EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo
June 21, 2018 (Alexander Abonado)
RULE 128
GENERAL PROVISIONS
Rule 128 Section 1 of the Rules of Court defines what
evidence is. It states evidence is the means sanctioned by
these rules of ascertaining in a judicial proceeding the truth
respecting a matter of fact.
Section 1. Evidence defined. Evidence is the means
sanctioned by these rules of ascertaining in a judicial
proceeding the truth respecting a matter of fact.
When the law defines a particular term, it simply means that
it transforms it into a technical term that is susceptible of no
other definition than that which the law provides.
So if you are asked in the Bar: “define evidence.”
You are not allowed to use your own words. You are not
allowed to substitute a statutory definition with a mere
doctrinal definition that you might have read somewhere.
So that is the first thing you have to remember about rule
128 section 1.
So for purposes of greater or easier understanding, himay-
himayon nato ang provision.
Evidence is the means – when you say means it is a
methodology. It is the manner of doing something. It is a
mechanism.
When you say means, it means as well that there is an end.
There is an end to be achieved by the use of evidence.
Evidence is the means sanctioned – meaning allowed,
permitted, prescribed - by the rules – and what rules are we
talking about? – The rules of court.
But when we say sanctioned by the rules, it does not
necessarily mean that the rules of court, specifically rules
128 – 133 are the sole repositories of the rules of evidence
because scattered in the law are evidentiary rules and
principles. Dili lang tanan evidentiary rules makita nimo sa
rules of evidence.
Unsa may example, let’s go back to 1st year – obligations
and contracts, article 1403, no. 2 of the civil code is the
statute of frauds. Which tells you that a contract has to be in
a certain form in order for it to be enforceable. To be able to
prove it in court. But it is not a limitation to the validity of
the contracts between the contracting parties for the simple
reason that contracts generally are perfected by mere
consent.
Consent is manifested by the making of the offer and the
acceptance upon the thing and the cause which are
constituted between the parties.
So when the statute of frauds tells you that a contract has to
be in writing in order for it to be enforceable, it does not
affect validity. It simply affects its provability – your ability
to sue upon such a contract in court in case there is breach.
Political law – consti – bill of rights. Fruit of the poisonous
tree doctrine. Is it not a fact that under article 3, you are
given 2 rights that are very important; for example, like
right of the people against unreasonable searches and
seizures. What follows that would be the right to privacy of
communication and correspondence.
Now what would be the effect if evidence, proof is obtained
in violation of such rights provided under the bill of rights?
They are inadmissible for any purpose in any proceeding.
And when you talk about inadmissibility, you are actually
talking about evidence. What are you allowed and what are
you not allowed to present to bring to court.
Unsay pwede nimo i-prove? Unsay pud ang dili nimo i-
prove.
Criminal law. You recall any evidentiary rule that requires
specific proof?
Treason. How do you prove treason? Or at least, how many
witnesses are needed in order to prove that a person
committed treason? – 2 witness rule in treason.
And I’m willing to bet you, with the exception of Christian
ethics, practically every subject that you encountered have
evidentiary principles in them. So evidence pervades the
entire law. You can’t win a case unless you know how to
prove the case in the first place.
Now, Evidence is the means sanctioned by these rules of
ascertaining – it’s a means of ascertainment therefore.
Para mabal-an ang mga pamaagi sa pagkahibalo. Means of
ascertainment.
To ascertain in a judicial proceedings – there are a lot of
proceedings diba?
Naay judicial, naay mga quasi-judicial. There are legislative
proceedings as well. So it hints to you that the rules of
evidence are primarily applicable in judicial proceedings
only. In courts.
And how do we define a court?
A court is that entity that is invested with a portion of the
judicial power.
Sir, what about a labor arbiter? Isn’t that a fact that you can
file a case against the Labor arbiter? Isn’t that a fact that you
can file a complaint before a barangay, lupong tagapamaya?
HLURB?
Do we not apply the rules of evidence before these so-called
tribunals which are non-judicial in character?
We apply but only in a suppletory character.
So for judicial proceedings, the rules of evidence are
uniform and the same. But with respect to non-judicial
proceedings, the technical rules of evidence are not strictly
applied except in a suppletory character.
Are there certain types of cases in Phil. law that you don’t
also follow the rule on evidence even if the cases are filed
before the regular courts? Naa ba certain cases filed before
the court and yet you don’t normally prove it in the same
way that you prove an ordinary court case.
Civil case, for example, what do you prove? – the elements
of your cause of action. Right, obligation, violation, damage.
In a criminal case – you need to prove the elements of an
offense, if you are the prosecution.
How do they prove their cases? – follow the rules on
evidence, specifically rule 130 and rule 132 (evidence in
trial) so that’s how you apply them.
Pero naay exceptions. Naay certain cases where the manner
of proof is different. The manner of proof is unlike the usual
manner of proof that you usually employ in ordinary court
cases.
For example, small claims cases.
1
 EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo
Kinanglan pa ba in small claims cases that you go to court,
present a witness, there has to be lawyer?
In small claims cases, walay ing-ana. You don’t present
evidence the same way that you present evidence in
ordinary cases.
What else? Rule in the presentation of child witnesses. The
child witness rule. Where a lot of things that happen in the
examination, the presentation of ordinary witnesses are not
applicable. We will go to that when we reach rule 130
witnesses and their qualifications; of testimonial witness.
So Evidence is the means sanctioned by these rules of
ascertaining in a judicial proceeding the truth respecting a
matter of fact
Adto sa ta sa fact.
What are the types of fact under the law?
In the law on pleadings, what are the types of fact? You
have:
1. Factum probandum (ultimate fact) – they are in the
form of legal conclusions or factual conlcusions.
And because you haven’t proven them yet, they
are necessarily hypothetical in nature.
So there is a hypothesis that you are trying to advance
before the court, which can only be proven by what we call
by factum probans or evidentiary facts
2. Factum probans (evidentiary facts) – will be the
facts that are referred to under rule 128 section 1.
Remember the rule in civpro that when you make a
pleading you have to intone it - statements of mere
evidentiary facts – dapat katong ultimate facts ka.
Now one word in rule 128 section 1, that defines evidence
puts me off a little bit. It’s misplaced. What word is that? –
Truth.
Truth in a legal document, do support itself.
Kanus-a pa nako na last nakita kanang word nga truth in a
legal document? – The 1987 constitution, preamble. Which
we know is not a source of any right.
Just imagine truth being uttered in the same breath as love.
In a legal document. These ideals appear in the preamble
because these are ideals to strive for.
And so it makes me think when the framers of the rules of
court, decided to define evidence in that manner – to
ascertain the truth respecting a matter of fact – they are
talking about the truth in its idealized form.
Kay ngano?
That the rules of evidence is not really a means to ascertain
the truth but rather mastering the rules of evidence will
enable you to disregard the truth.
(Example ni Sir; Meet Me in St. Gallen; mga wala kita, one-
half sa kinabuhi mawala)
Guy caught possessing shabu after being frisked by police
officers. Making him possessor of illegal substance, violative
of the comprehensive drugs act.
What’s the truth in that situation? That guy caught
possessing shabu.
But he takes the best lawyer available, mastered the rules of
evidence, etc. and sets the guy free. Because that is the
product of an illegal search. Therefore fruit of the poisonous
tree.
So what’s the truth there?
Pusher. User. Possessor. – that’s the truth. But because of
your mastery of the rules of evidence, the truth is
disregarded.
That’s effect. It enables the legal practitioners and parties to
a case to disregard the truth whether you like it or not that’s
the profession you are seeking entry into.
“Where Truth, though might be sacred but you have to
surround it with a bodyguard of lies.” - Judge Emmanuel
Carpio.
Vincit Omnia veritas. – Truth conquers all but with
knowledge of all, the truth can be conquered.
June 28, 2018 (Angel Deiparine)
(diri gyud nag start ang June 28 na recording. I think naputol ang
start, but part gihapon ni sa Section 1.)
Section 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 parties are actually encouraged to undergo stipulations,
admissions of facts. In fact, during pretrial conference in a
criminal case, the accused can make a confession. Maybe,
pursuant to what we have known to be PLEA
BARGAINING AGREEMENTS.
O sige, akong angkunon ang akoang guilt but to a lesser
offense, provided, you will be lenient in giving me a
sentence. I plead guilty to a lesser offense, and maybe, for
one, that falls within the ambit of probation. So,
probationable siya.
But what happens if the pretrial agreement that contains the
confession of the accused is unsigned? What will be the
effect of that?
Of course, unless reduced to writing and signed by him and
his counsel, such admission or confession that was made or
entered during the pretrial conference cannot be used in
evidence against the accused. We’ll go to that when we go to
Admissions later on.
Even in a civil law, you have a lot of evidentiary principles.
 Statute of Fraud which limits the ‘provability’ of
certain agreements. They must be in writing under
Article 1403(2) of the Civil Code. It’s not a requirement
for the validity of contracts but rather it limits your
ability to bring an action in court in order to enforce
your rights pursuant to a breach of contract. Kay
nganong wa nimo gisulat? How does one prove it?
How else does you go tell the breaching party to give
you what he contracted to give under the contract?
 Damages
There’s also a requirement of proof to certain
classes for damages. Sa mga nastudyante na nako
under Torts and Damages, you know that with
respect to actual damages there’s a requirement
that it must be proven or substantiated by proof of
pecuniary loss.
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 EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo
Nabanggan imong sakyanan, imong gipaayo.
What’s the proof of pecuniary loss there? THE
RECEIPT. No receipt, no payment of actual
damages.
But to other forms of damages: moral, exemplary,
nominal, temperate, liquidated… No proof of
pecuniary loss is actually required.
That is evidentiary in nature because it tells you
what the manner of proof is in order for you to be
entitled to these certain forms of damages.
 Res ipsa loquitor
That is evidentiary inasmuch as it creates a
presumption. In English, ‘the thing speaks for
itself.’
It is illustrated in one of my favorite case in all the
law. Sa mga wala pa nako na estudyante, wala mo
kabalo ani but my favorite case in all of the law is
Republic vs Luzon Steevedoring, it’s so simple, it
explains res ipsa loquitor immediately.
Ani, BRIDGE. BARGE. BANGGA. Ka kinsang sala?
Who’s fault was it? The bridge? Impossible nga sa
bridge, because it is not a moving object. Dili mana
ga lihok. Stationary. So, res ipsa loquitor. Who is
negligent? The barge. It cannot be the bridge.
That’s res ipsa loquitor. It now raises a
presumption that the defendant was negligent
because the facts are such that it cannot be caused
by anyone else.
Example:
You go to the hospital. You wanted to get an
appendectomy. But when you went home, you
went home with a vasectomy. Res ipsa loquitor. The
thing speaks for itself. Who’s negligent there?
Alangan naman ikaw, you have no control over the
instrumentality that caused you damage.
 Presumption of Negligence in vehicular accidents
Do you know that when you are found to be
violating a traffic ordinance at the time of an
accident, you are automatically presumed
negligent.
Like, nakabangga ka, you weren’t wearing a
seatbelt. Or, nakabangga ka, wala kay lisensya.
There’s a presumption of negligence there even if
you were quite careful.
And when there’s a presumption of law that
applies, it actually shifts the burden of evidence to
the other party to disprove. Because you are now
presumed to be negligent, the plaintiff does not
even have to prove that you were negligent. That’s
the effect. Therefore, that’s evidentiary.
Nag motor ka, wala kay helmet. Negligence. You
are violating a traffic violation at the time of
collision.
Nag helmet ka, wala kay motor. Aw, buang ka.
(HAHAHAHAHA FUNNY SI SIR!)
 Criminal Law- Presumptions Relating to
Discernment, An Exemption from Criminal
Liability
What’s the difference between a perpetrator below
9 years of age at the time of the commission of the
offense and a perpetrator between the ages of 9-15
to be exempt from criminal liability?
We know for a fact that if the perpetrator is below
9 years of age, he is exempt from any criminal
liability. But if the perpetrator is between 9-15
years of age, he will only be exempt from criminal
liability if he acted without discernment.
What about a perpetrator below 9 years of age who
acted with discernment? Answer: It doesn’t matter
if that kid acted with discernment, because the law
conclusively presumes him to be incapable of
discernment by reason of immaturity. It doesn’t
matter. You can’t even prove na he acted with
discernment.
In corollary, the case of Jarco Marketing vs Court
of Appeals, the Supreme Court said that a child
below 9 years of age is incapable of contributory
negligence. Those are conclusively presumed facts.
In the same vein, a child below 9 years of age is
incapable of discernment, the same is incapable of
contributory negligence. Tell that to my son. *nag
story siya about sa iyang son nga naghatag sa iyang
classmate ug 50 pesos because gi dukol daw niya. Lack
of discernment? Bribery.
 Two-witness Rule in Treason
It’s the law that mandates the quantity of evidence
you need to present. Two witnesses attesting to the
same overt act that constitutes treason.
Section 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.
Going back to Civil Procedure, Section 4, Rule 1 of the Rules
of Court, the Rules does not apply to election cases, land
registration, cadastral, naturalization and insolvency
proceedings, and other cases not herein provided for, except
by analogy or in a suppletory character and whenever
practicable and convenient.
Remember, when you talk about practicability, it’s not the
same as practicality. Lahi na sila na terms.
When you say ‘practicable’, mabuhat ba siya? When you say
‘practical’, ang pangutana dra, sayon ra ba siya? There’s a
big difference between the two. Do not be misled or
confused.
Now, just to correlate with the phrase ‘in a judicial
proceeding’, this means we use the law of Evidence in
judicial proceedings as a general rule. But when a
proceeding is administrative or quasi-judicial in nature, the
Rules on Evidence are not strictly applied.
Now we need to recall what happens in labor cases, if an
employee files a complaint for illegal termination against
the employer, and you’re the lawyer. Do you expect to bring
a witness in? Do you cross examine witnesses before the
labor arbiter in a case for illegal dismissal? Answer: NO. The
Rules of Evidence are not strictly applied in labor tribunals.
In the case of Cathay Pacific vs NLRC, the Rules of
Evidence prevailing in courts of law or equity are not
always controlling. It’s not even necessary that affidavits
and other documents presented conform to the technical
rules of evidence, as the court maintains a liberal stance
regarding procedural deficiencies in labor cases.
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 EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo
If that’s the case, unsa diay na diha? Atik atik na
proceedings? In Hornales(?) vs NLRC, the SC said labor
proceedings are non-litigious in character. The technicalities
of law and procedure, and the rules obtaining in the courts
of law shall not strictly apply thereto, and the hearing
officer may avail himself of all reasonable means to
ascertain the facts of the case. It may be non-litigous, but
there is still that requirement of ascertaining the facts. There
is still that requirement of determining which party upon
the merits is entitled in the case.
According to the SC, as well, in the case of Kanlaon vs
NLRC, kana daw requirement of due process when it comes
to labor tribunals, for example, is satisfied, at the very least,
when the parties are given an opportunity to submit
position papers.
Criminal vs. Civil Cases
In judicial proceedings, remember, it could either be
criminal or civil in nature.
So how do you distinguish between evidence in civil cases
vs. evidence in criminal cases.
1. In civil cases, the party having the burden of proof
must prove his claim by a PREPONDERANCE OF
EVIDENCE, while the quantum of proof required
in criminal cases would be PROOF BEYOND
REASONABLE DOUBT. What’s our basis here? It’s
the Constitution itself that tells you that’s the
quantum of proof required.
2. In civil cases, an offer of compromise is not an
admission of any liability. It is not admissible in
evidence against the offerer. In criminal cases, an
offer of compromise by the accused may be
received in evidence as an implied admission.
Let me give you an example of an implied admission, A
raped B. B sued A for rape. A, who raped B, offered
marriage. That is considered an implied admission of guilt
because that is analogous to an attempt to compromise.
‘Ayaw nlng ko file-i ug kaso, pakaslan nlng tika’- that’s a
compromise.
3. What else? In civil cases, the concept of
presumption of innocence does not apply. But
constitutionally speaking, the accused (in criminal
cases) enjoys the presumption of innocence under
the 1987 Constitution.
4. We will learn later on that in Rule 131 that in civil
cases, the doctrine of equipoise or equiponderance
of evidence applies, but in criminal cases,
technically speaking, there is no such thing as
equipoise.
Imagine that in a litigation, there is always that imaginary
scale. An imaginary scale of justice. Kana bitaw si Lady
Justice nag gunit ug timbangan. On one side, you have the
receptacle for the plaintiff or prosecution. On the other side,
you have the receptacle for the defendant or the accused.
Now, in the course of trial, mauna ug present ang evidence
sa plaintiff, diba? Plaintiff man gyud mauna. So every piece
of evidence that is credible and admissible, ginabutang na sa
iyang receptacle. So, sa sugod bug-at ang sa plaintiff. When
the defendant’s turn comes, he also puts in his receptacle his
own evidence that is credible and admissible. Finally, the
court can now determine kung kinsa mas bug-at. Kung
kinsa mas bug-at, mao nay mudaog. But what happens if
they are equal. Even gyud siya. Who should win? Answer:
the defendant should win. Why? If the evidence of the two
parties are equally balance such as there is equipoise
already, it means that the party who bears the burden of
proof initially has failed to discharge that burden. Therefore,
the defendant wins. That is the doctrine of equipoise.
But in criminal cases, there is no equipoise. Ngano? Again,
we go back to that imaginary scale of justice. On one hand
you have the prosecution, on the other hand, you have the
accused. Wala pa nag sugod ang kaso, ing ana na ang scale
(refers to imbalance scale, leaning towards the accused). Why?
Because he is entitled to the presumption of innocence that
can only be defeated by prosecution by proof beyond
reasonable doubt. So, in case of doubt, who wins the case?
The accused, regardless of whether he is the worst rapist or
the most damak na drug addict in the whole world, because
of that presumption of innocence.
5. Finally, in civil cases, there is no such thing as a
confession, whereas in criminal cases, the concept
of confession is perfectly applicable.
Take note that the Rules of Evidence is procedural in
character which means that they may be given retroactive
effect, diba? Laws shall have no retroactive effect, except
those exceptions provided to you by Maam Galas when you
are in first year, including those rules that are procedural in
character.
If you recall the case of Velayo vs Shell, SC ruled that the
law on human relations, Articles 19 to 36 of the Civil Code
beginning in abuse of rights until prejudicial questions--- it
can be given retroactive effect precisely because it does not
affect vested rights.
Naa sad ba vested rights in the Rules of Evidence? The
answer is NO. Any evidence inadmissible according to the
laws in force, at the time the action accrued, but admissible
according to the laws in force at the time of the trial, is
receivable.
Let us suppose, at the time of the filing of the action, there’s
a law saying that it is inadmissible to present in court a cctv
footage, why, because it violates the right to privacy kanang
mga cctv. So, gi file-an gihapon ug kaso tong accused. But
based on the law, at the time when the action accrued, that’s
supposed to be inadmissible in evidence. But during the
time the trial of the case was underway, the law was
repealed. Can the accused complain that before, the time of
the filing of the action, inadmissible na. Unya karon, ma
present na? He can complain, diba?
Proof vs. Evidence
Now, what’s the difference between proof and evidence?
There are subtle differences, except that these terms are
often used interchangeably.
Proof is actually the effect when the requisite quantum of
evidence of a particular fact has been duly admitted and
given weight. Evidence, on the other hand, is the mode and
manner of proving such facts in judicial proceedings.
Proof, therefore, is the probative effect of evidence.
Evidence is supposed to be considered as the means.
Let’s revisit Section 1, again.
Section 1. Evidence defined. — Evidence is the
means, sanctioned by these rules, of ascertaining in
a judicial proceeding the truth respecting a matter
of fact.
Take note that under the law on pleadings, there are two
types of FACT:
1. Factum Probandum;
2. Factum Probans.
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 EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo

