evidence which is incontrovertible and which the law does not allow to be contradicted
Cumulative evidence – evidence of the same kind and character as that already given and tends to prove the same proposition
Corroborative evidence – evidence of a different kind and character tending to prove the same point
Best evidence – evidence which affords the greatest certainty of the fact in question
Secondary evidence – evidence which is necessarily inferior to primary/best evidence and shows on its fact that better evidence exists
Factum probans – the evidentiary fact by which the factum probandum is to be established; material evidencing the proposition, existent, and offered for the consideration of the tribunal
Factum probandum – the ultimate fact sought to be established; proposition to be established, hypothetical, and that which one party affirms and the other denies
|Proposition to be established||Material evidencing the proposition|
|Conceived of as hypothetical; that which one party affirms and the other denies||Conceived of for practical purposes as existent, and is offered as such for the consideration of the court|
Collateral facts – matters other than facts in issue and which are offered as a basis merely for inference as to the existence or non-existence of the facts in issue
Real evidence – evidence furnished by the things themselves, or view or inspection as distinguished from a description by them of a witness; that which is addressed directly to the senses of the court without the intervention of a witness
Rebuttal evidence – evidence which is given to explain, repel, counteract or disprove facts given in evidence by the adverse party
Positive evidence – when a witness affirms that a fact did or did not occur
Negative evidence – when a witness states that he did not see or know the occurrence of a fact
Admissibility of evidence
Weight of evidence
|Pertains to the ability of the evidence to be allowed and accepted subject to its relevancy and competence||Pertains to the effect of evidence admitted|
|Substantive essence or characteristic feature of evidence as would make it worthy of consideration by the court before its admission||The probative value of evidence which the court may give to admit after complying with the rules of relevancy and competency|
|Effect and result of evidence||Medium of proof|
|End Result||Means to the end|
Evidence must have such a relation to the fact in issue as to induce belief in its existence or non-existence. Evidence on collateral matters shall not be allowed, except when it tends in any reasonable degree to establish the probability or improbability of the fact in issue.
RULE 129 – WHAT NEED NOT BE PROVED
Judicial notice, when mandatory. – A court shall take judicial notice, without the introduction of evidence, of the existence and territorial extent of states, their political history, forms of government and symbols of nationality, the law of nations, the admiralty and maritime courts of the world and their seals, the political constitution and history of the Philippines, the official acts of the legislative, executive and judicial departments of the Philippines, the laws of nature, the measure of time, and the geographical divisions.
Judicial notice, when discretionary. – A court may take judicial notice of matters which are of public knowledge, or are capable of unquestionable demonstration, or ought to be known to judges because of their judicial functions.
When court takes judicial notice
- During trial, on any matter – allow the parties to be heard thereon
- After trial, and before judgment or on appeal – any matter and allow the parties to be heard thereon if such matter is decisive of a material issue in the case
Hearing is necessary when
- During the trial, the court
- motu propio, on request of a party
- announces its intention to take judicial notice of any matter
- After trial
- before judgment or on appeal
- motu propio, on request of a party
- takes judicial notice of any matter, and
- if such matter is decisive of a material issue in the case
Hence, the court can take judicial notice of any matter during the trial as long as there is a hearing. If trial is already over, the court can take judicial notice only of matters decisive of a material issue in the case as long as there is a hearing.
Instances of Judicial admissions
- the genuineness and due execution of an actionable document copied or attached to a pleading, when the other party fails to specifically deny under oath (Rule 8 §8)
- material allegations in the complaint, when the other party fails to specifically deny it (Rule 8 §11)
- admissions in superseded pleadings, when offered in evidence (Rule 10 §8)
- act, declaration, or omission of a party as to a relevant fact (Rule 130 §26)
- implied admission of guilt in an offer of compromise by the accused in criminal cases, except quasi-offenses and those allowed by law to be compromised (Rule 130 §27)
- admission by silence (Rule 130 §32)
RULES OF ADMISSIBILITY (RULE 130)
Objects as evidence are those addressed to the senses of the court. When an object is relevant to the fact in issue, it may be exhibited to, examined or viewed by the court.
Documents as evidence consist of writings or any material containing letters, words, numbers, figures, symbols or other modes of written expressions offered as proof of their contents.
