EVIDENCE.pdf

EVIDENCE RULE 128 – GENERAL PROVISIONS Sec. 1. Evidence defined. – Evidence is the means, sanctioned by these rules, of ascertaining in a judicial proceeding the truth respecting a matter of fact. The rules of evidence determine: a) The relevancy of the facts...

EVIDENCE RULE 128 – GENERAL PROVISIONS Sec. 1. Evidence defined. – Evidence is the means, sanctioned by these rules, of ascertaining in a judicial proceeding the truth respecting a matter of fact. The rules of evidence determine: a) The relevancy of the facts, or what sort of facts may be proved in order to establish the existence of the right, duty, or liability defined by substantive law; b) The proof of facts, that is what sort of proof is to be given of those facts; c) The production of proof of relevant facts, that is, who is to give it and how it is to be given; and the effect of improper admission or rejection of evidence. Evidence is the means of proving a fact. It becomes necessary to present evidence in a case when the pleadings filed present factual issues. Factual issues arise when a party specifically denies material allegations in the adverse party’s pleading. Questions of fact exist when the doubt or difference arises as to the truth or falsehood of alleged facts. Questions of law exists when the doubt or difference arises as to what the law is on a certain state of facts. Proof v. Evidence Proof Evidence The establishment or refutation of an Something (including testimony, alleged fact by evidence; the documents and objects) that tends to persuasive effect of evidence in the prove or disprove the existence of an mind of a fact-finder alleged fact It results as the probative effect of The mode and manner of proving the evidence, and it is the persuasion of competent facts and circumstances on the mind resulting from a which a party relies to establish the consideration of evidence fact in dispute in judicial proceedings Effect or result of evidence Medium of proof Kinds of proof 1  1. Affirmative proof – evidence establishing the fact in dispute by a preponderance of evidence 2. Conditional proof (presumptive proof) – a fact that amounts to proof as long as there is no other fact amounting to disproof 3. Full proof – evidence that satisfies the minds of the judge of the truth of the fact in dispute beyond a reasonable doubt 4. Literal proof – written evidence 5. Negative proof – proof that establishes a fact by showing that its opposite is not or cannot be true 6. Positive proof – direct or affirmative proof 7. Proof beyond a reasonable doubt – proof that excludes every reasonable hypothesis except that which it tends to support 8. Testimonial proof – proof by the evidence of witnesses, rather than proof by written instrument Factum probandum – a fact to be proved; the ultimate facts to be proven or the proposition to be established Factum probans – probative or evidentiary fact; the material evidencing the proposition; evidentiary facts by which the factum probandum will be proved Classes of evidence 1. Relevant – evidence is relevant when it has a tendency in reason to establish the probability or improbability of a fact in issue. Test of relevancy: determinable by rules of logic and human experience 2. Competent – evidence is competent when it is not excluded by law in a particular case. 3. Testimonial – the testimony of a witness, usually on oath or affirmation, given by his word of mouth in the witness stand. Testimonial evidence commands greater weight than sworn statements because testimonies given during trial are more exact and elaborate. 4. Documentary – 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. 5. Object – also known as “real evidence” or “physical evidence”; those which are addressed to the senses of the court. 2 6. Direct – evidence which proves the fact in dispute without the aid of any inference or presumption. 7. Circumstantial – proof of facts from which, taken collectively, the existence of the particular fact in dispute may be inferred as a necessary or probable consequence. 8. Primary – evidence which affords the greatest certainty of the fact in question. 9. Secondary – evidence which is inferior to primary evidence and shows on its face that better evidence exists. 10. Positive – when a witness affirms that a fact did or did not occur. 11. Negative – when the witness states that he did not see or know the occurrence of a fact. 12. Corroborative – additional evidence of a different kind and character, tending to prove the same point. 13. Cumulative – evidence of the same kind and character as that already given tending to prove the same proposition. 14. Prima facie – that which suffices for the proof of a particular fact, until contradicted and overcome by other evidence. 15. Conclusive – that which is incontrovertible. 16. Rebuttal – that which is given to explain, repel, counteract or disprove facts given in evidence by the adverse party. 17. Sur-rebuttal – when plaintiff in rebuttal is permitted to introduce new matter, defendant should be permitted to introduce evidence in sur- rebuttal, and to decline to permit him to do so is error, especially where the evidence offered in sur-rebuttal is for the first time made competent by the evidence introduced by plaintiff in rebuttal but defendant should ask for the right to meet the new matter. 18. Expert – the testimony of one possessing in regard to a particular subject or department of human activity, knowledge not usually acquired by other persons. 19. Substantial – that amount of relevant evidence which a reasonable mind might accept as adequate to support a conclusion. 3 Sec. 2. Scope. – The rules of evidence shall be the same in all courts and in all trials and hearings, except as otherwise provided by law or these rules. GENERAL RULE: Sec. 2, Rule 128 of the Rules of Evidence provides the Rule on Uniformity in the application of the Rules. The same rules shall govern the trial in the lower courts and appellate courts, in civil and criminal cases. The reason is that the search for truth is subject to the same rules1. EXCEPTIONS: A. As to whether the rules on the presentation of evidence shall be applied strictly: 1. Cases covered by Regular Procedure – the rules apply strictly 2. Cases covered by the Rules on Summary Procedure – the rules are relaxed and the procedure is abbreviated. B. Between civil and criminal proceedings: 1. As to the quantum of evidence for the plaintiff to win: Proof of guilt of the accused beyond reasonable doubt v. preponderance of evidence 2. As to the presence of the parties: in civil cases the attendance of the parties is not required and they attend on their own volition; whereas in criminal cases, the presence of the accused is required unless he waived the same 3. As to the effect of the absence of a party: in civil cases, except during pre-trial, the proceedings may proceed even in the absence of the parties whereas in criminal cases, the trial cannot proceed if the accused was not notified 4. As to the rule on confessions: this applies only in criminal cases 5. As to the effect of an offer of compromise by the defendant: in criminal cases the offer is an implied admission of guilt; whereas it does not imply any liability in civil cases 6. As to the presumption of innocence: this applies only in criminal cases Sec. 3. Admissibility of evidence. – Evidence is admissible when it is relevant to the issue and not excluded by the Constitution, the law or these rules. Two axioms of admissibility 1. None but facts having rational probative value are admissible; 2. All but facts having rational probative value are admissible unless some specific law or rule forbids. 1 https://batas natin.com/law-library/remedial-law/evidence/1086-scope-of-evidence.html 4 Admissibility of evidence In order that evidence may be admissible, two requisites must concur, namely: 1) That it is relevant to the issue; 2) That it is competent, that is, it does not belong to the class of evidence which is excluded by the law or rules of evidence. Sec. 4. Relevancy; collateral matters. – 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. Relevancy of evidence Evidence is “relevant” when it has such a relation to the fact in issue as to induce a belief as to its existence or non-existence. Material evidence directly proves a fact in issue. Competency of evidence Evidence is “competent” when it is not excluded by the Constitution, the law or by the rules in a particular case. Principles which exclude relevant or material evidence 1. The exclusionary rule principle The principle which mandates that evidence obtained from an illegal arrest, unreasonable search or coercive investigation, or in violation of a particular law, must be excluded from the trial and will not be admitted as evidence. 2. The doctrine of the fruit of the poisonous tree Evidence will be excluded if it was gained through evidence uncovered in an illegal arrest, unreasonable search or coercive interrogation, or violation of a particular exclusionary law. Evidence excluded by the Constitution 1. Evidence obtained in violation of the right against unreasonable search and seizure; 2. Evidence obtained in violation of the privacy of communication and correspondence; 3. Evidence consisting of extra-judicial confessions without the assistance of counsel, or when the confessant was not properly apprised of his constitutional rights, or when the confession was coerced; 5  4. Evidence obtained in violation of the right against self-incrimination Collateral matters Collateral matters may be defined as those that are outside the controversy, or are not directly connected with the principal matter or issue in dispute, as indicated in the pleadings of the parties. Collateral matters are not allowed because they draw away the mind of the court from the point at issue, and excite prejudice and mislead it. They are, however, admissible when they tend in any reasonable degree to establish the probability or improbability of the fact in issue. Materiality of evidence Evidence is “material” when it is directed to prove a fact in issue as determined by the rules of substantive law and pleadings. “Materiality” of evidence means its quality of substantial importance to the particular issue, apart from its relevancy. Facts in issue – those facts which a plaintiff must prove in order to establish his claim and those facts which the defendant must prove in order to establish a defense set up by him, but only when the fact alleged by one party is not admitted by the other