Factum Probandum or Ultimate Facts are principal, Take note that every evidentiary question involves the
determinate and constituted facts upon the existence of relationship between the factum probandum and the factum
which the plaintiff’s cause of action rests. probans.

They do not refer to the details of probative matters or
particulars of evidence by which these material elements are
to be established. Under the law on pleadings, remember,
only ultimate facts are to be required to be stated. They
consists in propositions still to be established. Therefore,
ultimate facts are necessarily hypothetical.
Factum Probans or Evidentiary Facts/ Intermediate Facts
are facts which are necessary for the determination of
ultimate facts.
They are premises upon which conclusion of ultimate facts
are based. They are brought forward as a reality to convince
the tribunal that the factum probandum is also real.
As law students, how do you answer exams? You use
SYLLOGISMS, by which, is supposed to bring forth a
proposition; then state your minor premise; major premise;
and then, conclusion.
For example: Is the contention of plaintiff tenable?
You answer either yes or no. The contention of
plaintiff is tenable or untenable. That is your
conclusion.
Exercise: Give me a factum probandum.
Student: A owes B 10,000 pesos to be collected on a certain
date.
Sir: What date?
Student: Today. June 28.
Sir: If I were to make a factum probandum based on what
you said, I would say, “A is obliged to pay B the amount of
Php10,000 which is due and demandable on a certain date.”
Kung dili man gud due and demandable, e di premature
imong demand.
So, how do you prove that? That A is obliged to pay B
Php10,000. What is your factum probans?
Student2: A promissory note, sir.
Sir: Would there be any difference in your ability to prove
factum probandum had there been no promissory note or
any other contract signed by A and B.
Answer: Oral testimony.

What is your premise? You have to state your

minor premise. The applicable law is your minor
premise, right? Then, your major premise is how 6/28/2018 (Anton Maligad)
the law is applicable based on the facts. Finally,
Evidence in Civil Cases vs. Evidence in Criminal Cases
you have the conclusion. So you have these two
premises, then you have the conclusion. Civil Cases Criminal Cases
REQUIRED EVIDENCE
Asa didto ang factum probandum? Ug asa didto
Preponderance of Evidence Proof beyond reasonable
ang factum probans?
is required doubt is required
Factum Probandum, katong giingon nimo na dili OFFER OF COMPROMISE
tenable. That’s a conclusion; that’s a proposition. An offer of compromise is In criminal cases an offer of
How do you prove a proposition? By placing not an admission of any compromise by the accused
premises. What’s your major premise? How the liability. may be received in
law is applied to the facts. Katong facts nato, mao evidence as an implied
na imong evidentiary. admission.