Best Evidence Rule – When the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document itself
Exceptions: When the original
- has been lost or destroyed, or cannot be produced in court, without bad faith on the part of the offeror;
- is in the custody or under the control of the party against whom the evidence is offered, and the latter fails to produce it after reasonable notice;
- consists of numerous accounts or other documents which cannot be examined in court without great loss of time and the fact sought to be established from them is only the general result of the whole; and
- the original is a public record in the custody of a public officer or is recorded in a public office
- one the contents of which are the subject of inquiry.
- When a document is in two or more copies executed at or about the same time, with identical contents, all such copies are equally regarded as originals.
- When an entry is repeated in the regular course of business, one being copied from another at or near the time of the transaction, all the entries are likewise equally regarded as originals
Requisites for admission of secondary evidence, according to grounds
- the original has been lost or destroyed, or cannot be produced in court
- prove execution or existence
- prove cause of unavailability without bad faith of the offeror
- proof of contents in the following order
2) recital of its contents in
a) some authentic document, or
b) testimony of witnesses
- the original is in the custody or under the control of the adverse party
- adverse party had reasonable notice to produce the original (Subpoena duces tecum)
- proof of the original’s existence
- adverse party fails to produce the original
- proof of contents in the following order
2) recital of its contents in
a) some authentic document, or
b) testimony of witnesses
- the original consists of numerous accounts or other documents which cannot be examined in court without great loss of time and the fact sought to be established from them is only the general result of the whole; and
- the original is a public record in the custody of a public officer or is recorded in a public office – contents may be proved by a certified copy issued by the public officer in custody thereof
- Rule 132 §25: What attestation of copy must state
1) the copy is a correct copy of the original, or a specific part thereof
2) under the official seal of the attesting officer, if there be any, or if he be the clerk of a court having a seal, under the seal of such court
- Rule 132 §27: Public record of a private document – may be proved by
1) the original record, or
2) by a copy thereof
a) attested by the legal custodian of the record
b) with an appropriate certificate that such officer has the custody
Parol Evidence Rule: When the terms of an, agreement have been reduced to writing, it is considered as containing all the terms agreed upon and there can be, between the parties and their successors in interest, no evidence of such terms other than the contents of the written agreement.
Exceptions: a party may present evidence to modify, explain or add to the terms of the written agreement if he puts in issue in his pleading
- An intrinsic ambiguity, mistake or imperfection in the written agreement
- failure of the written agreement to express the true intent and agreement of the parties
- validity of the written agreement; or
- The existence of other terms agreed to by the parties or their successors in interest after the execution of the written agreement
If the ground is subsequently-agreed terms, the subsequently-agreed terms must also be put in issue in the pleadings.
The rule applies only to the terms of an agreement. If the evidence sought to be admitted refers to matters other than the terms of the agreement (e.g. statement of facts), then the PER does not apply, such evidence is admissible.
PER applies only to the parties to the agreement. It does not apply where PER is invoked against a litigant who is a stranger to the agreement.
Requisites for mistake as exception to PER
- mutual between the parties
- of fact, not of law
- alleged and put in issue in the pleadings
- proved by clear and convincing, not merely preponderance of, evidence
Parol Evidence Rule
Best Evidence Rule
|No issue as to the contents of a writing||Issue is contents of a writing|
|Parol evidence is offered||Secondary evidence is offered|
|Presupposes that original is in court||Applies when the original is not available|
|Effect is can not add, subtract, or explain the contents||Effect is can not present any evidence on the contents other than the original|
|Invoked only if the controversy is between parties to the agreement||Invoked by anybody, whether a party to the instrument or not|
|Applies only to agreements and wills||Applies to all kinds of writing|
The following persons cannot be witnesses:
(a) Those whose mental condition, at the time of their production for examination, is such that they are incapable of intelligently making known their perception to others;
(b) Children whose mental maturity is such as to render them incapable of perceiving the facts respecting which they are examined and of relating them truthfully.
For a mentally defective person to be a witness, he must be mentally capable at the time of production, even if he was not so at the time of perception. A child must be mentally mature both at the time of perception and at the time of production. With regards to the subject matter of the testimony, we must make a distinction between absolute disqualifications and relative disqualifications. Objections based on absolute disqualifications may be raised upon the calling of the disqualified witness. Objections based on relative disqualifications may be raised when it becomes apparent that the subject matter of the testimony covers inadmissible matters.