party. Facts relevant to the issue – those facts which render probable the existence or non-existence of a fact in issue, or some other relevant fact. Multiple admissibility An item of evidence may be logically relevant in several aspects, as leading to distinct inferences or as bearing upon different issues. Conditional admissibility The relevancy and admissibility of evidence of a particular fact hinges upon the proof of other facts not yet evidenced, and the party is unable to introduce them both at the same moment. When the adversary objects to the relevancy or competency of the offered fact, the court permits the admission of the evidence conditionally, upon the assurance of the offering counsel that he will connect the tendered evidence by proving later on the missing facts. Curative admissibility Suppose one party offers an inadmissible fact which is received, may the opponent afterwards offer similar inadmissible facts on the sole ground that they negate or explain or counter-balance the prior inadmissible fact? 6 Three different ways of treating the question: 1) The admission of an inadmissible fact, without objection, does not justify the opponent in rebutting by other inadmissible facts; 2) The opposite rule that the opponent may resort to similar inadmissible evidence; and 3) The intermediate rule, otherwise known as the Massachusetts rule; the opponent may reply with similar evidence whenever it is needed for removing an unfair prejudice which might otherwise have ensued from the original evidence. RULE 129 – WHAT NEED NOT BE PROVED Principles on the correlation among allegations, proof, and favorable judgment2 A. Each party must prove his allegation. Allegations in pleadings do not prove themselves. No party wins by having the most allegations, or that the allegations of causes of actions or defenses are crafted in the strongest and most persuasive language. All allegations remain but as allegations or propositions. Hence, every party to a case, who desires that a favorable judgment be rendered in his favor, must present evidence to support his claim, cause of action or defense be it in the form of object evidence, documents, or testimonies of witnesses. Likewise, the court limits itself to only such evidence as were properly presented and admitted during the trial and does not consider matters or facts outside the court. B. A party cannot prove what he did not allege (Non Alegata Non Proba) A party is not authorized to introduce evidence on matters which he never alleged. Hence, a plaintiff will not be permitted to prove a cause of action which is not stated in his complaint, and the defendant will not be permitted to prove a defense which he never raised in his Answer. In criminal cases, the prosecution is not permitted to prove a crime not described in the Information or to prove any aggravating circumstance not alleged in the Information. 2 https://batas natin.com/law-library/remedial-law/evidence/1088-what-need-not-be-proved-evidence.html 7  C. A party may be relieved from presenting evidence on certain matters, such as: 1. Matters or facts subject of judicial notice 2. Matters or facts subject of judicial admission 3. Matters or facts which are legally presumed 4. Matters or facts stipulated upon 5. Matters or facts which are exclusively within the knowledge of the opposing party 6. Matters or facts which are irrelevant 7. Matters or facts in the nature of negative allegations subject to certain exceptions. Sec. 1. 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, official acts of the legislative, executive and judicial department of the National Government of the Philippines, the laws of nature, the measure of time, and the geographical divisions. Judicial notice means the cognizance which courts may take, without proof, of facts which they are bound or are supposed to know by virtue of their office. Function of judicial notice It displaces evidence since, as it stands for proof, it fulfills the object which evidence is designed to fulfill and makes evidence unnecessary.3 Purpose: To save time, labor, and expenses. It is based on expediency and convenience.4 Mandatory judicial notice: 1. Existence and territorial extent of states; 2. Political history of states; 3. Forms of government and symbols of nationality; 4. The law of nations; 5. The admiralty and maritime courts of the world and their seals; 6. The political constitution and history of the Philippines; 3 Albano, Volume 2 4 https://batas natin.com/law-library/remedial-law/evidence/1088-what-need-not-be-proved-evidence.html 8  7. Official acts of the legislative, executive and judicial department of the National Government of the Philippines; 8. The laws of nature; 9. The measure of time; and 10. The geographical divisions. Sec. 2. 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. Sec. 3. Judicial notice, when hearing necessary. – During the pre-trial and the trial, the court, motu proprio or upon motion, shall hear the parties on the propriety of taking judicial notice of any matter. Before judgment or on appeal, the court, motu proprio or upon motion, may take judicial notice of any matter and shall hear the parties thereon if such matter is decisive of a material issue in the case. The doctrine of judicial notice rests on the wisdom and discretion of the courts. The power to take judicial notice is to be exercised by courts with caution; care must be taken that the requisite notoriety exists; and every reasonable doubt on the subject should be promptly resolved in the negative. Generally speaking, matters of judicial notice have three material requisites: (1) The matter must be one of common and general knowledge; (2) It must be well and authoritatively settled and not doubtful or uncertain; and (3) It must be known to be within the limits of the jurisdiction of the court. The principal guide in determining what facts may be assumed to be judicially known is that of notoriety. Hence, it can be said that judicial notice is limited to facts evidenced by public records and facts of general notoriety. To say that a court will take judicial notice of a fact is merely another way of saying that the usual form of evidence will be dispensed with if knowledge of the fact can be otherwise acquired. This is because the court assumes that the matter is so notorious that it will not be disputed. But judicial notice is not judicial knowledge. The mere personal knowledge of the judge is not the judicial knowledge of the court, and he is not authorized to make his individual knowledge of a fact, not generally or professionally known, the basis of his action. Judicial cognizance is taken only of those matters which are “commonly” known. 9 Things of “common knowledge”, of which courts take judicial notice, may be matters coming to the knowledge of men generally in the course of the ordinary experiences of life, or they may be matters which are generally accepted by mankind as true and are capable of ready and unquestioned demonstrations. Thus, facts which are universally known, and which may be found in encyclopedias, dictionaries or other publications, are judicially noticed, provided they are of such universal notoriety and so generally understood that they may be regarded as forming part of the common knowledge of every person.5 Sec. 4. Judicial admissions. – An admission, oral or written, made by the party in the course of the proceedings in the same case, does not require proof. The admission may be contradicted only by showing that it was made through palpable mistake or that the imputed admission was not, in fact, made. A judicial admission is an admission, verbal or written, made by a party in the course of the proceedings in the same case, which dispenses with the need for proof with respect to the matter or fact admitted. It may be contradicted only by showing that it was made through palpable mistake or that the imputed admission was not, in fact, made. A party who admits a fact cannot later challenge [the] fact as judicial admissions are a waiver of proof; production of evidence is dispensed with. A judicial admission also removes an admitted fact from the field of controversy. Consequently, an admission made in the pleadings cannot be controverted by the party making such admission and are conclusive as to such party, and all proofs to the contrary or inconsistent therewith should be ignored, whether objection is interposed by the party or not. The allegations, statements or admissions contained in a pleading are conclusive as against the pleader. A party cannot subsequently take a position contrary of or inconsistent with what was pleaded.6 RULE 130 – RULES OF ADMISSIBILITY Admissibility The character or quality which any material must necessarily possess for it to be accepted and allowed to be presented or introduced as evidence in court. 5Juan v. Juan and Laundromatic Corp., G.R. No. 221732, Aug. 23, 2017 citing State Prosecutors v. Muro, A.M. No. RTJ-92-876, Sept. 19, 1994 6 Leynes v. People, G.R. No. 224804, Sept. 21, 2016 citing Alfelor v. Halasan, 520 Phil. 982 (2006) 10 It answers the question: should the court allow the material to be used as evidence by the party?7 Weight The value given, or the significance or impact, or importance given to the material after it has been admitted; its tendency to convince or persuade. Hence, a particular evidence may be admissible but it has no weight. Conversely, an evidence may be of great weight or importance but it is not admissible. Axioms of Admissibility 1. None but facts having rational probative value are admissible - RELEVANCY 2. All facts having rational probative value are admissible unless some specific law or rule forbids) – COMPETENCY RELEVANCY 1. The material presented as evidence must affect the issue or question. It must have a bearing on the outcome of the case. It requires both: a) Rational or logical relevancy in that it has a connection to the issue and therefore it has a tendency to establish the fact which it is offered to prove. The evidence must, therefore, have probative value. b) Legal relevancy in that the evidence is offered to prove a matter which has been properly put in issue as determined by the pleadings in civil cases, or as fixed by the pre-trial order, or as determined by substantive law. If so, the matter has materiality. COMPETENCY – the evidence is not excluded by law or rules Principles which exclude relevant or material evidence: A. The Exclusionary Rule Principle – the principle which mandates that evidence obtained