They are facts which are necessary for the determination of Example: IMPLIED
the ultimate facts. They are premises upon which ADMISSION OF GUILT
conclusions of ultimate facts are based.
A raped B. B offered
They are brought forward as a reality to convince the marriage. Don’t file a case
tribunal the factum probandum is also real. against me because I will
Take note that under Rule 8, Section 1, every pleading shall marry you.
contain in a methodical and logical form, a plain, concise
and direct statement of the ultimate facts on which the party That is considered as an
pleading relies for his claim or defense, as the case may be, implied admission of guilt,
omitting the statement of mere evidentiary facts. because that is analogous to
an attempt to compromise.
Factum Probandum Factum Probans
Ultimate facts Evidentiary or intermediate PRESUMPTION OF INNOCENCE
facts In civil cases, the concept of Concept of presumption of
Proposition still to be Material evidence in the presumption of innocence innocence applies.
established proposition making factum doesn’t apply.
probandum merely Constitutionally speaking
hypothetical. It is already in the accused enjoys the
existence. presumption of innocence
It is the end to be achieved It is the means to achieve under the 1987
such end Constitution.
Mao lang required under You have to omit them DOCTRINE OF EQUIPOISE
the law in pleadings when you file your Doctrine of Equipoise Doctrine of Equipoise
pleadings applies doesn’t exist in criminal
law.
The "equipoise doctrine" is
the rule which states that

5
 EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo

Civil Cases Criminal Cases Factum Probandum Factcum Probans

when the evidence of the (Ultimate Facts)— (Evidentiary Facts)—
prosecution and the defense
are so evenly balanced the to be established. hypothetical.
appreciation of such
evidence calls for tilting of Proposition, which is still to They are brought forward as
the scales in favor of the be established. a reality in order to convince
accused the tribunal that a factum
Under the law on pleadings, probandum is ___?
CONCEPT OF CONFESSION only ultimate facts are to be
There is no concept of There is a concept of stated omitting the
confession. confession evidentiary facts.

They consist in oppositions

Take note that the Rules on Evidence are procedural in still to be established and are
character, which means that they may be given retroactive therefore hypothetical.
effect.
“It is the end of which”
GR: The law shall not have a retroactive effect.

XPN: Exceptions given by the Civil Code and includes

procedural laws. “It is the means of which”

In corollary to that, are there vested rights in Rules of

Evidence? NO Lecture on how to answer questions in law school: Use of
syllogisms.
Supreme Court ruled that as to the law on Human Relations
(Article 19-36 of the Civil Code) couldn’t be given 1.) Tenable/Untenable—conclusion (ultimate
retroactive effect because there are vested rights. facts)
2.) Minor premise—the applicable law
But as to Rules of Evidence there are not vested rights. Any (evidentiary facts)
evidence inadmissible according to the laws enforced at the time 3.) Major premise—how the law is applicable
that the action accrued, but admissible according to the laws based on the facts (evidentiary facts)
enforced at the time of the trial is receivable. 4.) Conclusion to your answer
Example: Let us suppose that at the time of the filing of the
Every evidentiary question contains the relationship
action there is a law that states that it is inadmissible to
between the ultimate facts and the evidentiary facts.
present in court CCTV footage. Because according to the
law the CCTV footage violates the rights of privacy. Exercise:
So, a case was still filed against the accused. Give me a factum probandum?
But during the time of the trial of the case the law was Student: A is obliged to pay B the amount of Php 10,000 to
repealed. Can the accused complain? be collected on June 29.
NO, he cannot complain. The evidence shall be presented in Atty E: How do you prove that? What is your factum
court. probans? What is your factum probandum?
“Proof and Evidence are not the same, though they are Student: An example of a factum probandum for such kind
usually used interchangeably” of situation would be a promissory note.
Proof—is the effect when the requisite quantum of evidence Atty E: What if there is no Promissory note, how do you
of a particular fact has been duly admitted; Proof is the prove the existence of any contract signed between A and B?
probative effect of evidence. What would be your factum probans to prove that A is
obliged to B?
Evidence—is the mode or manner of presenting facts in a
judicial proceeding. Evidence is the means. Student: Oral Testimony (Testimonial Evidence)
Rule 128; Section 1: Evidence is the means sanctioned by Atty. E: Precisely. There has to be some connection or some
these rules of ascertaining in a judicial proceeding the truth relation between your factum probans with the proposition
respecting a matter of fact. that you want to prove which is your factum probandum.
Two Types of Fact under the Law on Pleadings: So for example, your factum probandum is: A killed B. Your
factum probans is a picture taken during the wedding of B
Factum Probandum Factcum Probans
and C. What is the connection?
(Ultimate Facts)— (Evidentiary Facts)—
In other words, the relationship between factum
Principal, determinate, and Facts, which are necessary probandum and factum probans is what you call relevancy.
constitutive facts upon the for the determination of
existence of which the ultimate facts. The relationship must be in some way that would describe
plaintiff’s cause of action the factum probans as advancing the proposition that is
rests. They are premises by which factum probandum.
the conclusions of ultimate
They do not refer to the Question of Fact vs. Question of Law:
facts are based.
details of probative matters Callo vs. Chief of National Police (Nov 21, 2002) [look for
or particulars of evidence by Material evidencing the case]
which these are evidence are proposition which is

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Atty. Jess Zachael Espejo

judicial evaluation in the guidelines provided by the Rules

There is a question of fact when doubt or difference arises
as to truth of facts
There is a question of law as to what is the law is as to
certain facts
Atty. E: Is it illegal to smoke by the road outside the school?
It is. That is a question of law, because the issue can be
answered solely by what the law says.
But if the question is:
of Court.
2 Basic Requisites of Admissibility (Rule 128; Section 3):
a.) Relevancy—is such a relation to the fact in issue as
to induce a belief of its existence or non-existence
of a fact.
b.) Competency—and evidence is competent if the
law or these rules of court do not exclude such
evidence.

Is A liable for violating the law for smoking in public Section 3 of Rule 128 is directly derived from the Actions of
places? Admissibility according to Wigmore. The real Wigmore!

That is a questions of fact, because you need to prove it with

certain facts.
June 28, 2018 – April Sillada
Example:
I share the opinion of my former mentor before, my teacher
Assume that there is a law that would mandate that people in International Law when I was taking up my masters – the
below 5 feet 4 inches tall should be given free Php present presidential spokesman, Harry Roque.
5,000,000.00 each.
Part of our discussion was this, the Human Security Act. So
So, I’ll be given Php 5,000,000.00 free because I am below 5 his bone of contention is this word: “suspected” of the crime
feet 4 inches. of terrorism. So the moment that you are suspected, all that
the police operatives have to do is to ask for a written order
But, in determining whether or not the person is qualified to from the Court of Appeals.
receive the Php5m what is it?
So what is the quantum that is required? No need for
It is a question of fact. probable cause. Diba for the issuance of a search warrant or
warrant of arrest, probable cause. Here, a mere suspicion.
But to determine that the standard of who is qualified to
And so according to him, it dilutes the right to privacy. And
receive the Php5m.
I agree. It dilutes RA 4200 – the Anti-Wiretapping Act.

And in addition to that, under RA9372, the Human Security

That is a question of law, because it wasn’t applied to a Act, even the law on the secrecy of bank deposits is affected.
factual situation—it was just the law. Because if you are a suspected terrorist, the law enforcement
agencies can inquire into your bank deposits on the guise
Difference of Question of Fact vs. Question of Law: that you are suspected of committing terrorism.

Question of Fact
Apply the Law on Evidence
Appeal is made to the Court
of appeals for pure
questions of fact or mixed
questions of fact
US Law: It is determined by
the jury
Question of Law And you know how the Human Security Act defines
Apply the law terrorism? It defines crimes that could be committed by a
Appeal is made directly to terrorist according to how these crimes are defined under
the Supreme Court the Revised Penal Code, with the added element that the
perpetration of these crimes is used in order to sow fear and
terror among the populace. Mao ra na siya ang nakabutang
US Law: It is determined by sa Human Security Act.
the judge
So to my mind, the Human Security Act is a little bit too
simplistic, and it allows our enforcement agencies a lot of
liberty to inquire into the private lives of ordinary Filipinos.

For all we know, I’m already a suspected terrorist. And they

Section 3. Admissibility of Evidence—Evidence is
admissible when it is relevant to the issue and is not
excluded by the law or these Rules.
When we talk about admissibility, the basic question to ask
is:
Will the Court accept it as a viable proof of a particular
topic?
Admissibility of evidence—answers the question where
certain pieces evidence is to be considered by the court.
Weight/Probative value of evidence—answers the question
on whether the admitted evidence proves an issue by the
quantum of evidence it is required.
Laymen’s term of probative value: Believability.
It is simple as that, thus particular evidence may be
admissible, but its evidentiary weight depends on the
will inquire into my bank account and see that I only have
Php7500. But my wife’s bank account is a different matter.
The joke I always make is that: You know what? Mag-asawa
gud. Unitas personae – one person under the law. Our estates
are combined, which means na kung unsay ako, iya. Kung
unsay iya, iya ra.
Anyway, there’s also this case of Navarro v. CA. If the
communication is not private, its tape recording is not
prohibited.
Also, take note of Article III, Section 12.
Section 12.
1. Any person under investigation for the
commission of an offense shall have the right to
be informed of his right to remain silent and to
have competent and independent counsel
preferably of his own choice. If the person cannot