Marital Disqualification (Sec. 22)
Marital Communications (Sec. 24)
|Covers all matters regardless of source||Covers only those communicated by one spouse to another|
|Applies during the marriage||Applies during and after the marriage|
|A spouse must be a litigant||A spouse need not be a litigant|
|Invoked when a spouse is called to testify||Invoked when the testimony appears to cover privileged matters|
Requisites for dead man’s statute (Sec. 23)
- the witness sought to be disqualified is the plaintiff
- Executor, administrator or representative of a deceased person, or the person of unsound mind is the defendant
- upon claim or demand against the estate of such deceased person or against such person of unsound mind
- as to any matter of fact occurring before the death of such deceased person or before such person became of unsound mind.
- [no counterclaim is filed]
Privileged Communication (Sec. 24)
The husband or the wife, during or after the marriage, cannot be examined without the consent of the other as to any communication received in confidence by one from the other during the marriage except in a civil case by one against the other, or in a criminal case for a crime committed by one against the other or the latter’s direct descendants or ascendants;
An attorney cannot, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of, or with a view to, professional employment, nor can an attorney’s secretary, stenographer, or clerk be examined, without the consent of the client and his employer, concerning any fact the knowledge of which has been acquired in such capacity;
A person authorized to practice medicine, surgery or obstetrics cannot in a civil case, without the consent of the patient, be examined as to any advice or treatment given by him or any information which he may have acquired in attending such patient in a professional capacity, which information was necessary to enable him to act in that capacity, and which would blacken the reputation of the patient;
A minister or priest cannot, without the consent of the person making the confession, be examined as to any confession made to or any advice given by him in his professional character in the course of discipline enjoined by the church to which the minister or priest belongs;
A public officer cannot be examined during his term of office or afterwards, as to communications made to him in official confidence, when the court finds that the public interest would suffer by the disclosure.
In civil cases, an offer of compromise is inadmissible regardless of the cause of action. In criminal cases, the general rule is an offer of compromise is admissible. However, it is inadmissible under the following cases:
- quasi-offenses (criminal negligence)
- cases allowed by law to be compromised (e.g. BIR can compromise tax cases)
- plea of guilty later withdrawn
- unaccepted offer to plead guilty to a lesser offense
- offer to pay or payment of expenses occasioned by an injury
- [the offer is made only to avoid the consequences of litigation]
Note that the inadmissible offer to pay refers only to expenses occasioned by an injury. It does not include offers to pay other expenses. Ergo, an offer to pay for damages to property is admissible in criminal cases.
Further note that an offer to pay for expenses other than those occasioned by an injury is inadmissible in civil cases. Though the 3rd paragraph of §27 excludes in civil cases offers to pay only for expenses occasioned by an injury, offers to pay for other expenses fall under the general rule that an offer to compromise in civil cases is not admissible. The exclusion in civil cases of offers to pay for expenses occasioned by an injury is merely a superfluity. Even if the exclusion was expressly applied to only criminal cases, an offer to pay for expenses occasioned by an injury is in the nature of an offer to compromise which is undoubtedly admissible in civil cases. The bottomline is: an offer to pay for any expense in civil cases is inadmissible.
Requisites for admission by silence
- The act or declaration is made in the presence and within the hearing or observation of a party
- The party does or says nothing
- The act or declaration naturally calls for action or comment if not true
- Such action or comment is proper and possible on the part of the party.
Requisites for the admissibility of a confession
1. the confession must be voluntary;
2. the confession must be made with the assistance of a competent and independent counsel;
3. the confession must be express;
4.. the confession must be in writing.
Testimonial Knowledge (Hearsay Rule – Sec. 36)
A witness can testify only to those facts which he knows of his personal knowledge; that is, which are derived from his own perception, except as otherwise provided in these rules.