from an illegal arrest, unreasonable search or coercive interrogation, or in violation of a particular law, must be excluded from the trial and will not be admitted as evidence. B. The Doctrine of the Fruit of the Poisonous Tree – evidence will be excluded if it was gained through evidence uncovered in an illegal arrest, unreasonable search or coercive interrogation, or violation of a particular exclusionary law. The poisonous tree is the evidence seized in an illegal arrest, search or interrogation. The fruit of this poisonous tree is evidence discovered 7 https://batas natin.com/law-library/remedial-law/evidence/1087-admissibility-of-evidence.html 11  because of knowledge gained from the first illegal search, arrest, or interrogation or violations of a law. C. Evidence excluded by the Constitution a. Evidence obtained in violation of the right against unreasonable search and seizure b. Evidence obtained in violation of the privacy of communication and correspondence, except upon lawful order of the court or when public safety or order requires otherwise; c. Evidence consisting of extra-judicial confessions which are uncounseled, or when the confessant was not properly informed of his constitutional rights, or when the confession was coerced d. Evidence obtained in violation of the right against self- incrimination D. Exclusion by Rules of Evidence a. Rule Excluding Secondary Evidence when the original evidence is available b. The rule excluding hearsay evidence c. The rule excluding privileged communications OBJECT (REAL) EVIDENCE Sec. 1. Object as evidence. – 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. Coverage: The definition covers any material that may be seen, heard, smelled, felt, or touched. They are the “sensual evidence” and are grouped into: A. Those exhibited to the court or observed by it during the trial: 1. The weapons used, the articles recovered or seized as subjects of an offense, the effects of the crime, clothing apparels; 2. The wound or scars in the body in physical injury cases; 3. Inspection of the body of the accused and his personal appearance to determine his body built, physique, height, racial characteristics, and similarities with another, in paternity suits; 4. Observations as to the demeanor of witnesses; 5. Re-enactment or demonstrations of actions. B. Those which consists of the results of inspections of things or places conducted by the court (ocular inspections) outside the courtroom: 1. The observations made by the parties are duly recorded, pictures and other representations may be made such as sketches and measurements; 12  2. Examples: inspection of the crime scene; disputed boundaries; objects which cannot be brought to court C. Those which consists of the results of experiments, tests or demonstrations, which may be scientific tests/experiments, or practical tests/demonstrations provided the conduct of experiments/tests is subject to the discretion of the court: 1. Forensics or microanalysis: the application of scientific principles to answer questions of interest in the legal system. Applied most often in the examination of Trace Evidence to solve crimes based on the Principle of Contact a) Trace evidence – evidence found at a crime scene in small but measurable amounts such as hairs, fibers, soils, botanical materials, explosive residue b) Principle of contact: every person who is physically involved in a crime leaves some minute trace of his/her presence in the crime scene or in the victim and often takes something away from the crime scene and/or victim.8 Presentation of Object evidence for admissibility and admission Object evidence must generally be marked as Exhibit. It must also be identified as the object evidence it is claimed to be. It must be identified and testified to by a witness. After presentation and identification by the witness, it must be formally offered. DOCUMENTARY EVIDENCE Sec. 2. Documentary evidence. – Documents as evidence consist of writings, recordings, photographs, or any material containing letters, words, sounds, numbers, figures symbols, or their equivalent, or other modes of written expression offered as proof of their contents. Photographs include still pictures, drawings, stored images, x-ray film, motion pictures or videos. 1. ORIGINAL DOCUMENT RULE Sec. 3. Original document must be produced; exceptions. – When the subject of inquiry is the contents of a document, writing, recording, 8https://batasnatin.com/law-library/remedial-law/evidence/1089-rule-130-rules-of-court-admissibilit-of - evidence.html 13 photograph or other record, no evidence is admissible other than the original document itself, except in the following cases: (a)When the original is lost or destroyed, or cannot be produced in court, without bad faith on the part of the offeror; (b)When the original 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, or the original cannot be obtained by local judicial processes or procedures; (c) When 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; (d)When the original is a public record in the custody of a public officer or is recorded in a public office; and (e) When the original is not closely-related to a controlling issue. Sec. 4. Original of document – (a) An “original” of a document is the document itself or any counterpart intended to have the same effect by a person executing or issuing it. An “original” of a photograph includes the negative or any print therefrom. If data is stored in a computer or similar device, any printout or other output readable by sight or other means, shown to reflect the data accurately, is an “original”. (b) A “duplicate” is a counterpart produced by the same impression as the original, or from the same matrix, or by means of photography, including enlargements and miniatures, or by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent techniques which accurately reproduce the original. (c) A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original, or (2) in the circumstances, it is unjust or inequitable to admit the duplicate in lieu of the original 2. SECONDARY EVIDENCE 14 Sec. 5. When original document is unavailable. – When the original document has been lost or destroyed, or cannot be produced in court, the offeror, upon proof of its execution or existence and the cause of its unavailability without bad faith on his or her part, may prove its contents by a copy, or by recital of its contents in some authentic document, or by the testimony of witnesses in the order stated. Sec. 6. When original document is in adverse party’s custody or control. – If the document is in the custody or under the control of the adverse party, he or she must have reasonable notice to produce it. If after such notice and after satisfactory proof of its existence, he or she fails to produce the document, secondary evidence may be presented as in the case of its loss. Sec. 7. Summaries. – When the contents of documents, records, photographs, or numerous accounts are voluminous and cannot be examined in court without great loss of time, and the fact sought to be established is only the general result of the whole, the contents of such evidence may be presented in the form of a chart, summary, or calculation. The originals shall be available for examination or copying, or both, by the adverse party at a reasonable time and place. The court may order that they be produced in court. Sec. 8. Evidence admissible when original document is a public record. – When the original of a document is in the custody of a public officer or is recorded in a public office, its contents may be proved by a certified copy issued by the public officer in custody thereof. Sec. 9. Party who calls for document not bound to offer it. – A party who calls for the production of a document and inspects the same is not obliged to offer it as evidence. Save for certain cases, the original document must be presented during trial when the subject of the inquiry is the contents of the document. 9 This is the Best Evidence Rule (now Original Document Rule) provided under Rule 130, Sec. 3 of the Rules of Court. 9 Republic v. Marcos-Manotoc, et al., 681 Phil. 380, 402-403 (2012) 15 In case of unavailability of the original document, secondary evidence may be presented10 as provided for under Sections 5 to 7 of the same Rule. The best evidence rule requires that the original document be produced whenever its contents are the subject of inquiry,11 except in certain limited cases laid down in Sec. 3 of Rule 130. However, to set this rule in motion, a proper and timely objection is necessary.12 The best evidence rule requires that when the subject of inquiry is the contents of a document, no evidence is admissible other than the original document itself except in the instances mentioned in Sec. 3, Rule 130 of the Rules of court. As such, mere photocopies of documents are inadmissible pursuant to the best evidence rule. Nevertheless, evidence not objected to is deemed admitted and may be validly considered by the court in arriving at its judgment. Courts are not precluded to accept in evidence a mere photocopy of a document when no objection was raised when it was formally offered.13 The best evidence rule applies only when the content of such document is the subject of the inquiry. Where the issue is only as to whether such document was actually executed, or exists, or on the circumstances relevant to or surrounding its execution, the best evidence rule does not apply and testimonial evidence is admissible. Any other substitutionary evidence is likewise admissible without need for accounting for the original. Thus, where a document is presented to prove its existence or condition, it is offered not as documentary but as real evidence. Parol evidence of the fact of execution of the documents is allowed.14 In order to exclude evidence, the objection to the admissibility of evidence must be made at the proper time, and the grounds specified. Objection to evidence must be made at the time it is formally offered. In case of documentary evidence, offer is made after all the witnesses of the party making the offer have testified, specifying the purpose for which the evidence is being offered. It is only at this time, and not at any other, that objection to the documentary evidence may be made. And when a party failed to interpose a timely objection to evidence at the time they were offered in evidence, such objection shall be considered as waived. This is true even if by its nature the evidence is inadmissible and