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Atty. Jess Zachael Espejo
afford the services of counsel, he must be
provided with one. These rights cannot be waived
except in writing and in the presence of counsel.
2. No torture, force, violence, threat, intimidation, or
any other means which vitiate the free will shall
be used against him. Secret detention places,
solitary, incommunicado, or other similar forms of
detention are prohibited.
3. Any confession or admission obtained in violation
of this or Section 17 hereof shall be inadmissible in
evidence against him.
4. The law shall provide for penal and civil sanctions
for violations of this Section as well as
compensation to the rehabilitation of victims of
torture or similar practices, and their families.
What is this Section 17? That’s the right against self-
incrimination.
Section 17. No person shall be compelled to be a witness
against himself.
Take note also of RA 7438 – the rights of persons arrested,
detained, or under custodial investigation.
Section 2. Rights of Persons Arrested, Detained or Under
Custodial Investigation; Duties of Public Officers. –
(a) Any person arrested detained or under custodial
investigation shall at all times be assisted by counsel.
(d) Any extrajudicial confession made by a person arrested,
detained or under custodial investigation shall be in
writing and signed by such person in the presence of his
counsel or in the latter's absence, upon a valid waiver, and
in the presence of any of the parents, elder brothers and
sisters, his spouse, the municipal mayor, the municipal
judge, district school supervisor, or priest or minister of the
gospel as chosen by him; otherwise, such extrajudicial
confession shall be inadmissible as evidence in any
proceeding.
So fruit of the poisonous tree lang gihapon ang iyahang
take, in other words.
Section 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. (4a)
What is a relevant evidence?
 It is evidence which has a tendency in reason to
establish the probability or improbability of the fact
in issue.
 It is evidence tending to prove or disprove a
material fact.
 It is evidence having a tendency to make the
existence of any fact that is of consequence to the
determination of the action more or less probable
than it would be without the evidence.
Relevancy vs. materiality
Take note that relevancy is not the same as materiality.
Because material evidence is evidence which tends to
directly prove the fact in issue.
So for example, if you want to prove the existence of a loan,
what would directly prove it? The promissory note is
material. If you want to prove the cause of death, the death
certificate of the person is material. But again, it’s not the
same as relevancy.
To illustrate the difference between relevancy and
materiality, I will always go back to the example of Dean
Inigo because it’s the best example.
A was shot from a long distance right in between the eyes.
Like who can do that? It’s either a very lucky shot, or you
are a really skilled shooter. B was the main suspect and he
was prosecuted for the crime. During the presentation of
evidence, the fiscal presented testimony trying to prove that
B was a former Olympic gold medalist in long distance
shooting.
Q: Is the evidence material? Does it directly prove that B
shot A?
A: It does not tend to prove the fact in issue of whether or
not B killed the victim. Because the issue here is not about
the Olympic record of the accused.
Q: However, does such evidence have a tendency to prove
that B is the killer due to his ability as a really sharp
shooter?
A: Of course. Yes, the evidence may not be material but it is
still relevant. It has a tendency in reason to establish the
probability or improbability of the fact in issue.
Stated otherwise, would it be more likely that it is B who is
the shooter, given his Olympic record, than anybody else? If
the answer is yes, then that fact is relevant. It makes things
more likely rather than unlikely.
How do we distinguish between materiality and relevancy?
Material Relevant
evidence evidence
Evidence is offered to prove Evidence has the tendency
or disprove a fact in issue in reason to establish the
probability or improbability
of the fact in issue
Direct proof May either be direct or
circumstantial
Self-evident May require reasoning and
inference
Material evidence is always Relevant evidence is not
relevant always material.
Three Kinds of Admissibility
1. Multiple Admissibility
Evidence that is plainly relevant and competent for two or
more purposes will be received if it satisfies all
requirements prescribed by law in order that it may be
admissible for the purpose for which it is presented, even if
it does not satisfy the other requirements for admissibility
for other purposes.
2. Conditional Admissibility
Evidence appears to be immaterial but it is admitted by the
court subject to the condition that its connection with
another fact subsequent to be proved will be established.
Otherwise, such fact already received will be stricken off the
record at the initiative of the adverse party.
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3. Curative Admissibility
Evidence that is otherwise improper is admitted despite the
objection from the other party to contradict improper
evidence presented or introduced by the other party, to
cure, contradict, or neutralize such improper evidence.
Curative Admissibility
This curative admissibility, I was able to observe personally,
applied to a case that I handled before. The case that I
handled was covered by the Rules on Summary Procedure.
Remember that under the Rules on Summary Procedure,
kung wala sa affidavit, it will not be taken up. If it is
evidence that was not previously identified, or maybe
hinted at, in your affidavits, it cannot be presented.
But being the lawyer that I am, I tried to present
inadmissible evidence. It’s an unfair surprise against my
opponent. Unfair surprise for the simple reason that if I
present evidence that was not previously identified, he will
not have the opportunity to refute it.
And so my opponent objected. Grabe objection niya, halos
patyon ko niya sa objection. And then the court asked me to
comment on his objection. And then the same bullshit that I
always do to try to defend against an objection, I say “Your
Honor, this is newly discovered evidence. It is allowed,
Your Honor, because it is relevant to the fact in issue. It
directly proves that the accused is liable to my client. And
remember, Your Honor, that this is not supposedly a battle
of technicalities, but rather, cheche bureche whatever.”
True enough, the judge was impressed. Nadala sa akoang
bulatik. Pero naningkamot kog argue diba. And then he
allowed me to present supposedly inadmissible evidence.
He told the other party. “Don’t worry counsel because
under the principle of curative admissibility of evidence,
you are also allowed to present similarly inadmissible
evidence to counteract the evidence that I’m allowing right
now.”
My god, ka-bright sa judge. He knows about the curative
admissibility of evidence. Only to find out that the judge is a
book author in Criminal Procedure and Evidence – si Judge
Alejandro Ramon C. Alano, from the Municipal Trial Court
of General Santos City.
Multiple Admissibility
There’s a lot of examples on multiple admissibility.
 Later on, we will learn in Rule 130, Section 37
about the exception to the hearsay rule called a
dying declaration. An example of how multiple
admissibility can apply there is that even if a
statement does not qualify as a dying declaration,
it may be admitted as part of the res gestae. Dili
lang nako na i-explain karon because it will be
jumping the gun, so to speak.
 Tangible evidence may be received as either
documentary or object evidence, or both. Writings
may be inadmissible under the Best Evidence Rule
but they will still be admitted as object evidence to
prove the existence or condition of the object.
(Sir held up a class card.) What’s this? It’s a class card. What
is the color? Green. Can you tell me the shape? Rectangle.
Does it matter to me, when I asked you those questions,
what’s written here? That it purports to belong to a certain
Lim, Jennifer Marie? Does it matter to me? No, because my
questions were about the color and the shape. And
therefore, I’m looking at this piece of paper as an object, not
as a document.
But what if what matters to me is what is written in this
piece of paper – unsay nakasulat. And therefore, it becomes
a document.
Now does it mean that in a court of law, I can only present
this as a document? And I cannot present this anymore as
an object? Because something just happens to be written in
this piece of paper? That, my friends, is the concept of
multiple admissibility. It can be presented in court for
different purposes and as different types of evidence.
Bar Exam 2005 Question:
May a private document be offered and admitted in
evidence, both as documentary evidence and as object
evidence?
Answer:
(That is precisely what the law on multiple admissibility of
evidence is all about.) A private document may be offered
and admitted in evidence, both as documentary evidence
and as object evidence. The document can also be
considered as an object for purposes of the case. Objects as
evidence are those addressed to the senses of the court.
Documentary evidence consists of writings or any material
containing letters, words, numbers, figures, symbols, or
other modes of written expression offered as proof of their
contents.
Hence, a private document may be offered as object
evidence in order to establish certain physical evidence or
characteristics that are visible on the paper and, writings
that comprise the object.
Bar Exam 1994 Question:
At the trial of Ace for violation of the Dangerous Drugs Act,
the prosecution offers in evidence a photocopy of the
marked 100-peso bills used in the buy bust operation. Ace
objects to the introduction of the photocopy on the ground
that the Best Evidence Rule prohibits the introduction of
secondary evidence in lieu of the original.
A. Is the photocopy real or object evidence, or is it
documentary evidence?
B. Is the photocopy admissible in evidence?
Now, a little bit about the Best Evidence Rule. If you are
going to present documentary evidence, the general rule is
you have to present the original. You cannot just present a
mere photocopy. So if you’re presenting a document, the
Best Evidence Rule will be applicable. But if you’re
presenting something else, it does not apply.
So if your answer in Letter A is that it is documentary
evidence, in all probability, your answer in Letter B is that it
is not admissible because it violates the Best Evidence Rule.
But if your answer in Letter A is that it is a mere object,
therefore it will be admissible in Letter B because there’s no
such thing as Best Evidence Rule for objects.
Answer:
A. It is real or object evidence because it is not offered
as proof of its contents but as tangible proof, object
of the illegal sale of dangerous drugs.
B. Yes, the photocopy is admissible in evidence
because the Best Evidence Rule does not apply to
object evidence.
Theories of Curative Admissibility
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Atty. Jess Zachael Espejo

1. American Rule For example, A is accused of killing B. And then A, instead

The admission of such incompetent evidence without
objection by the opponent does not justify such opponent
from rebutting it by similar incompetent evidence.
So there’s no justification. If it is incompetent, you cannot
present incompetent evidence as well to counteract it.
2. English Rule
If a party has presented inadmissible evidence, the adverse
party may resort to similar inadmissible evidence.
3. Massachusetts Rule
The adverse party may be permitted to introduce similar
incompetent evidence in order to avoid unfair prejudice
caused by the admission of the other party’s evidence.
What should determine the application of the rule of
curative admissibility?
1. Whether the incompetent evidence was seasonably
objected to; and
2. Whether, regardless of the objection, the admission
of such evidence shall cause a plain and unfair
prejudice to the party against whom it is admitted.
July 5, 2018 – April Sillada
Different Types of Evidence
Material vs. immaterial
of saying that he’s guilty or not guilty, he’s simply saying “I
wasn’t even there when the crime took place. So how could
I be guilty?”
A denial of course is negative evidence. It is considered by
jurisprudence to be a very weak form of defense, and can
never overcome a positive or affirmative testimony,
particularly when it comes from the mouth of a credible
witness.
And informally, let me say that there is a third type: a
negative pregnant evidence. In civil procedure, we know
this to be negative pregnant admission. It’s a form of a
negative expression which carries with it an affirmation or
at least an indication of some kind, favorable to the adverse
party. It is a denial pregnant with an admission of the
substantial facts.
July 5, 2018 - Benrich Tan
Let’s go back to positive evidence, where a witness affirms
that a fact occur or did not occur.
 Example: A person got hit by car. At the trial, the
witness was asked if the headlight of the vehicle was
on.
o Positive evidence: If his answer was ‘yes’ or
‘no’, because it affirms the existence of a fact,
which tells you that the headlight was on or
off.

 Material evidence: That type of evidence which
directly proves the fact in issue
 Immaterial evidence: Something that has no
bearing whatsoever in the matter proving the fact
in issue.
Competent vs. inadmissible
 Competent evidence: Evidence that is allowed by
the law or the Rules of Court
 Inadmissible evidence: Those that are excluded by
the law or the Rules of Court.
o Negative evidence: If the answer was ‘I did
not notice’, because he did not see or know the
occurrence of a fact.
 Let’s compare this with alibi (also a
negative defense). If your defense is
an alibi, then you’re saying that you
weren’t there, then how could you
have hit him.
Negative pregnant is a form of negative expression which
carries an affirmation. Thus, it is a denial pregnant with an
admission.

Relevant vs. irrelevant  Example. “Have you ever smoked marijuana?”

 Relevant evidence: Evidence that has such a o Affirmative answer: “Yes, I’ve smoked
relation to the fact in issue as to induce belief in its marijuana”, or “No, I never smoked
existence or non-existence. marijuana”
 Irrelevant evidence: One that does not advance the o Negative pregnant: “I never smoked
proposition that you wish to prove. It is one that marijuana in school”. This implies that I
does not, in any way, make the fact in issue any smoked marijuana outside school.
less probable or improbable in proving things.