Exceptions to the Hearsay Rule (Secs. 37-47)
|1. Dying declaration – the declaration of a dying person, made under the consciousness of an impending death, may be received in any case wherein his death is the subject of inquiry, as evidence of the cause and surrounding circumstances of such death.|
|2. Declaration against interest – The declaration made by a person deceased, or unable to testify, against the interest of the declarant, if the fact asserted in the declaration was at the time it was made so far contrary to declarant’s own interest, that a reasonable man in his position would not have made the declaration unless he believed it to be true, may be received in evidence against himself or his successors in interest and against third persons.|
|3. Act or declaration against pedigree – The act or declaration of a person deceased, or unable to testify, in respect to the pedigree of another person related to him by birth or marriage, may be received in evidence where it occurred before the controversy, and the relationship between the two persons is shown by evidence other than such act or declaration. The word “pedigree” includes relationship, family genealogy, birth, marriage, death, the dates when and the places where these facts occurred, and the names of the relatives. It embraces also facts of family history intimately connected with pedigree.|
|4. Family reputation or tradition regarding pedigree – The reputation or tradition existing in a family previous to the controversy, in respect to the pedigree of any one of its members, may be received in evidence if the witness testifying thereon be also a member of the family, either by consanguinity or affinity. Entries in family bibles or other family books or charts, engravings on rings, family portraits and the like, may be received as evidence of pedigree.|
|5. Common reputation – Common reputation existing previous to the controversy, respecting facts of public or general interest more than thirty years old, or respecting marriage or moral character, may be given in evidence. Monuments and inscriptions in public places may be received as evidence of common reputation.|
|6. Parts of the res gestae – Statements made by a person while a startling occurrence is taking place or immediately prior or subsequent thereto with respect to the circumstances thereof, may be given in evidence as part of the res gestae. So, also, statements accompanying an equivocal act material to the issue, and giving it a legal significance, may be received as part of the res gestae.|
|7. Entries in the course of business – Entries made at, or near the time of the transactions to which they refer, by a person deceased, or unable to testify, who was in a position to know the facts therein stated, may be received as prima facie evidence, if such person made the entries in his professional capacity or in the performance of duty and in the ordinary or regular course of business or duty.|
|8. Entries in official records – Entries in official records made in the performance of his duty by a public officer of the Philippines, or by a person in the performance of a duty specially enjoined by law, are prima facie evidence of the facts therein stated.|
|9. Commercial lists and the like – Evidence of statements of matters of interest, to persons engaged in an occupation contained in a list, register, periodical, or other published compilation is admissible as tending to prove the truth of any relevant matter so stated if that compilation is published for use by persons engaged in that occupation and is generally used and relied upon by them therein.|
|10. Learned treatises – A published treatise, periodical or pamphlet on a subject of history, law, science or art is admissible as tending to prove the truth of a matter stated therein if the court takes judicial notice, or a witness expert in the subject testifies that the writer of the statement in the treatise, periodical or pamphlet is recognized in his profession or calling as expert in the subject.|
|11. Testimony or deposition at a former proceeding – The testimony or deposition of a witness deceased or unable to testify, given in a former case or proceeding, judicial or administrative, involving the same parties and subject matter, may be given in evidence against the adverse party who had the opportunity to cross-examine him.|
GR: The opinion of a witness is not admissible. (Sec. 48)
Exceptions: Admissible opinion evidence
- a matter requiring special knowledge, skill, experience or training which he is shown to possess, may be received in evidence.
- the identity of a person about whom he has adequate knowledge;
- a handwriting with which he has sufficient familiarity
- the mental sanity of a person with whom he is sufficiently acquainted.
- his impressions of the emotion, behavior, condition or the appearance of a person
GR: Character evidence not generally admissible (Sec. 51)
- In Criminal Cases:
- accused may prove his good moral character which is pertinent to the moral trait involved in the offense charged.
- In rebuttal, the prosecution may prove the bad moral character of the accused which is pertinent it to the moral trait involved in the offense charged.
- moral character of the offended party may be proved if it tends to establish in any reasonable degree the probability or improbability of the offense charged.
- In Civil Cases – only when pertinent to the issue of character involved in the case.
- good character of an impeached witness
BURDEN OF PROOF (RULE 131)
Burden of proof – the duty of a party to present evidence on the facts in issue necessary to establish his claim or defense by the amount of evidence required by law
Instances of conclusive presumptions
- a party has, by his own declaration, act, or omission, intentionally and deliberately led another to believe a particular thing true, and to act upon such belief, he cannot, in any litigation arising out of such declaration, act or omission, be permitted to falsify it:
- The tenant is not permitted to deny the title of his landlord at the time of the commencement of the relation of landlord and tenant between them.