would have surely been rejected if 10 Dantis v. Maghinang, Jr., G.R. No. 191696, April 10, 2013 11 Country Bankers Insurance Corp. v. Lagman, 669 Phil. 205, 215 (2011) 12 Spouses Tapayan v. Martinez, G.R. No. 207786, Jan. 30, 2017 13 Lorenzana v. Lelina, G.R. No. 187850, August 17, 2016 14 Citibank, N.A. v. Sabeniano, 535 Phil. 384 (2006) citing Estrada v. Hon. Desierto,408 Phil. 194, 230 (2001) 16 it had been challenged at the proper time. Moreover, grounds for objections not raised at the proper time shall be considered waived, even if the evidence was objected to on some other ground. Thus, even on appeal, the appellate court may not consider any other ground of objection, except those that were raised at the proper time. Evidence is the means of ascertaining in a judicial proceeding the truth respecting a matter of fact, sanctioned by the Rules of Court.15 The purpose of introducing documentary evidence is to ascertain the truthfulness of a matter at issue, which can be the entire content or a specific provision/term in the document.16 3. PAROL EVIDENCE RULE Sec. 10. Evidence of written agreements. – 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, as between the parties and their successors in interest, no evidence of such terms other than the contents of the written agreement. However, a party may present evidence to modify, explain or add to the terms of the written agreement if he or she puts in issue in a verified pleading: (a)An intrinsic ambiguity, mistake or imperfection in the written agreement; (b)The failure of the written agreement to express the true intent and agreement of the parties thereto; (c) The validity of the written agreement; or (d)The existence of other terms agreed to by the parties or their successors in interest after the execution of the written agreement. The term “Agreement” includes wills. The parol evidence rule forbids any addition to or contradiction of the terms of a written instrument by testimony or other evidence purporting to show that, at or before the execution of the parties’ written agreement, other or different terms were agreed upon by the parties, varying the purport of the written contract. When an agreement has been reduced to writing, the parties cannot be permitted to adduce evidence to prove alleged practices which, to all purposes, would alter the terms of the written agreement. 15 Sec. 1, Rule 128 of the Rules of Court 16 Tan, Jr. v. Hosana, G.R. No. 190846,Feb. 3, 2016 17 Whatever is not found in the writing is understood to have been waived and abandoned.17 This rule is animated by a perceived wisdom in deferring to the contracting parties’ articulated intent. In choosing to reduce their agreement into writing, they are deemed to have done so meticulously and carefully, employing specific – frequently, even technical – language as are appropriate to their context. From an evidentiary standpoint, this is also because “oral testimony... coming from a party who has an interest in the outcome of the case, depending exclusively on human memory, is not as reliable as written or documentary evidence. Spoken words could be notoriously unreliable unlike a written contract which speaks of a uniform language.” 18 This, however, is merely a general rule. Provided that a party puts in issue in its pleading any of the exceptions in the second paragraph of Rule 130, Sec. 10 of the Revised Rules on Evidence, a party may present evidence to modify, explain or add to the terms of the agreement. Moreover, as with all possible objections to the admission of evidence, a party’s failure to timely object is deemed a waiver, and parol evidence may then be entertained. 19 In sum, two things must be established for parol evidence to be admitted: 1) that the existence of any of the four exceptions has been put in issue in a party’s pleading or has not been objected to by the adverse party; and 2) that the parol evidence sought to be presented serves to form the basis of the conclusion proposed by the presenting party.20 4. INTERPRETATION OF DOCUMENTS Sec. 11. Interpretation of a writing according to its legal meaning. – The language of a writing is to be interpreted according to the legal meaning it bears in the place of its execution, unless the parties intended otherwise. Sec. 12. Instrument construed so as to give effect to all provisions. – in the construction of an instrument, where there are several provisions or particulars, such a construction is, if possible, to be adopted as will give effect to all. 17 Norton Resources and Development Corp., v. All Asia Bank Corp., 620 Phil. 381 (2009) 18 Ortanez v. CA, 334 Phil. 514, 518 (1997) 19 Spouses Paras v. Kimwa Construction and Development Corp., G.R. No. 171601, April 8, 2015 20 Id. at 19 18 Sec. 13. Interpretation according to intention; general and particular provisions. – In the construction of an instrument, the intention of the parties is to be pursued; and when a general and a particular provision are inconsistent, the latter is paramount to the former. So a particular intent will control a general one that is inconsistent with it. Sec. 14. Interpretation according to circumstances. – For the proper construction of an instrument, the circumstances under which it was made, including the situation of the subject thereof and of the parties to it, may be shown, so that the judge may be placed in the position of those whose language he or she is to interpret. Sec. 15. Peculiar signification of terms. – The terms of a writing are presumed to have been used in their primary and general acceptation, but evidence is admissible to show that they have a local, technical, or otherwise peculiar signification, and were so used and understood in the particular instance, in which case the agreement must be construed accordingly. Sec. 16. Written words control printed. – When an instrument consists partly of written words and partly of a printed form, and the two are inconsistent, the former controls the latter. Sec. 17. Experts and interpreters to be used in explaining certain writings. – When the characters in which an instrument is written are difficult to be deciphered, or the language is not understood by the court, the evidence of persons skilled in deciphering the characters, or who understand the language, is admissible to declare the characters or the meaning of the language. Sec. 18. Of two constructions, which preferred. – When the terms of an agreement have been intended in a different sense by the different parties to it, that sense is to prevail against either party in which he or she supposed the other understood it, and when different constructions of a provision are otherwise equally proper, that is to be taken which is the most favorable to the party in whose favor the provision was made. Sec. 19. Construction in favor of natural right. – When an instrument is equally susceptible of two interpretations, one in favor of natural right and the other against it, the former is to be adopted. Sec. 20. Interpretation according to usage. – An instrument may be construed according to usage, in order to determine its true character. The rule on interpretation of documents is self-explanatory. 19 TESTIMONIAL EVIDENCE 1. QUALIFICATION OF WITNESSES Sec. 21. Witnesses; their qualifications. – All persons who can perceive, and perceiving, can make known their perception to others, may be witnesses. Religious or political belief, interest in the outcome of the case, or conviction of a crime, unless otherwise provided by law, shall not be a ground for disqualification. [Sec. 21. Disqualification by reason of mental incapacity or immaturity (DELETED)] As the rules show, anyone who is sensible and aware of a relevant event or incident, and can communicate such awareness, experience, or observation to others can be a witness. Age, religion, ethnicity, gender, educational attainment, or social status are not necessary to qualify a person to be a witness, so long as he does not possess any of the disqualifications as listed in the rules. The generosity with which the Rules of Court allows people to testify is apparent, for religious beliefs, interest in the outcome of the case, and conviction of a crime unless otherwise provided by law are not grounds for disqualification.21 The assessment of the credibility of witnesses is within the province of the trial court.22 All questions bearing on the credibility of witnesses are best addressed by the trial court by virtue of its unique position to observe the crucial and often incommunicable evidence of the witnesses’ deportment while testifying, something which is denied to the appellate court because of the nature and function of its office.23 Sec. 22. Testimony confined to personal knowledge. – A witness can testify only to those facts which he or she knows of his or her personal knowledge; that is, which are derived from his or her own perception. [Sec. 36. Testimony generally confined to personal knowledge; hearsay excluded is TRANSPOSED] 21 Cavili v. Judge Florendo, G.R. No. L-68680, October 9, 1987 22 People v. Abaigar, G.R. No. 19942, April 7, 2014 23 People v. Barcela, G.R. No. 208760, April 23, 2014 20 It is a basic rule in evidence that a witness can testify only on the facts that he knows of his own personal knowledge, i.e., those which are derived from his own perception. A witness may not testify on what he merely learned, read or heard from others because such testimony is considered hearsay and may not be received as proof of the truth of what he has learned, read or heard.24 Hearsay evidence is evidence, not of what the witness knows himself but, of what he has heard from others; it is not only limited to oral testimony or statements but likewise applies to written statements.25 The personal knowledge of a witness is a substantive prerequisite for accepting testimonial evidence that establishes the truth of a disputed fact.26 A witness bereft of personal knowledge of the disputed fact cannot be called upon for that purpose because his testimony derives its value not from the credit accorded to him as a witness presently testifying but from the veracity and competency of the extrajudicial source of his information.27 Sec. 23. Disqualification by reason of marriage. – During their marriage, the husband or the wife cannot testify against the other without the consent of the affected spouse, 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. The reasons given for the rule are: 1. There is identity of interests between husband and wife; 2. If one were