As to the need to infer or presume

Positive vs. negative

When you talk about positive and negative evidence, you’re Direct Evidence Circumstantial Evidence
talking about whether evidence affirms or negates. Establishes the existence of Does not directly prove the
a fact in issue without any fact in issue, but merely
So for example, when you talk about positive evidence, it is aid of inference or provides logical inferences
when the witness affirms that the fact occurred or did not presumption. that such fact really exists.
occur. While in negative evidence, on the other hand, is  No need to infer or  You still need to put
when the witness avers that he did not see or know the presume from the one and one together.
occurrence of a fact. He’s simply saying that “I do not evidence shown that
know.” it’s another fact
The witness testifies Each proof is given facts
A perfect example of that would be the oft-abused term
directly of his own and circumstances to which
“alibi.” In its simplest form, alibi is simply that you’re
knowledge as to the way the court may infer or
saying “I was elsewhere.”
facts are to be proved. connect facts which

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Direct Evidence Circumstantial Evidence

 Example: He knows it reasonably follow according o However, this could be circumstantial
to be true, because he to the common experience evidence.
saw it happen. He of mankind.
knows that it smells,  In appreciating  Rule 133, Section 4. Circumstantial evidence, when
because he smelled it. circumstantial sufficient. — Circumstantial evidence is sufficient for
evidence, you are conviction if:
appreciating the
relevancy of evidence. a) There is more than one circumstances;
 Going back to Section 1 b) The facts from which the inferences are derived are
of Rule 128: “Evidence proven; and
on collateral matters c) The combination of all the circumstances is such as
shall not be allowed, to produce a conviction beyond reasonable doubt.
except when it tends in
any reasonable degree The following is an example which teaches us:
to establish the
probability or  The distinction between circumstantial evidence from
improbability of the direct evidence
fact in issue.”  When circumstantial evidence is sufficient to warrant a
o When we talk conviction; and
about the  When circumstantial evidence advances the proposition
second part of (or when is it relevant)
the sentence,
we’re actually FACTS:
using common
sense on that. X was murdered, and Y was the primary suspect. X and Y
had a long-standing grudge, to the point they were seen
1. Direct Evidence altercating in a public setting at some point prior. Y was
reputed to be a gun-for-hire. However, there was no
 Proof of fact or point in issue that belief establishes the eyewitnesses during the shooting.
truth or falsity of the fact in issue, and does not arise
from a presumption. So in other words, it’s direct proof. The prosecution’s evidence was the testimony to prove:
You don’t need to infer the existence of other facts. It’s
just it, as it proves it directly. a) Y was at the vicinity during the scene of the crime. He
was inside the room where the victim was shot, and a
 Example: CCTV footage where accused is charged for person wearing a helmet with Y’s same height and built
theft. It directly proves the fact in issue, as it shows the was seen fleeing with a motorcycle from the scene of
accused stealing the objects. Thus, it proves the fact in the crime.
issue, in the form of object evidence (CCTV footage).
o But there was no one who could testify such,
 Take note that there are certain facts not susceptible of because there were no eyewitnesses.
direct proof, such as conspiracy. o The purpose for the prosecution’s evidence
was to prove opportunity, to place Y at the
o A conspiracy exists when two or more persons scene of the crime to prove that it was possible
come to an agreement concerning the that he was the one who shot X.
commission of a felony and decide to commit
it.  Possible, and not certain, because
o No one’s fool enough to produce their there was no eyewitnesses at the time
agreement into writing. Thus, you cannot when Y was shot.
expect direct proof of conspiracy, so
conspiracy can only be deduced by the acts of b) The animosity between X and Y
the perpetrator before, during and after the
commission of the crime, which are indicative o Such evidence was offered
of a common design of a certain action and o The purpose for the testimony of animosity
concurrence of sentence. was to prove motive, on which the grudge was
the reason why Y shot X.
2. Circumstantial Evidence
The accused’s defense was an alibi (negative defense, an
 Evidence not directly bearing on the fact in dispute, but inherently weak defense), in which Y was in a different
in various attendant circumstances from which the municipality at the time of the shooting. Y’s counsel
judge might infer the occurrence of a fact in dispute. presented witnesses placing him at the municipality.

 Example: Somebody was stabbed inside a house. A guy ISSUE:

came out of it with a bloodied shirt and knife, ergo, that Is evidence based on motive and opportunity material and
person killed that person. Correct? prove the fact in issue (whether Y shot X)? NO.

o In the matter of direct evidence, NO. RATIONALE:

Circumstances does not equal to him killing
that person. It could have just been a
Halloween costume. Direct evidence would be
an eyewitness or photographic evidence that
shows him killing the person.
Direct evidence of the shooting would be the eyewitness
account of the shooting or a photograph.
1+1=2. “1” for them would be somebody fitting Y’s
description was there at the scene (opportunity) and the

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other “1’ was that they had a history. That does not amount
to 2.
However, even if they were immaterial, they were still
relevant. The fact that Y had opportunity and motive were
collateral matters or circumstantial evidence on the fact in
issue. Although they do not tend to directly prove the fact in
issue, they have the tendency to establish the probability or
improbability of the fact in issue, and thus, admissible.
However, Y was acquitted, because the prosecution’s
evidence was merely circumstantial. It was inherently weak,
even though Y’s defense was also inherently weak. To
produce a conviction based on circumstantial evidence, the
sum of the circumstances must prove the fact in issue
beyond a reasonable doubt. The argument of the defense
was that the presumption of evidence must prevail, thus Y
was acquitted.
Remember, motive and opportunity are mere circumstantial
evidence They are not considered to be material or direct
evidence.
On another note, negative evidence is only defeated by
positive evidence. Since the defense was alibi, and since no
witness during cross-examination can say that they saw Y
shoot X at the scene of the crime, negative evidence is still
produced from the testimony. Also, between the
prosecution’s negative evidence and the accused’s negative
evidence, the latter prevails, due to the constitutional
presumption of innocence.
As to originality
Primary or Best Evidence Secondary or Substitutional
Evidence
Evidence which the law Inferior or substitutionary
regards as effecting the evidence or evidence which
greatest certainty of the itself indicates the existence of
fact in issue a more original source of
information
1. Primary or best evidence.
 EX. Presenting a promissory note in a collection
case; Presenting receipts to prove actual damages
2. Secondary or Substitutional Evidence
 EX. The TSNs being sold by various school
organizations. They are all photocopied, which
proves there is an original of such.
 Take note of the Best Evidence Rule, where the
subject of inquiry is the contents of a document, no
evidence shall be admissible other that original
document itself (subject to the secondary evidence
exceptions, whereby you are allowed to present a
mere copy rather than the original).
Types of Supporting Evidence
Tan-aw ug basketball and smoking. And ako naa ko sa
kuan... we have a porch at the compound where i can
directly watch the basketball game going outside across the
street.
Then suddenly there is this motorcycle riding in tandem,
went near the place where the person was standing and
then shot him point blank sa head.
I saw everything. And then its a basketball game LIGA so a
lot of people where watching. So right after he was shot,
dagan tong mga kuan, it like happened in 3 seconds. You
know what the people were doing? People looked up the
dead body instead of running away. People are not scared.
We are more chismoso then afraid. (heheh) that is what we
are as Filipinos.
And so let us suppose in the same example that i gave you,
the first example that i gave you. Naay nag-sumbaganay. A
sues B. And so gipatawag mo, mga 3rd year Manresa kay
kamo daw nananaw atong sumbagay. So nagsugod kang
student 1, student 2, student 3 and so on.
Everything is testimonial evidence attesting to the same fact.
Diba, so that is ( ??? ) of evidence. evidence of the same kind
and character tending to prove the same point.
Whereas corroborative evidence, additional evidence of a
different kind and character tending to prove the same
point. Ok?
Corroborative evidence, is deemed necessary only when
there are reasons to suspect that the witness did not tell the
truth or that his observations where inaccurate.
In People vs Ayupan febuary 13,2002, according to the SC,
Corroborative evidence is necessary only when there are
reasons to suspect that the witness bent the truth, or that his
or her observation was inaccurate. Evidence is assessed in
terms of quality, not quantity. It is to be weighed, not
counted.
And therefore, the consistent ruling of the SC had always
been that the testimony of a single prosecution witness, as
long as it is positive, clear, credible and sufficient on which
to anchor a judgment of conviction. Corroborative evidence
or cumulative evidence is not a pre-requisite for the
conviction of the accused. Truth is established not by the
number of witnesses but by the quality of their testimonies.
Now, Rape case, no homicide angle. Its not a complex crime,
its just rape.
A accused B of raping her.
Ummm how many eye witnesses do you usually have? 1,
unless there is a peeping tom na nanilip. Or the accused was
raping and then “come on! Enjoy the show”
So usually the crime of rape is a private offense. Its
committed usually in the dark, in the talahiban outside the
school. But its usually done 1 on 1. There is only 1 witness
and that is the victim.

Cumulative Evidence
Additional evidence of the
same kind and character as
that already given and
tends to prove the same
proposition
July 5, 2018 - Christian Yu
Corroborative Evidence
Additional evidence of a
different kind and character
tending to prove the same
point but different types of
evidence
Contrast that with a crime that would require more than 1
witness. Like treason. Pila kahinanglan gani? 2 witnesses
attesting to the same act of treason.
So there are crimes that can be proven or can produce a
conviction. A prosecution that produces a conviction with
the testimony of the sole prosecution witness. But there are
also other crimes where there has to be required
corroboration. Ok and that would be the crime of treason
among other crimes.