Statutory instances of estoppel
- non-owner transferor who later acquires title passes ownership to the transferee by operation of law (Art. 1434 NCC)
- agent who alienates can not claim title against the transferee (Art. 1435 NCC)
- a lessee or a bailee is estopped from asserting title to the thing leased or received, as against the lessor or bailor. (Art. 1436 NCC)
- in a contract between 3rd persons concerning immovable property, one of them is misled by a person with respect to the ownership or real right over the real estate, the latter is precluded from asserting his legal title or interest therein, provided all these requisites are present:
- fraudulent representation or wrongful concealment of facts known to the party estopped;
- party precluded must intend that the other should act upon the facts as misrepresented;
- party misled must have been unaware of the true facts; and
- party defrauded must have acted in accordance with the misrepresentation. (Art. 1437 NCC)
- One who has allowed another to assume apparent ownership of personal property for the purpose of making any transfer of it, cannot, if he received the sum for which a pledge has been constituted, set up his own title to defeat the pledge of the property, made by the other to a pledgee who received the same in good faith and for value. (Art. 1438 NCC)
Disputable presumptions – The following presumptions are satisfactory if uncontradicted, but may be contradicted and overcome by other evidence:
(a) That a person is innocent of crime or wrong;
(b) That an unlawful act was done with an unlawful intent;
(c) That a person intends the ordinary consequences of his voluntary act;
(d) That a person takes ordinary care of his concerns;
(e) That evidence willfully suppressed would be adverse if produced;
(f) That money paid by one to another was due to the latter;
(g) That a thing delivered by one to another belonged to the latter;
(h) That an obligation delivered up to the debtor has been paid;
(i) That prior rents or installments had been paid when a receipt for the later ones is produced;
(j) That a person found in possession of a thing taken in the doing of a recent wrongful act is the taker and the doer of the whole act; otherwise, that things which a person possesses, or exercises acts of ownership over, are owned by him;
(k) That a person in possession of an order on himself for the payment of the money, or the delivery of anything, has paid the money or delivered the thing accordingly;
(1) That a person acting in a public office was regularly appointed or elected to it;
(m) That official duty has been regularly performed;
(n) That a court, or judge acting as such, whether in the Philippines or elsewhere, was acting in the lawful exercise of jurisdiction;
(o) That all the matters within an issue raised in a case were laid before the court and passed upon by it; and in like manner that all matters within an issue raised in a dispute submitted for arbitration were laid before the arbitrators and passed upon by them;
(p) That private transactions have been fair and regular;
(q) That the ordinary course of business has been followed;
(r) That there was a sufficient consideration for a contract;
(s) That a negotiable instrument was given or indorsed for a sufficient consideration;
(t) That an indorsement of a negotiable instrument was made before the instrument was overdue and at the place where the instrument is dated;
(u) That a writing is truly dated;
(v) That a letter duly directed and mailed was received in the regular course of the mail;
(w) That after an absence of seven years, it being unknown whether or not the absentee still lives, he is considered dead for all purposes, except for those of succession.
The absentee shall not be considered dead for the purpose of opening his succession till after an absence of ten years. If he disappeared after the age of seventy-five years, an absence of five years shall be sufficient in order that his succession may be opened.
The following shall be considered dead for all purposes including the division of the estate among the heirs:
(1) A person on board a vessel lost during a sea voyage, or an aircraft which is missing, who has not been heard of for four years since the loss of the vessel or aircraft;
(2) A member of the armed forces who has taken part in armed hostilities, and has been missing for four years;
(3) A person who has been in danger of death under other circumstances and whose existence has not been known for four years;
(4) If a married person has been absent for four consecutive years, the spouse present may contract a subsequent marriage if he or she has a well-founded belief that the absent spouse is already dead. In case of disappearance, where there is danger of death under the circumstances hereinabove provided, an absence of only two years shall be sufficient for the purpose of contracting a subsequent marriage. However, in any case, before marrying again, the spouse present must institute a summary proceeding as provided in the Family Code and in the rules for a declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse.
(x) That acquiescence resulted from a belief that the thing acquiesced in was conformable to the law or fact;
(y) That things have happened according to the ordinary course of nature and the ordinary habits of life;
(z) That persons acting as copartners have entered into a contract of copartnership;
(aa) That a man and woman deporting themselves as husband and wife have entered into a lawful contract of marriage;
(bb) That property acquired by a man and a woman who are capacitated to marry each other and who live exclusively with each other as husband and wife without the benefit of marriage or under a void marriage, has been obtained by their joint efforts, work or industry.
(cc) That in cases of cohabitation by a man and a woman who are not capacitated to marry each other and who have acquired property through their actual joint contribution of money, property or industry, such contributions and their corresponding shares including joint deposits of money and evidences of credit are equal.