to testify for or against the other, there is consequent danger of perjury; 3. The policy of the law is to guard the security and confidences of private life, even at the risk of an occasional failure of justice, and to prevent domestic disunion and unhappiness; and 4. Where there is want of domestic tranquility there is danger of punishing one spouse through the hostile testimony of the other.28 But like all other general rules, the marital disqualification rule has its own exceptions, both in civil actions between the spouses and in criminal cases for offenses committed by one against the other. Like the rule itself, the exceptions are backed by sound reasons which, in the excepted cases, outweigh those in support of the general rule. For instance, where the marital 24 Gulam v. Sps. Santos, 532 Phil. 168, 178 (2006) 25 Miro v. vda. De Erederos, 721 Phil. 772, 790 (2013) 26 Da. Jose, et al., v. Angeles, et al., 720 Phil. 451, 465 (2013) 27 Patula v. People, 685 Phil. 376, 393 (2012) 28 People v. Francisco, G.R. No. L-568, July 16, 1947 21 and domestic relations are so strained that there is no more harmony to be preserved nor peace and tranquility which may be disturbed, the reason based upon such harmony and tranquility fails. In such a case, identity of interests disappears and the consequent danger of perjury based on that identity is non-existent. Likewise, in such a situation, the security and confidences of private life, which the law aims at protecting, will be nothing but ideals, which through their absence, merely leave a void in the unhappy home.29 Sec. 24. Disqualification by reason of privileged communication. – The following persons cannot testify as to matters learned in confidence in the following cases: (a)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; (b)An attorney or person reasonably believed by the client to be licensed to engage in the practice of law cannot, without the consent of the client, be examined as to any communication made by the client to him or her, or his or her advice given thereon in the course of, or with a view to, professional employment, nor can an attorney’s secretary, stenographer, or clerk, or other persons assisting the attorney be examined without the consent of the client and his or her employer, concerning any fact the knowledge of which has been acquired in such capacity, except in the following cases: (i) Furtherance of crime or fraud. If the services or advice of the lawyer were sought or obtained to enable or aid to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud; (ii) Claimants through same deceased client. As to a communication relevant to an issue between parties who claim through the same deceased client, regardless of whether the claims are by testate or intestate or by inter vivos transaction; 29 Id. 22  (iii) Breach of duty by lawyer or client. As to a communication relevant to an issue of breach of duty by the lawyer to his or her client, or by the client to his or her lawyer; (iv) Document attested by the lawyer. As to a communication relevant to an issue concerning an attested document to which the lawyer is an attesting witness; or (v) Joint client. As to a communication relevant to a matter of common interest between two or more clients if the communication was made by any of them to a lawyer or consulted in common, when offered in an action between any of the clients, unless they have expressly agreed otherwise. (c) A physician, psychotherapist or person reasonably believed by the patient to be authorized to practice medicine or psychotherapy cannot in a civil case, without the consent of the patient, be examined as to any confidential communication made for the purpose of diagnosis or treatment of the patient’s physical, mental or emotional condition, including alcohol or drug addiction, between the patient and his or her physician or psychotherapist. This privilege also applies to persons, including members of the patient’s family, who have participated in the diagnosis or treatment of the patient under the direction of the physician or psychotherapist. A “psychotherapist” is: (a) A person licensed to practice medicine engaged in the diagnosis or treatment of a mental or emotional condition, or (b) A person licensed as a psychologist by the government while similarly engaged. (d) A minister, priest or person reasonably believed to be so cannot, without the consent of the affected person, be examined as to any communication or confession made to or any advice given by him or her, in his or her professional character, in the course of discipline enjoined by the church to which the minister or priest belongs. 23 The physician-client privileged communication rule essentially means that a physician who gets information while professionally attending a patient cannot in a civil case be examined without the patient’s consent as to any facts which would blacken the latter’s reputation. This rule is intended to encourage the patient to open up to the physician, relate to him the history of his ailment, and give him access to his body, enabling the physician to make a correct diagnosis of that ailment and provide the appropriate cure. Any fear that a physician could be compelled in the future to come to court and narrate all that had transpired between him and the patient might prompt the latter to clam up, thus putting his own health at great risk.30 (e) A public officer cannot be examined during or after his or her tenure as to communications made to him or her in official confidence, when the court finds that the public interest would suffer by the disclosure. The communication shall remain privileged, even in the hands of a third person who may have obtained the information, provided that the original parties to the communication took reasonable precaution to protect its confidentiality. 2. TESTIMONIAL PRIVILEGE Sec. 25. Parental and filial privilege. – No person shall be compelled to testify against his or her parents, other direct ascendants, children or other direct descendants, except when such testimony is indispensable in a crime against that person or by one parent against the other. Sec. 26. Privilege relating to trade secrets. – A person cannot be compelled to testify about any trade secret, unless the non- disclosure will conceal fraud or otherwise work injustice. When disclosure is directed, the court shall take such protective measure as the interest of the owner of the trade secret and of the parties and the furtherance of justice may require. 3. ADMISSIONS AND CONFESSIONS Sec. 27. Admission of a party. – The act, declaration or omission of a party as to a relevant fact may be given in evidence against him or her. 30 Francisco, The Revised Rules of Court of the Philippines, Volume VII, Part 1, 1997 ed., p. 282 24 A judicial admission is an admission made by a party in the course of the proceedings in the same case, for purposes of the truth of some alleged fact, which said party cannot thereafter disprove.31 Sec. 28. Offer of compromise not admissible. – In civil cases, an offer of compromise is not an admission of any liability, and is not admissible in evidence against the offeror. Neither is evidence of conduct nor statements made in compromise negotiations admissible, except evidence otherwise discoverable or offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution. In criminal cases, except those involving quasi-offenses (criminal negligence) or those allowed by law to be compromised, an offer of compromise by the accused may be received in evidence as an implied admission of guilt. A plea of guilty later withdrawn or an unaccepted offer of a plea of guilty to a lesser offense is not admissible in evidence against the accused who made the plea or offer. Neither is any statement made in the course of plea bargaining with the prosecution, which does not result in a plea of guilty or which results in a plea of guilty later withdrawn, admissible. An offer to pay, or the payment of medical, hospital or other expenses occasioned by an injury, is not admissible in evidence as proof of civil or criminal liability for the injury. In order to be considered as an implied admission of guilt, the offer of compromise must have been made when the criminal proceedings are ongoing. If it is made prior to the filing of the criminal complaint or when there are no criminal proceedings yet, then such offer cannot be taken as an admission of guilt on the part of the offeror.32 Sec. 29. Admission by third party. – The rights of a party cannot be prejudiced by an act, declaration, or omission of another, except as hereinafter provided. 31 V Herrera, Remedial Law, 1999 Edition, p. 107. 32 San Miguel Corporation v. Kalalo, G.R. No. 185522, June 13, 2012 25 Sec. 30. Admission by co-partner or agent. – the act or declaration of a partner or agent authorized by the party to make a statement concerning the subject, or within the scope of his or her authority, and during the existence of the partnership or agency, may be given in evidence against such party after the partnership or agency is shown by evidence other than such act or declaration. The same rule applies to the act or declaration of a joint owner, joint debtor, or other person jointly interested with the party. Sec. 31. Admission by conspirator. – The act or declaration of a conspirator in furtherance of the conspiracy and during its existence may be given in evidence against the co-conspirator after the conspiracy is shown by evidence other than such act of declaration. Sec. 32. Admission by privies. – Where one derives title to property from another, the latter’s act, declaration, or omission, in relation to the property, is evidence against the former if done while the latter was holding the title. Sec. 33. Admission by silence. – An act or declaration made in the presence and within the hearing or observation of a party who does or says nothing when the act or declaration is such as naturally to call for action or comment if not true, and when proper and possible for him or her to do so, may be given in evidence against him or her. Sec. 34. Confession. – The declaration of an accused acknowledging his or her guilt of the offense charged, or of any offense necessarily included therein, may be given in evidence against him or her. 4. PREVIOUS CONDUCT AS EVIDENCE Sec. 35. Similar acts as evidence. – Evidence that one did or did not do a certain thing at one time is not admissible to prove that he or she did or did not do the same or similar thing at another time; but it may be received to prove a specific intent or knowledge, identity, plan, system, scheme, habit, custom or usage, and the like. Sec. 36. Unaccepted offer. – An offer in writing to pay a particular sum of money or to deliver a written instrument or specific personal property is, if rejected without valid cause, equivalent to the actual production and tender of the money, instrument, or property. [Sec. 36. Testimony generally confined to personal knowledge; hearsay excluded. (Transposed to Sec. 22. Testimony confined to personal knowledge.)] 