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 EVIDENCE
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Transcription based on the Lectures of
Atty. Jess Zachael Espejo
We will go to that later on, when we discuss instances
where a plurality of evidence is required.
Now, prima facie vs rebuttal and then conclusive evidence.
So when you say prima facie evidence, that is evidence that
is sufficient to establish a fact and if not rebutted becomes
conclusive of that fact.
Lets go to the crime of bribery for example,
What is punished in the crime of bribery? The acceptance of
a gift.
Remember that that mere acceptance of a gift is prima facie
evidence that bribery is committed.
Mere acceptance of that gift, regardless of the motivation
behind the gift. Or the favor that was given. Its already
prima facie evidence of bribery.
Another criminal case, BP22. Remember that unsang tawag
ninyo ana? You are prima facie assumed to know the
insufficiency of funds. The moment you receive the notice of
dishonour.
That is prima facie evidence, kung wala kang ma rebut that
is enough.
Later on, we will be discussing prima facie presumptions
when we go to rule 131. That is actually the longest
provision in all of the... kindly take a look at rule 131 section
3. (students look) and tell me how many pages are those. 7
pages. From paragraph A to paragraph KK. That the
alphabet going over. Thats the longest provision of law and
that will be your memory assignment for next meeting....
hehehe joke lng. Maayo kay naminaw mo.
So during my time, dean Inigo would challenge the
students. And then he said “ok lets say your grade is 65 in
evidence. ill give you a way out” what is the way out? “ you
memorize at the end of the semester you deliver your
memory of rule 131 section 3 from paragraph A to
paragraph KK”
But you have to memorize everything including the
commas and other punctuations. That was the deal of dean
inigo. And so being a dean inigo acolyte, when i started
teaching evidence i also told that to my students. I dared my
students. And there was this student who dared. So i was
forced to sit and listen to the student challenge me if she
really memorized. She ha so babae. So in the middle of
paragraph G i just said “ ok ill just pass you” hehehe wa
man ko naminaw. Kay dili man pud layo iyang grado and I
was still quit strict at the time. I don’t give considerations.
Ok 75R and I passed her.
Ok so what is rebuttal evidence?
That which is given by a party in a case to explain, repel,
counteract or disprove facts given by evidence on the other
side.
That rebuttal evidence is more particularly applied to that
evidence given by the plaintiff to explain or repel the
evidence given by the defendant
Whereas conclusive evidence,
That is evidence which is incontrovertible. That is to say
either not open or not able to be questioned as where it is
said that a thing is conclusively proved. It means that such
result follows from the facts shown as the only one that is
possible.
And finally you have intrinsic evidence vs. extrinsic
evidence.
Intrinsic evidence, Information necessary for the
determination of an issue that is gleamed from the
provisions of the document itself
And then you have extrinsic evidence, also called parol
evidence or evidence aliunde, refers to evidence form a
source outside the subject document.
Aliunde, simply means from another source. Another
source. Alibi means another place.
Alia means another person or other people. So mao na siya
“et al” .
Now you will encounter intrinsic evidence in wills and
succession. And later on we will take up the parol evidence
rule which in rule 130 section 9. So we will not talk about
that to much right now. Yet. Not yet.
As to the type of evidence you have object evidence,
documentary evidence, testimonial evidence and
demonstrative evidence.
Real or object evidence: Those addressed to the senses of the
court and are exhibited to, examined, or viewed by the
court.
It proves the existence, appearance and condition of
physical objects.
So addressed to the senses of the court. The sense of sight,
the sense of smell, the sense of hearing, the sense of taste,
the sense of touch. Its just ironic that the most important
sense of all “common sense” sometimes escapes the court.
Ok.
What about documentary evidence?
Consists of writings or any material containing letters,
words, numbers, figures, symbols, or other modes of
written expression offered as proof of their contents.
And then you have testimonial evidence which ae oral or
Written assertions offered in a court as a proof of what is
stated for as long as the witness whose testimony was
offered, perceived and in perceiving can make known its
perception to others.
Lets talk about real or object evidence first and contrast that
with documentary evidence.
In real or object evidence otherwise known as AUTOPTIC
PROFERENCE. We will go to that again when we go to rule
130 section 1. We are concerned about an object or
something that we as persons can perceive by the use of our
senses.
Ok? Kung unsay makit-an, unsang masimhutan, malasahan,
madunggan, magunitan. Mao na ang real or object evidence.
And it is precisely our perceptions using our senses that
would be material to the fact in issue. That would be
important for the matters to prove.
So let’s say for example:
This is a white board. Ok so what is a white board for? To
write sir. To write on. This is a wall, that is a wall. And they
are objects. This is paper. And then paper of course has
something written on it. And therefore is it safe to conclude
that this is a document? Safe to conclude that this is a
document, because it contains letters, numbers, figures,
words, and other modes of written expression? NO. Why?
Very simple, whatever is written there must be offered as
proof of their CONTENTS.
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 EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo
So it doesn’t necessarily mean that something is on paper is
papyric in nature, that is automatically a document.
(sir crumples paper) paper that i want to present to the court
to prove that the paper itself is crumpled.
So not necessarily that a paper is considered a document.
What about an object?
Now let us suppose that on that wall. A and B are
classmates from 3rd year Manresa again. Nangutang si A
kang B. And then wala man silay papel Makita. And they
had a pentel pen. They wrote it on the wall “ i promise to
pay B to him or his order the amount of 5k signed A”
What is that?
That is a promissory note. But its not even on paper.
Let us suppose that A did not pay B. And that is the only
evidence of the debt. So you have to like cut it out from the
wall. The bigger wall and bring it to court. Is it an object or a
document?
Thats not even an object. Why? Because it is offered as proof
of its contents. Not as proof of its physicial appearance, not
as proof of its material used. But rather what is stated there.
That is what makes it a document. Whatever is written
makes it a document.
It reminds me of, because not a lot of people know that i
taught succession before. Kabalo mo ana? I taught
succession before. As i said im the favourite of Gina. Pag
walay teacher, ako patudluon. And the teacher that time
was already my wife. Maternity leave.... i knocked her up so
she had to take a maternity leave and i had to take over
succession for her. And then during my research i came
across a case somewhere in Germany or Austria somewhere
there. And then somebody died sa iyang barn or farm. And
he was bloodied and he was about to die. So he scribbled
across the wall in German. And he wrote in the wall in
German the shortest will in history consisting of 2 words in
German, translated in English 3 words. “all to wife” using
his own blood “all to wife”
So that is his testamentary intent. Everything that i own i
leave to my wife. And you know what? It was admitted to
probate.
So gi sulat niya sa wall. Wall is not paper, but it was
submitted as a document. A holographic will.
I hope it doesn’t happen to me. There is no need to leave
anything to my wife, because my wife already owns
everything including my soul. BUT not my body.
Then you have testimonial evidence. Its what a witness
states in open court. Oral or even written assertions offered
as proof of the truth of what is being stated if the witness
can perceived and in perceiving can make known its
perception to others.
Now take note that testimonial evidence can be either oral
or written.
Oral – he utters it in open court.
Written, what about written assertions? Pwede diay na siya
sir? Affidavits are testimonial in character. A judicial
affidavit even.
When did you discuss judicial affidavits?
Civ pro. That is supposed to be evidence. ok at least my job
is already done. I don’t have to discuss judicial affidavits
with you. Those are written assertions, it’s in written form.
Now have you ever made affidavits in your lives. Like an
affidavit of loss. Anybody here that has ever lost an id? You
you have lost an id? 3 times. So I would assume that you
have executed an affidavit of loss 3 times as well.
Ok where did you go? Legal aid. How much did dean
quibod charge? 50 pesos. Ok so thats 50 pesos worth spent.
You spent a hundred pesos more because you were unlucky
twice more.
But, let me tell you that I can guess what goes on in that
affidavit of loss that you signed.
Like, did it go in a manner like you were going to school
maybe or you are going somewhere.
Or maybe you are about to go home and then you realized
that your I.D. was no longer there and you exerted diligent
efforts to locate your ID but your efforts were futile, right?
And so you are executing that affidavit to attest to the truth
of the foregoing facts and for the purpose of the issuance of
a new ID.
So in all 3 affidavits, executed at different times, you
testified the same way.
Am I not correct?
(He did.) See?
Because affidavits – If it is Ordinary Affidavits, these are
prepared by lawyers.
And lawyers employ their own language.
Ikaw bay gipasuwat sa imong affidavit? No.
It is the lawyer who prepares it and in all probability, it is a
prepared form and you just simply fill in the blanks.
Now, contrast that with a Judicial Affidavit, which is
supposed to be a substitute to a testimony in court.
The requirement of the law is that the judicial affidavit must
be executed – in the language known to the affiant or
witness.
It is not the language of the lawyer anymore because it is
supposed to be testimonial evidence that will be presented
in court.
So there are 3 as to the type of evidence:
1. Object or Real;
2. Documentary;
3. Testimonial;
And there’s 4th:
4. (Informally) Demonstrative evidence.
- Or evidence, in the forms of objects such as
maps, scale models, symbol, diagrams or
objects that has in itself no probative value but
is used to illustrate and clarify a factual matter
in issue or aid a testimony.
Demonstrative evidence –
It is evidence, as evidence is not prohibited
although not specifically mentioned in the Rules of Court.
In appreciating demonstrative evidence, the court uses the
same 5 senses in object evidence.
14
 EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo
But more importantly, the court applies intelligence to make
analysis, draw conclusions, and inferences from the objects
presented.
Thus, in demonstrative evidence, what is important is not
the object itself,
 but the information that the object creates.
Example:
This is usually when, I’ll tell you about a story of the
dumbest witness ever created by God in the case that I had
handled.
There’s this guy who cannot seem to answer anything
intelligently.
And so he was asked during direct examination,
“When the motorcycle hit you, unsa ka kalayo nalagpot?”
I forgot the exact question.
“You were thrown at a distance of what?” Okay, then
translate pa kay dumbest witness ever created gani. Then he
said, “50 meters”. Just imagine 50 meters. How far is that?
So he has that type of mentality. So I said na murag dili man
kaya na kaning witness na ni will be testifying in his own
power so there has be a need for demonstrative evidence.
So the next time that the witness is presented, because there
are 2 cases here involving the same incident, nagbuhat ko og
sketches.
Sketches simply to aid the testimony. So there are drawings.
Let us supposed that this is the motorcycle, and this was
you, and this is the store. So, “where were you after you
were hit?” And so he will point at that diagram and from
that, we can already estimate properly how far. To really
determine kung unsa kalayo siya nalagpot. Because that will
prove na paspas kayo ang dagan sa motor.
Because it will be impossible for the court to believe na
nabangaan kag motorcycle unya nalagpot kag 50 meters.
And so there is a need for demonstrative evidence,
Kadtong sketch. Recreations for example Or maps,
Let’s say a map is presented in court for a witness to
identify where he found, for example, the body fo the
victim. And so he will point to it.
What’s the evidence there?
When we talk about demonstrative evidence, is it where he
pointed in that particular map? Or is it his testimony that
was merely aided by the object?
It is  his testimony.
So it is a hybrid between (a vampire and a warewolf. Nag
joke si sir.)
A hybrid between real evidence and testimonial evidence.
Now, in PEOPLE VS. LAVAPIE:
If the physical evidence on record runs counter to the
testimonial evidence of the prosecution witnesses,
conclusions as to physical evidence should prevail.
Physical evidence is that mute but eloquent manifestations
of truth which rate high in our hierarchy of trustworthy
evidence.
In the light of the physical evidence obtaining in this case,
contrary to oral assertions cannot normally prevail.
Greater credence is given to physical evidence as evidence
of the highest order because it speaks more eloquently than
a hundred witnesses.
So there is a Hierarchy Of Evidence:
1) Ang pinaka trustworthy, according to the SC, is
Physical Evidence.
- Which is to say  Real or Object Evidence
But there are still other evidences like documentary and
then you have testimonial.
So between documentary and testimonial, which will
prevail in case of conflict?
Which one is more trustworthy?
According to the SC, in GSIS VS. CA: Documentary
evidence prevails over Testimonial evidence. Why? Because
Testimonial evidence is easy of fabrication and there is very
little room for choice between testimonial evidence and
documentary evidence because it is in the nature of people
na mangatik and I am looking at you guys right now, hilig
mo mangatik.
So testimonial na lang ang pinaka ulahi, ang pinaka ubos.
But you need to remember that there are also 2 forms of
testimonial evidence:
- Oral testimony; and
- Written testimony.
So which one prevails over the other?
According to the SC, in PEOPLE VS. BALLENO:
In any case, open court declarations take precedence over
written affidavits in the hierarchy of evidence. Unlike
written statements, there is flexibility on the part of the
questioner to adapt his questions to elicit the desired answer
in order to ferret out the truth. Therefore, Oral testimony
prevails over written testimony.
Hierarchy Of Evidence:
1) Physical Evidence
- Real or Object evidence
2) Documentary evidence
3) Testimonial evidence
a. Oral testimony
b. Written testimony
So you already have that full picture and then you’ll say na
“Banga ka testimonial evidence! Grabe ka oy.”
So let us suppose that this is an axe, which is the murder
weapon. So somebody was hacked to death with an axe.
Then object is evidence of the highest order. So what do we
do?
You present the axe in court and you put the ax in the
witness stand and then you say “Okay axe, go ahead and
testify. What happened Mr. Axe?” Or okay, let us not use
this (eraser) because obviously, this is not an axe.
Let us supposed we have that Deed of Sale, which allegedly
transfers the deed to where the Ateneo de Davao is standing
to a person named Tampolano, sometime 20 years ago and
then the heirs of Tampolano are now claiming that they own
the lot where Ateneo stands.
Di ba naa tay Latin Maxim na – “Accesorium Sequitur
Principale”
15
 EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo

 Accessory follows the principal “Ok, guilty- 1”

So anything built on top of the lot is considered as part of
the lot. So the heirs are saying that “We own Ateneo.” and
they have that Deed of Sale.
So in court, in the case against Father Tabora, I presume,
there is a document. And so let us present the document.
Put it at the witness stand.
NO!
Objects and documents do not testify by themselves.
Which brings me to my point –
That even if testimonial evidence is the weakest, the lamest
among the different types of evidence,
 It is still the most important.
That’s opinion and it is legally irrelevant. Your opinion does
not matter in court, the only opinion that matters in court is
the opinion of the court itself. Regardless of how stupid that
opinion might be, it’s still the opinion of the court.
Expert Evidence- consists of the opinion of a witness on a
matter requiring special knowledge. In cases requiring
specialized knowledge, expert testimony is required.
In medical malpractice cases, what you have to prove is the
fact that the medical practitioner deviated from the
standards that are usually employed in the medical
profession and the only way you can do that is through
expert testimony of a medical practitioner. But, ordinarily
expert testimony would not be required and even when
expert testimony is presented in court, they are merely
persuasive and they are not binding upon the court.

Ordinary evidence- consists in the testimony of a witness

Why? Because no evidence, object or real or documentary who testifies to those facts which involves his personal
evidence, will ever be presented in court unless they are in knowledge, which are solely derived from his perception.
effect sponsored by a witness. We’ll go to that when we reach Ordinary testimony.

So naa jud witness na Take note that there should be a liberal construction of the
rules of evidence. It must be liberally construed, for they are
- mag authenticate, mere rules intended to facilitate the administration of
- mag identify and justice. A strict and rigid application of the rules must be
- then testify with the primary objective of enhancing substantial justice.

on the contents of the document or an object.

July 5, 2018 (1:06:01- 1:36:00) Dane Viola

No evidence object, real or documentary evidence will ever

be presented in court, unless someone will authenticate,
identify and testify a document or an object. You cannot just
bring an object in court and let the court observe it, there
must be somebody who must attest to them. So testimony
evidence is at the bottom, but it is the most important.

TYPES OF TESTIMONIAL EVIDENCE

1.Oral and Written testimony

2. As to tenor of testimony:

 Ordinary evidence
 Character or Reputation evidence
 Opinion evidence
 Expert evidence- a species of Opinion evidence

Character or Reputation Evidence- evidence attesting to

one’s character and moral standing in the community
Generally the character is regarded as irrelevant in the
determination of the controversy.

Because otherwise, what will happen? It is simply the

judge’s impression on the person. So if the judge says “Ay,
ka pangit sa reputasyon, leche.” Then he will never win
because of his character and his reputation is not ok, that’s
why it’s legally irrelevant.

Opinion Evidence- evidence based on what one believes or

infers, based on personal knowledge or facts related to the
facts in issue. Why is this not allowed? Because otherwise,
what will happen is it will be a popularity contest. So let’s
just do a survey of the opinion of the people.

“Is he guilty, or not guilty?”

“In my opinion, not guilty.”