(dd) That if the marriage is terminated and the mother contracted another marriage within three hundred days after such termination of the former marriage, these rides shall govern in the absence of proof to the contrary:
(1) A child born before one hundred eighty days after the solemnization of the subsequent marriage is considered to have been conceived during the former marriage, provided it be born within three hundred days after the termination of the former marriage;
(2) A child born after one hundred eighty days following the celebration of the subsequent marriage is considered to have been conceived during such marriage, even though it be born within the three hundred days after the termination of the former marriage.
(ee) That a thing once proved to exist continues as long as is usual with things of that nature;
(ff) That the law has been obeyed;
(gg) That a printed or published book, purporting to be printed or published by public authority, was so printed or published;
(hh) That a printed or published book, purporting to contain reports of cases adjudged in tribunals of the country where the book is published, contains correct reports of such cases;
(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 such presumption is necessary to perfect the title of such person or his successor in interest;
(jj) That except for purposes of succession, when two persons perish in the same calamity, such as wreck, battle, or conflagration, and it is not shown who died first, and there are no particular circumstances from which it can be inferred, the survivorship is determined from the probabilities resulting from the strength and age of the sexes, according to the following rules:
1. If both were under the age of fifteen years, the older is deemed to have survived;
2. If both were above the age of sixty, the younger is deemed to have survived;
3. If one is under fifteen and the other above sixty, the former is deemed to have survived;
4. If both be over fifteen and under sixty, and the sex be different, the male is deemed to have survived; if the sex be the same, the older;
5. If one be under fifteen or over sixty, and the other between those ages, the latter is deemed to have survived.
(kk) That if there is a doubt, as between two or more persons who are called to succeed each other, as to which of them died first, whoever alleges the death of one prior to the other, shall prove the same; in the absence of proof, they shall be considered to have died at the same time.
PRESENTATION OF EVIDENCE (RULE 132)
The order in which an individual witness may be examined is as follows:
1. Direct examination by the proponent – the examination-in-chief of a witness by the party presenting him on the facts relevant to the issue.
2. Cross-examination by the opponent – Upon the termination of the direct examination, the witness may be cross-examined by the adverse party as to any matters stated in the direct examination, or connected therewith, with sufficient fullness and freedom to test his accuracy and truthfulness and freedom from interest or bias, or the reverse, and to elicit all important facts bearing upon the issue.
3. Re-direct examination by the proponent – After the cross-examination of the witness has been concluded, he may be re-examined by the party calling him, to explain or supplement his answers given during the cross-examination. On re-direct examination, questions on matters not dealt with during the cross-examination, may be allowed by the court in its discretion.
4. Re-cross-examination by the opponent – Upon the conclusion of the re-direct examination, the adverse party may re-cross-examine the witness on matters stated in his re-direct examination, and also on such other matters as may be allowed by the court in its discretion.
Leading questions – a question which suggests to the witness the answer which the examining party desires
GR: Leading questions not allowed.
- cross examination;
- Preliminary matters;
- difficulty in getting direct and intelligible answers from a witness who is
- ignorant, or
- a child of tender years, or
- feeble mind, or
- a deaf-mute;
- unwilling or hostile witness; or
- witness is an adverse party or an officer, director, or managing agent of a public or private corporation or of a partnership or association which is an adverse party.
Misleading question – one which assumes as true a fact not yet testified to by the witness, or contrary to that which he has previously stated.
Misleading questions are never allowed. No exceptions.
Sec. 11. Impeachment of adverse party’s witness. – A witness may be impeached by the party against whom he was called, by contradictory evidence, by evidence that his general reputation for truth, honesty, or integrity is bad, or by evidence that he has made at other times statements inconsistent with his present testimony, but not by evidence of particular wrongful acts, except that it may be shown by the examination of the witness, or the record of the judgment, that he has been convicted of an offense.
GR: The party producing a witness is not allowed to impeach his credibility.
Exceptions: When party may impeach his own witness (except evidence of bad character)
- an unwilling or hostile witness; or
- a witness who is an adverse party or an officer, director, or managing agent of a public or private corporation or of a partnership or association which is an adverse party.
Grounds for declaring a witness unwilling or hostile
- adverse interest
- unjustified reluctance to testify, or
- misled the party into calling him to the witness stand.