26  5. HEARSAY Sec. 37. Hearsay. – Hearsay is a statement other than one made by the declarant while testifying at a trial or hearing, offered to prove the truth of the facts asserted therein. A statement is (1) an oral or written assertion or (2) a non-verbal conduct of a person, if it is intended by him or her as an assertion. Hearsay evidence is inadmissible except as otherwise provided in these Rules. A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (a) inconsistent with the declarant’s testimony, and was given under oath subject to the penalty of perjury at a trial, hearing or other proceeding, or in a deposition; (b) consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive; or (c) one of identification of a person made after perceiving him or her. 6. EXCEPTIONS TO THE HEARSAY RULE Sec. 38. Dying declaration. – The declaration of a dying person, made under the consciousness of an impending death, may be received in any case wherein his or her death is the subject of inquiry, as evidence of the cause and surrounding circumstances of such death. Sec. 39. Statement of decedent or person of unsound mind. – In an action against an executor or administrator or other representative of a deceased person, or against a person of unsound mind, upon a claim or demand against the estate of such deceased person or against such person of unsound mind, where a party or assignor of a party or a person in whose behalf a case is prosecuted testifies on a matter of fact occurring before the death of the deceased person or before the person became of unsound mind, any statement of the deceased or the person of unsound mind, may be received in evidence if the statement was made upon the personal knowledge of the deceased or the person of unsound mind at a time when the matter had been recently perceived by him or her and while his or her recollection was clear. Such statement, however, is inadmissible if made under circumstances indicating its lack of trustworthiness. Sec. 40. 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 27 contrary to the declarant’s own interest that a reasonable person in his or her position would not have made the declaration unless he or she believed it to be true, may be received in evidence against himself or herself or his or her successors in interest and against third persons. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. Sec. 41. Act or declaration about pedigree. – The act or declaration of a person deceased or unable to testify, in respect to the pedigree of another person related to him or her by birth, adoption, or marriage or, in the absence thereof, with whose family he or she was so intimately associated as to be likely to have accurate information concerning his or her pedigree, 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. Sec. 42. 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, affinity, or adoption. Entries in family bibles or other family books or charts, engraving on rings, family portraits and the like, may be received as evidence of pedigree. Sec. 43. Common reputation. – Common reputation existing previous to the controversy, as to boundaries of or customs affecting lands in the community and reputation as to events of general history important to the community, 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. Sec. 44. Part of the res gestae. – Statements made by a person while a startling occurrence is taking place or immediately prior or subsequent thereto, under the stress of excitement caused by the occurrence 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. Sec. 45. Records of regularly conducted business activity. – A memorandum, report, record or data compilation of acts, events, 28 conditions, opinions, or diagnoses, made by writing, typing, electronic, optical or other similar means at or near the time of or from transmission or supply of information by a person with knowledge thereof, and kept in the regular course or conduct of a business activity, and such was the regular practice to make the memorandum, report, record, or data compilation by electronic, optical or similar means, all of which are shown by the testimony of the custodian or other qualified witnesses, is excepted from the rule on hearsay evidence. Sec. 46. Entries in official records. – Entries in official records made in the performance of his or her 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. Sec. 47. 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. Sec. 48. 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 or her profession or calling as expert in the subject. Sec. 49. Testimony or deposition at a former proceeding. – The testimony or deposition of a witness deceased or out of the Philippines or who cannot, with due diligence, be found therein, or is unavailable or otherwise 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 or her. Sec. 50. Residual exception. – A statement not specifically covered by any of the foregoing exceptions, having equivalent circumstantial guarantees of trustworthiness, is admissible if the court determines that (a) the statement is offered as evidence of a material fact; (b) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (c) the general purposes of 29 these rules and the interest of justice will be best served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent makes known to the adverse party, sufficiently in advance of the hearing, or by the pre-trial stage in the case of a trial of the main case, to provide the adverse party with a fair opportunity to prepare to meet it, the proponent’s intention to offer the statement and the particulars of it, including the name and address of the declarant. 7. OPINION RULE Sec. 51. General rule. – The opinion of a witness is not admissible, except as indicated in the following sections. Sec. 52. Opinion of expert witness. – The opinion of a witness on a matter requiring special knowledge, skill, experience, training or education, which he or she is shown to possess, may be received in evidence. Sec. 53. Opinion of ordinary witnesses. – The opinion of a witness, for which proper basis is given, may be received in evidence regarding – (a)The identity of a person about whom he or she has adequate knowledge; (b)A handwriting with which he or she has sufficient familiarity; and (c) The mental sanity of a person with whom he or she is sufficiently acquainted. The witness may also testify on his or her impressions of the emotion, behavior, condition or appearance of a person. 8. CHARACTER EVIDENCE Sec. 54. Character evidence not generally admissible; exceptions. – Evidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except: (a)In criminal cases: (1) The 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. 30  (2) The accused may prove his or her good moral character, pertinent to the moral trait involved in the offense charged. However, the prosecution may not prove his or her bad moral character unless on rebuttal. (b)In civil cases: Evidence of the moral character of a party in a civil case is admissible only when pertinent to the issue of character involved in the case. (c) In criminal and civil cases: Evidence of the good character of a witness is not admissible until such character has been impeached. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instance of conduct. In cases in which character or a trait of character of a person is essential element of a charge, claim or defense, proof may also be made of specific instances of that person’s conduct. RULE 131 – BURDEN OF PROOF, BURDEN OF EVIDENCE AND PRESUMPTIONS Sec. 1. Burden of proof and burden of evidence. – Burden of proof is the duty of a party to present evidence on the facts in issue necessary to establish his or her claim or defense by the amount of evidence required by law. Burden of proof never shifts. Burden of evidence is the duty of a party to present evidence sufficient to establish or rebut a fact in issue to establish a prima facie case. Burden of evidence may shift from one party to the other in the course of the proceedings, depending on the exigencies of the case. Sec. 2. Conclusive presumptions. – The following are instances of conclusive presumptions: (a)Whenever a party has, by his or her own declaration, act, or omission, intentionally and deliberately led another to believe a particular thing 31  true, and to act upon such belief, he or she cannot, in any litigation arising out of such declaration, act or omission, be permitted to falsify it; and (b)The tenant is not permitted to deny the title of his or her landlord at the time of the commencement of the relation of landlord and tenant between them. Sec. 3. 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 or her voluntary act; (d)That a person takes ordinary care of his or her 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 latter one 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 or her; (k)That a person in possession of an order on himself or herself for the payment of the money, or the delivery of anything, has paid the money or delivered the thing accordingly; (l) That a person acting in a public office was regularly appointed or elected to it; 32 (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 arbitration 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 was 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 or she is considered dead for all purposes, except for those of succession. The absentee shall not be considered dead for the purpose of opening his or her succession until after an absence of ten years. If he or she disappeared after the age of 75 years, an absence of five years shall be sufficient in order that his or her succession may be opened. The following shall be considered dead for all purposes including the division of the estate among heirs: (1) A person on board a vessel 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; 33  (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; and (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 a danger of death, 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 summary proceedings as provided in the Family Code and in the rules for 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 ordinary nature habits of life; (z) That persons acting as copartners have entered into a contract of co- partnership; (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 evidence of credit, are equal; (dd) That if the marriage is terminated and the mother contracted another marriage within 300 days after such termination of the former 34  marriage, these rules shall govern in the absence of proof to the contrary: (1) A child born before 180 days after the solemnization of the subsequent marriage is considered to have been conceived during such marriage, even though it be born within 3oo days after the termination of the former marriage; and (2) A child born after 180 days following the celebration of the subsequent marriage is considered to have been conceived during such marriage, even though it be born within 300 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) The a trustee or other person whose duty it was to convey real property to a particular person has actually conveyed it to him or her when such presumption is necessary to perfect the title of such person or his or her 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 the age of the sexes, according to the following rules: 1. If both were under the age of 15 years, the older is deemed to have survived; 2. If both were above the age of 60, the younger is deemed to have survived; 3. If one is under 15 and the other above 60, the former is deemed to have survived; 35  4. If both be over 15 and under 60, and the sex be different, the male is deemed to have survived; if the sex be the same, the older; and 5. If one be under 15 or over 60, and the other between those ages, the latter is deemed to have survived; (kk) That if there is a doubt 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. Sec. 4. No presumption of legitimacy or illegitimacy. – There is no presumption of legitimacy or illegitimacy of a child born after 300 days following the dissolution of the marriage or the separation of the spouses. Whoever alleges the legitimacy or illegitimacy of such child must prove his or her allegation. Sec. 5. Presumptions in civil actions and proceedings. – In all civil actions and proceedings not otherwise provided for by the law or these rules, a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption. If presumptions are inconsistent, the presumption that is founded upon weightier considerations of policy shall apply. If considerations of policy are of equal weight, neither presumption applies. Sec. 6. Presumption against an accused in criminal cases. – If a presumed fact that establishes guilt, is an element of the offense charged, or negates a defense, the existence of the basic fact must be proved beyond reasonable doubt and the presumed fact follows the basic fact beyond reasonable doubt. RULE 132 – PRESENTATION OF EVIDENCE A. EXAMINATION OF WITNESSES Sec. 1. Examination to be done in open court. – The examination of witnesses presented in a trial or hearing shall be done in open court, and under oath or affirmation. Unless the witness is incapacitated to speak, or the 36 question calls for a different mode of answer, the answers of the witness shall be given orally. Sec. 2. Proceedings to be recorded. – The entire proceedings of a trial or hearing, including the questions propounded to a witness and his or her answers thereto, and the statements made by the judge or any of the parties, counsel, or witnesses with reference to the case, shall be recorded by means of shorthand or stenotype or by other means of recording found suitable by the court. A transcript of the record of the proceedings made by the official stenographer, stenotypist or recorder and certified as correct by him or her, shall be deemed prima facie a correct statement of such proceedings. Sec. 3. Rights and obligations of a witness. – A witness must answer questions, although his or her answers may tend to establish a claim against him or her. However, it is the right of a witness: (1) To be protected from irrelevant, improper, or insulting questions, and from harsh or insulting demeanor; (2) Not to be detained longer than the interests of justice require; (3) Not to be examined except only as to matters pertinent to the issue; (4) Not to give an answer which will tend to subject him or her to a penalty for an offense unless otherwise provided by law; or (5) Not to give an answer which will tend to degrade his or her reputation, unless it be to the very fact at issue or to a fact from which the fact in issue would be presumed. But a witness must answer to the fact of his or her previous final conviction for an offense. Sec. 4. Order in the examination of an individual witness. – The order in which an individual witness may be examined is as follows: (a)Direct examination by the proponent; (b)Cross-examination by the opponent; (c) Re-direct examination by the proponent; (d)Rec-cross examination by the opponent. 37 Sec. 5. Direct examination. – Direct examination is the examination-in- chief of a witness by the party presenting him or her on the facts relevant to the issue. Sec. 6. Cross-examination; its purpose and extent. – Upon termination of the direct examination, the witness may be cross-examined by the adverse party on any relevant matter, with sufficient fullness and freedom to test his or her accuracy and truthfulness and freedom from interest or bias, or the reverse, and to elicit all important facts bearing upon the issue. Sec. 7. Re-direct examination; its purpose and extent. – After the cross-examination of the witness has been concluded, he or she may be re- examined by the party calling him or her to explain or supplement his or her 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. Sec. 8. Re-cross examination. – Upon the conclusion of the re-direct examination, the adverse party may re-cross-examine the witness on matters stated in his or her re-direct examination, and also on such other matters as may be allowed by the court in its discretion. Sec. 9. Recalling witness. – After the examination of a witness by both sides has been concluded, the witness cannot be recalled without leave of the court. The court will grant or withhold leave in its discretion, as the interests of justice may require. Sec. 10. Leading and misleading questions. – A question which suggests to the witness the answer which the examining party desires is a leading question. It is not allowed, except: (a)On cross-examination; (b)On preliminary matters; (c) When there is difficulty in getting direct and intelligible answers from a witness who is ignorant, a child of tender years, is of feeble mind, or a deaf-mute; (d)Of an unwilling or hostile witness; or (e) Of 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. 38 A misleading question is one which assumes as true a fact not yet testified to by the witness, or contrary to that which he or she has previously stated. It is not allowed. Sec. 11. Impeachment of adverse party’s witness. – A witness may be impeached by the party against whom he or she was called, by contradictory evidence, by evidence that his or her general reputation for truth, honesty, or integrity is bad, or by evidence that he or she has made at other times statements inconsistent with his or her present testimony, but not by evidence of particular wrongful acts, except that it may be shown by the examination of the witness, or record of the judgment, that he or she has been convicted of an offense. Sec. 12. Impeachment by evidence of conviction of crime. – For the purpose of impeaching a witness, evidence that he or she has been convicted by final judgment of a crime shall be admitted if (a) the crime was punishable by a penalty in excess of one year; or (b) the crime involved moral turpitude, regardless of the penalty. However, evidence of a conviction is not admissible if the conviction has been the subject of an amnesty or annulment of the conviction. Sec. 13. Party may not impeach his or her own witness. – Except with respect to witnesses referred to in paragraphs (d) and (e) of Section 10 of this Rule, the party presenting the witness is not allowed to impeach him or her credibility. A witness may be considered as unwilling or hostile only if so declared by the court upon adequate showing of his or her adverse interest, unjustified reluctance to testify, or his or her having misled the party into calling him or her to the witness stand. The unwilling or hostile witness so declared, or the witness who is an adverse party, may be impeached by the party presenting him or her in all respects as if he or she has been called by the adverse party, except by evidence of his or her bad character. He or she may also be impeached and cross-examined by the adverse party, but such cross-examination must only be on the subject matter of his or her examination-in-chief. Sec. 14. How witness impeached by evidence of inconsistent statements. – Before a witness can be impeached by evidence that he or she has made at other times statements inconsistent with his or her present testimony, the statements must be related to him or her, with the circumstances of the times and places and the persons present, and he or she 39 must be asked whether he or she made such statements, and if so, allowed to explain them. If the statements be in writing, they must be shown to the witness before any question is put to him or her concerning them. [Sec. 14. Evidence of good character of witness. (incorporated in Sec. 54, Rule 130)] Sec. 15. Exclusion and separation of witnesses. – The court, motu proprio or upon motion, shall order witnesses excluded so that they cannot hear the testimony of other witnesses. This rule does not authorize exclusion of (a) a party who is a natural person, (b) a duly designated representative of a juridical entity which is a party to the case, (c) a person whose presence is essential to the presentation of the party’s cause, or (d) a person authorized by a statute to be present. The court may also cause witnesses to be kept separate and to be prevented from conversing with one another, directly or through intermediaries, until all shall have been examined. Sec. 16. When witness may refer to memorandum. – A witness may be allowed to refresh his or her memory respecting a fact by anything written or recorded by himself or herself, or under his or her direction, at the time when the fact occurred, or immediately thereafter, or at any other time when the fact was fresh in his or her memory and he or she knew that the same was correctly written or recorded; but in such case, the writing or record must be produced and may be inspected by the adverse party, who may, if he or she chooses, cross-examine the witness upon it and may read it in evidence. A witness may also testify from such a writing or record, though he or she retains no recollection of the particular facts, if he or she is able to swear that the writing or record correctly stated the transaction when made; but such evidence must be received with caution. Sec. 17. When part of transaction, writing or record given in evidence, the remainder admissible. – When part of an act, declaration, conversation, writing or record is given in evidence by one party, the whole of the same subject may be inquired into by the other, and when a detached act, declaration, conversation, writing or record is given in evidence, any other act, declaration, conversation, writing or record necessary to its understanding may also be given in evidence. Sec. 18. Right to inspect writing shown to witness. – Whenever a writing is shown to a witness, it may be inspected by the adverse party. 