Consequences of being an unwilling, hostile, or adverse witness
- may be impeached by the proponent, except by evidence of bad character
- may also be impeached by the opponent
- may be cross-examined by the opponent, only on the subject matter of his direct examination
- proponent may ask leading questions
Sec. 36. Objection to evidence offered orally must be made immediately after the offer is made.
Objection to a question propounded in the course of the oral examination of a witness shall be made as soon as the grounds therefor shall become reasonably apparent.
An offer of evidence in writing shall be objected to within three (3) days after notice of the offer unless a different period is allowed by the court.
In any case, the grounds for the objections must be specified.
Grounds for objection – Hearsay, argumentative, leading, misleading, incompetent, irrelevant, best evidence rule, parol evidence rule, question has no basis
When evidence considered offered
People v. Franco, 269 SCRA 211 (1997) The court shall consider no evidence, even an extra-judicial confession, which has not been formally offered. Mere fact that evidence has been identified and marked in the course of the examination of a witness, without the contents being recited in his testimony, does not mean that it has been formally offered as evidence. Identification of documentary evidence is done in the course of the trial and is accompanied by the marking of the evidence as an exhibit, while the formal offer of documentary evidence is done only when the party rests its case.
Philippine Bank of Commerce v. CA, 195 SCRA 567 (1991) Where the genuineness and due execution of documents of an instrument attached to a complaint are deemed admitted by failure to specifically deny it under oath, such instruments are considered as evidence although they were not formally offered.
Rule 8, Sec. 8. How to contest such documents. — When an action or defense is founded upon a written instrument, copied in or attached to the corresponding pleading as provided in the preceding section, the genuineness and due execution of the instrument shall be deemed admitted unless the adverse party, under oath, specifically denies them, and sets forth what he claims to be the facts; but the requirement of an oath does not apply when the adverse party does not appear to be a party to the instrument or when compliance with an order for an inspection of the original instrument is refused.
When objection should be made
People v. Java, 227 SCRA 668 (1993) Objection to testimony on the ground of lack of a formal offer of the testimony should be done when the witness was called to testify.
Interpacific Transit, Inc. v. Aviles, 186 SCRA 385 (1990) Objection to documentary evidence must be made at the time it is formally offered (i.e. when the party rests its case) as an exhibit and not before. Objection prior to that time (e.g. identification of the evidence) is premature. Mere identification and marking is not equivalent to a formal offer of the evidence. A party may decide to not offer evidence already identified and marked.
WEIGHT AND SUFFICIENCY OF EVIDENCE (RULE 133)
In civil cases, the party having the burden of proof must establish his case by a preponderance of evidence. In determining where the preponderance or superior weight of evidence on the issues involved lies, the court may consider
- all the facts and circumstances of the case
- the witnesses’ manner of testifying
- their intelligence
- their means and opportunity of knowing the facts to which they are testifying
- the nature of the facts to which they testify
- the probability or improbability of their testimony
- their interest or want of interest
- their personal credibility so far as the same may legitimately appear upon the trial.
- number of witnesses, though the preponderance is not necessarily with the greater number.
A cause of action on the ground of reformation of instrument must be proven by clear and convincing evidence.
In a criminal case, the accused is entitled to an acquittal, unless his guilt is shown beyond reasonable doubt. Proof beyond reasonable doubt does not mean such a degree of proof as, excluding possibility of error, produces absolute certainty. Moral certainty only is required, or that degree of proof which produces conviction in an unprejudiced mind.
A defense of self-defense must be proven by clear and convincing evidence.
In cases filed before administrative or quasi-judicial bodies, a fact may be deemed established if it is supported by substantial evidence
Substantial evidence – that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion
Generally, the motive of the accused is immaterial in a criminal case, not being an essential element of the crime, hence, it does not need to be proved.
1. when there is no eyewitness and the suspicion is likely to fall on a considerable number of persons;
2. when there is doubt as to whether the accused is or is not the person who committed the offense;
3. when it is necessary to determine the sanity of the accused or the voluntariness of the act, the specific nature of the crime committed, or whether the shooting was intentional or accidental;
4. when the accused interposes self-defense or defense of stranger.
—- O —-
- Agpalo, Evidence; Francisco, Evidence;
- Albano, Remedial Law Reviewer;
- Regalado, Compendium of Remedial Law;
- Riano, Civil Procedure (A Restatement for the Bar)
- Riano, Evidence (A Restatement for the Bar).