40  B. AUTHENTICATION AND PROOF OF DOCUMENTS Sec. 19. Classes of documents. – For the purpose of their presentation in evidence, documents are either public or private. Public documents are: (a)The written acts, or records of the sovereign authority, official bodies and tribunals, and public officers, whether of the Philippines, or of a foreign country; (b)Documents acknowledged before a notary public except last wills and testaments; (c) Documents that are considered public under treaties and conventions which are in force between the Philippines and the country of source; and (d)Public records, kept in the Philippines, of private documents required by law to be entered therein. All other writings are private. Sec. 20. Proof of private documents. – Before any private document offered as authentic is received in evidence, its due execution and authenticity must be proved by any of the following means: (a)By anyone who saw the document executed or written; (b)By evidence of the genuineness of the signature or handwriting of the maker; or (c) By other evidence showing its due execution and authenticity. Any other private document need only be identified as that which it is claimed to be. Sec. 21. When evidence of authenticity of private document not necessary. – Where a private document is more than 30 years old, is produced from a custody in which it would naturally be found if genuine, and is unblemished by any alterations or circumstances of suspicion, no other evidence of its authenticity need be given. Sec. 22. How genuineness of handwriting proved. – The handwriting of a person may be proved by any witness who believes it to be the handwriting of such person because he or she has seen the person write, or has seen writing purporting to be his or hers upon which the witness has acted or been 41 charged, and has thus acquired knowledge of the handwriting of such person. Evidence respecting the handwriting may also be given by a comparison, made by the witness or the court, with writings admitted or treated as genuine by the party against whom the evidence is offered, or proved to be genuine to the satisfaction of the judge. Sec. 23. Public documents as evidence. – Documents consisting of entries in public records made in the performance of a duty by a public officer are prima facie evidence of the facts therein stated. All other public documents are evidence, even against a third person, of the fact which gave rise to their execution and of the date of the latter. Sec. 24. Proof of official record. – The record of public documents referred to in paragraph (a) of Sec. 19, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by his or her deputy, and accompanied, if the record is not kept in the Philippines, with a certificate that such officer has the custody. If the office in which the record is kept is in a foreign country, which is a contracting party to a treaty or convention to which the Philippines is also a party, or considered a public document under such treaty or convention pursuant to paragraph (c) of Sec. 19 hereof, the certificate or its equivalent shall be in the form prescribed by such treaty or convention subject to reciprocity granted to public documents originating from the Philippines. For documents originating from a foreign country which is not a contracting party to a treaty or convention referred to in the next preceding sentence, the certificate may be made by a secretary of the embassy or legation, consul general, consul, vice-consul, or consular agent or by any officer in the foreign service of the Philippines stationed in the foreign country in which the record is kept, and authenticated by the seal of his or her office. A document that is accompanied by a certificate or its equivalent may be presented in evidence without further proof, the certificate or its equivalent being prima facie evidence of the due execution and genuineness of the document involved. The certificate shall not be required when a treaty or convention between a foreign country and the Philippines has abolished the requirement, or has exempted the document itself from this formality. 42 Sec. 25. What attestation of copy must state. – Whenever a copy of a document or record is attested for the purpose of evidence, the attestation must state, in substance, that the copy is a correct copy of the original, or a specific part thereof, as the case may be. The attestation must be under the official seal of the attesting officer, if there be any, or if he or she be the clerk of a court having a seal, under the seal of such court. Sec. 26. Irremovability of a public record. – Any public record, an official copy of which is admissible in evidence, must not be removed from the office in which it is kept, except upon order of a court where the inspection of the record is essential to the just determination of a pending case. Sec. 27. Public record of a private document. – An authorized public record of a private document may be proved by the original record, or by a copy thereof, attested by the legal custodian of the record, or by a copy thereof, attested by the legal custodian of the record, with an appropriate certificate that such officer has the custody. Sec. 28. Proof of lack of record. – A written statement signed by an officer having the custody of an official record or by his or her deputy that, after diligent search, no record or entry of a specified tenor is found to exist in the records of his or her office, accompanied by a certificate as above provided, is admissible as evidence that the record of his or her office contain no such record or entry. Sec. 29. How judicial record impeached. – Any judicial record may be impeached by evidence of: (a)want of jurisdiction in the court or judicial officer; (b)collusion between the parties; or (c) fraud in the party offering the record, in respect to the proceedings. Sec. 30. Proof of notarial documents. – Every instrument duly acknowledged or proved and certified as provided by law, may be presented in evidence without further proof, the certificate of acknowledgment being prima facie evidence of the execution of the instrument or document involved. Sec. 31. Alteration in document, how to explain. – The party producing a document as genuine which has been altered and appears to have been altered after its execution, in a part material to the question in dispute, must account for the alteration. He or she may show that the alteration was made by another, without his or her concurrence, or was made with the consent of the parties affected by it, or was otherwise properly or innocently made, or that the alteration did not change the meaning or language of the 43 instrument. If he or she fails to do that, the document shall not be admissible in evidence. Sec. 32. Seal. – There shall be no difference between sealed and unsealed private documents insofar as their admissibility as evidence is concerned. Sec. 33. Documentary evidence in an unofficial language. – Documents written in an unofficial language shall not be admitted as evidence, unless accompanied with a translation into English or Filipino. To avoid interruption of proceedings, parties or their attorneys are directed to have such translation prepared before trial. C. OFFER AND OBJECTION Sec. 34. Offer of evidence. – The court shall consider no evidence which has not been formally offered. The purpose for which the evidence is offered must be specified. A party makes a formal offer of evidence by stating its substance or nature and the purpose or purposes for which the evidence is offered. Sec. 35. When to make offer. – All evidence must be offered orally. The offer of a testimony of a witness in evidence must be made at the time the witness is called to testify. The offer of documentary and object evidence shall be made after the presentation of a party’s testimonial evidence. Sec. 36. Objection. – Objection to offer of evidence must be made orally immediately after the offer is made. Objection to the testimony of a witness for lack of formal offer must be made as soon as the witness begins to testify. Objection to a question propounded in the course of the oral examination of a witness must be made as soon as the grounds therefor become reasonably apparent. The grounds for the objection must be specified. Sec. 37. When repetition of objection unnecessary. – When it becomes reasonably apparent in the course of the examination of a witness that the question being propounded are of the same class as those to which objection has been made, whether such objection was sustained or overruled, it shall not 44 be necessary to repeat the objection, it being sufficient for the adverse party to record his or her continuing objection to such class of questions. Sec. 38. Ruling. – The ruling of the court must be given immediately after the objection is made, unless the court desires to take a reasonable time to inform itself on the question presented; but the ruling shall always be made during the trial and at such time as will give the party against whom it is made an opportunity to meet the situation presented by the ruling. The reason for sustaining or overruling an objection