16
 EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo
RULE 129
WHAT NEED NOT BE PROVED
Section 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, the official acts of legislative,
executive and judicial departments of the Philippines, the
laws of nature, the measure of time, and the geographical
divisions. (1a)
Rule 129 covers Judicial Notice which can be mandatory,
discretionary or Judicial Notice when hearing is necessary,
and Judicial Admissions.
Mejia Espinoza vs Cariño
The general rule is that courts must based their factual
findings on such relevant evidence formally offered during
trial, recognized exceptions to this are matters which courts
can take judicial notice of, judicial admissions, and
presumptions created by law or by the Rules.
When can proof be dispensed with? When a conclusive
presumption applies, no proof is required because it is
conclusive already. You can’t refute it because it is already
considered final under the law.
Example:
A child is conclusively presumed to be incapable of
criminal liability provided that there is ample
evidence or proof about his age.
What happens if it is a mere disputable presumption? It
merely defers the presentation of proof.
Example:
There would be the presumption that an unlawful
act is done with an unlawful intent. In other words,
intent is presumed in the unlawful act. This means
that the prosecution need not prove in the mean
time that the accused committed the act with
criminal intent.
However, if the accused proves that the act was
done without intent, that’s the time when the
prosecution presents rebuttal evidence so as to
refute the proof made by the accused that he did
the act without criminal intent.
It therefore, has an effect of shifting the evidence upon the
party against whom a disputable presumption is imposed.
Example:
Article 2185. Unless there is proof to the contrary, it is
presumed that a person driving a motor vehicle has been
negligent if at the time of the mishap, he was violating
any traffic regulation.
Let’s say a person is over speeding, in a way that it
is transgressing the limits set by the law.
What’s the effect of Art 2185? The plaintiff, need
not prove negligence on the part of the defendant,
the burden shifts to the defendant to prove that he
was not negligent.
When a fact is admitted by the parties in court, proof can be
dispensed with.
Example:
If the existence of a debt is stipulated upon, the fact
is already withdrawn from contention then such
fact need not be proved.
MATTERS THAT FALL WITHIN THE REALM OF
JUDICIAL NOTICE
It is the assumption of the court of a fact without need of
further traditional, evidentiary support. This principle is
based on convenience and expediency in introducing
evidence on matters which are not ordinarily capable of
dispute and are actually bona fide disputed and the tenor of
which can safely be assumed from the tribunals general
knowledge or from a slight search on its part.
Manifesta probatione non indigent- manifest things don’t
require proof.
Rationale: Taking Judicial Notice is a matter of expediency
and convenience for it fulfills the purpose that the evidence
is intended to achieve and this is equivalent to proof.
So it would be superfluous, inconvenient and expensive
both to the parties and the court to require proof in the
ordinary way of facts that are already known to the court. In
fact, insistence of not taking judicial notice might lead to
absurd results.
What are matters that the courts are supposed to take
judicial notice of?
Example:
Laws of nature, like the law of gravity.
What is the rate by which an object falls? At the
rate of 9.8m/s2.
“Sir! Someone jumped from the top of the Marco Polo!”
“Nahulog?”
“Malamang!”
“What happened to him?”
“AY edi namatay!”
Laws of nature! You will FALL (awwww sir, walay
tinud-anay! lels)
When you fall, it is logical to assume that you will
die.
This is why the courts take judicial notice of the
laws of nature.
Geographical divisions, existence and territorial extent of
states.
For example, there is a Swiss from Switzerland
who files a case against a Filipino in the
Philippines for the collection of a sum of money.
He sues the Filipino in court to collect the debt, and
during his testimony, the court has to ask:
“What’s your citizenship?”
“I’m from Switzerland”
“What is a Swiss and where is this Switzerland? The
court is not convinced that Switzerland exists! So the
court will have to go to Switzerland himself and the
plaintiff will pay for the fare.”
The court can’t do that! The court has to take
judicial notice of the existence and territorial extent
17
 EVIDENCE
SY 2018-2019
Transcription based on the Lectures of
Atty. Jess Zachael Espejo
of states because it is of public knowledge capable
of unquestionable demonstration.
Edsam Andit
So, there’s this guy. He’s an American suing a Filipino for
the. Ay Swiss nalang. Para malahi nasad. Switzerland. They
say Switzerland is a nice country. So, there’s a Swiss guy
who files a case against a Filipino guy for a collection of
loan. And during his testimony, the court asked him. “What
is your citizenship Mr. Plaintiff?”. The plaintiff said “I am
Swiss”. Then the court would say “What is this Swiss? And
where is this Switzerland?”
The court is not convinced that Switzerland exists. So, the
court will have to go to Switzerland. Except, the plaintiff
would have to pay for the plane ticket. You cannot do that.
You have to take judicial notice of the extent and territorial
jurisdiction of States. Because anyway, it is of public
knowledge and capable of unquestionable demonstration.
It’s as simple as that. Otherwise, it would be absurd.
If I were the judge, and I have to opportunity to travel for
free, of course I would! But it cannot be done.
(Shares his story of being claustrophobic. Not being able to
stay in the plane for more than 4 hours.)
Now, let’s go to mandatory judicial notice. You already
memorized it. Which is good because Rule 129, Section 1
(MANDATORY JUDICIAL NOTICE) is always present in
any evidence reviewer and is always asked in the BAR.
But for purposes of our discussion, I will not go over the
objects of mandatory judicial notice one by one. But what
we are got to focus on will be simply mandatory judicial
notice of laws. Because we are law students and we are here
to know the law. So, let’s focus on that.
LAWS THAT ARE SUBJECT TO MANDATORY
JUDICIAL NOTICE
1. LAW OF NATIONS
2. ACTS OF THE LEGISLATIVE, EXECUTIVE, AND
JUDICIAL DEPARTMENT OF THE PHILIPPINES
3. ORDINANCES
4. LAWS OF NATURE
LAW OF NATIONS
Why do we take judicial notice of law of nations?
Because it is mandated by the 1987 Constitution. Which say
that - "The Philippines renounces war as an instrument of
national policy, adopts the generally accepted principles of
international law as part of the law of the land and adheres
to the policy of peace, equality, justice, freedom,
cooperation, and amity with all nations".
Based on the Constitution, we therefore, should take judicial
notice with the generally accepted principles of
international law. And the law of nations could actually be
understood in a different way. Such as, in the sense that we
are referring to a law of a particular nation. We do not take
judicial notice of a foreign law as a general rule.
Foreign laws actually present a question of fact. Therefore,
as the general rule, they may not be taken judicial notice of
and have to be pleaded and proven same as any other fact.
How do you do it?
 For written foreign law, we follow the process
stated in Rule 132, Sections 24 and 25.
 For unwritten foreign law, we follow Rule 130,
Section 46.
Take note, however, of the following principles.
1. A foreign law may be admitted without prove if it
is subject to judicial admission.
a. So, if a party to the case, plead a particular
foreign law and then the other party
admits it, then it is already taken judicial
notice of. In a way, it does not require
proof anymore.
2. In the absence of proof or admission to foreign law,
it is presumed to be the same as the Philippine
laws. (PROCESSUAL PRESUMPTION)
Example:
CONDON vs COMELEC
FACTS:
Maja, was the winning Vice-Mayoralty candidate
of Caba, La Union. A petition for quo warranto
was filed against her on the ground that she was a
dual citizen. Who, under RA 9225, must execute a
sworn renunciation of her Australian citizenship.
Maja answered that when she executed a
declaration of renunciation of Australian
citizenship in Australia, she is deemed to have lost
her foreign citizenship based on the laws of
Australia.
She wanted the court to take notice of the laws of
Australia regarding laws of citizenship. She also
contended that the mere fact of running for public
office is a clear abandonment of her foreign
citizenship. Citing VALLEZ vs COMELEC.
ISSUE:
Did Maja successfully convince the court? NO
RULING:
Foreign laws are not a matter of judicial notice.
Like any other fact, they must be alleged and
proven. And to prove foreign law, the party
invoking it must present a copy thereof and
comply with Sections 24 and 25, Rule 132. In the
absence of proof, the Philippines courts will apply
the Philippine law under the doctrine of processual
presumption.
LAWS AS OFFICIAL ACTS OF THE
LEGISLATIVE DEPARTMENT
All judges are presumed to know all the laws, all
statues, including their status kung na repeal na ba,
kung na amend na ba, etc. Kay kung wala ka
kabalo, nganong nag huwes paman kang animala
ka! Judges must know more of the law than
lawyers.
Let’s assume for now that all judges know the law.
All statutes. But are there other legislative acts
other than statutes? Are there other acts that are
part of the realm of the mandatory judicial notice
without being statutes? Yes, there are.
Example:
CHAVEZ vs PUBLIC ESTATES AUTHORITY
The court ruled that a Senate investigation report is
deemed covered by mandatory judicial notice
because that is an official act of the legislative
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department.
Congressional debates and other records that
predicated the passage of the law are considered to
be official acts of the legislative department and
therefore within the realm of mandatory judicial
notice.
OFFICIAL ACTS OF THE EXECUTIVE DEPARTMENT
Executive orders and presidential decrees, when they take
authority from the legislative power directly granted to the
executive or by the Constitution or made pursuant to the
valid legislative delegation granted to the president, have
the full force and effect of law or statute.
Perfect example is the Family Code of the Philippines (EO
209) issued and promulgated by then President Corazon
Aquino during the time when she was given transitory
legislative power under by the provisional constitution of
1986 following the grant of legislative power during the
time of Marcos under the 1973 Constitution.
Example:
Can a family court take judicial notice of an age, let’s say
below 18, by just observing that the person looks like a
minor?
So, gitan.aw sa korte. Then ana ang korte na “ah he looks
like a minor. Therefore, the case must be within the
jurisdiction of the Family Court.” Can the court do this?
NO!!! because when the court looks at the witness or the
victim or the plaintiff, what the court is doing is actually
appreciating an object evidence by using the sense of sight.
So, when you do that, when you use your senses to perform
the so called “autaptic preference” that’s no longer taking
judicial notice.
So, the concept of autaptic preference is actually repugnant
to the concept of judicial notice.
PASEO vs. LOPEZ
August 19, 1993
ISSUE: W/N presidential issuances can be considered a
law.
RULING: YES
Letters of instructions are considered matter of judicial
notice. To form part of the law of the land, a decree order or
letter of instruction must be issued by the President in the
exercise of his extraordinary power of legislation as
contemplated in Section 6 of the 1976 Amendments of the
Constitution. Not all decree order or letters of instruction by
the President become part of the law of the land.
So, other official acts of executive also in the case of.
SAÑADO vs. CA
April 17, 2001
RULING: The action of an administrative agency in
granting, denying or even suspending or revoking a license
of franchise or certificate of public convenience is
administrative or quasi-judicial. Decisions of the office of
the president are official acts and those acts exercising
quasi-judicial power by the executive department may thus
squarely fall under matters relative to the executive
department which the court are mandatorily tasked to take
judicial notice of. Judicial notice must be taken of the
organization of the executive department, its principal
officers, elected or appointed such as its president.
REPUBLIC vs. SOUTH SIDE
HOMEOWNER’S ASSOCIATION INC.
September 22, 2006
FACTS:
There was a land occupied by Homeowner’s Association
which was originally used by soldiers as a military
reservation. Hence, even if it was used for residential
purposes, it is still subject of a military reservation.
Remember that in your Land Title and Deeds, a military
reservation is not susceptible of being placed under the
operation of Torrens system. But, Homeowner’s Association
applied for the titling in their individual capacities.
ISSUE: W/N a land that is under a military reservation can
be subject to an application for titling.
RULING: NO
Titling of the property cannot be allowed. You should take
judicial notice of Proclamation 423 which the courts are
mandated to do. It is still part of a military reservation. In
order for a parcel of land to be part of the alienable land of
public domain, there has to be a declaration that the same is
alienable and disposable. That’s the only time that you can
apply for titling under PD 1529. However, SC said that
application for titling (PD 1529), or the presidential decree
providing for lands covered under military reservation is a
matter cognizable by the court pursuant to Section 1 Rule
129. Hence the same is within the realm of mandatory
judicial notice.
However, take note of the case of ASIAN TERMINALS vs.
MALAYAN INSURANCE, where the SC said that not all
exercises of the executive power can be subject to
mandatory judicial notice. You need to distinguish what
type of function is being undertaken by the executive
whether governmental or proprietary functions.
ASIAN TERMINALS vs. MALAYAN INSURANCE
April 4, 2011
FACTS:
In a case for damages, Asian Terminal was adjudged liable
by the RTC in an amount of P643, 600 for losses due to its
mishandling of cargo. Asian Terminal has management
contract with Philippine Ports Authority (PPA). The PPA
does not conduct cargo and stevedoring services but it
enters into contracts in behalf of the Government with
private terminal operators who handle the cargo.
Asian Terminal wants to impress upon the court that it
cannot be held liable of P643,600.00 because Section 7.01,
Article VII of the Management Contract it entered into with
PPA limits their liability due to mishandling of cargo to
P5,000 per package regardless of the value of the cargo.
Hence, the court should take judicial notice of such contract
because it is an official act of the executive department of
the Philippines through the PPA.
ISSUE: Whether or not the courts can take judicial notice of
the management contract as an official act of the executive
department of the Philippines
RULING: NO
The Management Contract entered into by Asian Terminal
and PPA is not a matter subject to mandatory judicial notice
because it cannot be considered as an official act of the
executive department of the Philippines. The contract was
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entered into by virtue of the exercise of a proprietary
function not a governmental function.
Hence, there is a need to distinguish the types of functions
of the Government:
1. Governmental function – subject to mandatory judicial
function as held in the case of Republic vs. South Side
2. Proprietary function – not subject to mandatory judicial
function as held in the case of Asian Terminals vs. Malayan
EXECUTIVE POWER OF CLEMENCY
Diba daghan man ug acts under executive clemency? Like
pardon, amnesty, stay of execution, etc.
But not all exercises of the President under his power of
executive clemency are subject to mandatory judicial notice.
PEOPLE vs. CASIDO March 7, 1997
Between pardon and amnesty, it is amnesty that is taken
mandatory judicial notice. It is not pardon being a private
act of the President and being such, it must be pleaded and
proven by the person pardoned.
Take note pardon is granted by the chief executive and as
such it is a private act which must be pleaded in court by
the person being pardoned because the court takes no
judicial notice thereof. However, amnesty by proclamation
of the chief executive with the concurrence of congress is a
public act of which the courts should take judicial notice.
Pag private act, not susceptible of mandatory judicial notice.
Pero pag public act gani, it is susceptible of mandatory
judicial notice.
AMNESTY PARDON
Subject to mandatory Not subject
judicial notice
Need not be pleaded Must be pleaded
OFFICIAL ACTS OF THE JUDICIAL DEPARTMENT
These refer mostly to decisions and cases. An example
would be the Rules of Court. Courts should take judicial
notice of the issuances and the decisions rendered by the SC
but not blindly because the fact that the SC ruled a certain
way, does not mean that it would be the same decision all
through out and to all cases of same nature. In some cases,
you still have to prove certain facts to determine whether
the doctrine laid down by the court would be applicable or
not.
The basis of taking judicial notice of such is because of:
Article 8 of the CC: Judicial decisions applying or
interpreting the laws or the Constitution shall form a part
of the legal system of the Philippines.
So, no problem in taking judicial notice if it is the SC
because they have the effect of law.
But for decisions of the lower courts,
General Rule: they are not given judicial notice. In
prosecuting a case for trial, generally, courts are not
authorized to take judicial notice of the contents of the
records of other cases even when such cases are pending in
the same court and notwithstanding that both cases may
have been tried or are pending in the same judge. But this
however admits certain exceptions. (REPUBLIC vs
SANDIGANBAYAN)
Exceptions: Permissible judicial notice of records of lower
courts. As a matter of convenience to all the parties. When
in the knowledge of and absent of objection from the
parties, reference is made to it for that purpose and
admitted as part of the record of the case then pending, it
can be taken a judicial notice.
Take note of these cases:
OCCIDENTAL LAND TRANSPO VS CA (1993): That
there should be an absence of objection, meaning both
parties agree, as a matter of convenience between two
parties to treat the records of another case as read into the
records. Those are the two requisites you need to remember:
1. absence of objection and 2. consent of the parties
REGULUS DEVELOPMENT vs. DELA CRUZ (2016),
The SC took judicial notice of a case that was just decided
between the same parties and practically the same title. The
SC did not even continue to look at the facts anymore. It
simply took judicial notice that in that other case with a
different general reference number, they ruled already as
follows.
ORDINACES
Ordinances are not included in the enumeration of matters
covered by mandatory judicial notice under Sec 1 Rule 129
of Rules of Court.
To simplify the rules:
1. When the MTC required to take judicial notice
a. A Municipal Trial Court is required to take
judicial notice of ordinances of the municipality or
city where it sits.
Example:
MTC Davao should take judicial notice of ordinances
coming from Davao City. It’s part of the mandatory judicial
notice.
A MCTC (municipal circuit trial court) which may
encompass more than one jurisdiction, thus, must also take
judicial notice of ordinances within those jurisdictions.
2. When the RTC required to take judicial notices
a. The RTC must take judicial notice of ordinances
only when required to do so by the statute such as
charter of a city.
If I’m not mistaken, the charter of Davao City has a
provision saying that all courts, operating within the
territorial jurisdiction of Davao City, are required to
take judicial notice of ordinances.
b. In the case of appeal before the RTC wherein the
inferior court took judicial notice of an ordinance
involved in the said case.
c. When an ordinance is already capable of
unquestionable demonstration.
Example:
The Non-Smoking Ordinance of Davao City. We
were the first to regulate smoking in the city.
Where the ordinance is more stringent than the
national law. Before in Manila, you can smoke
almost anywhere. Now, in Duterte’s time, you can
only smoke if you go to the smoking areas. That is
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one effect of an ordinance capable of
unquestionable demonstration.
(Shares further stories about how one can freely
smoke anywhere in Manila during the time he took
the BAR.)
Gillian Grancho
Evidence
July 5 (2:06:01 – end)
There were five of us inside the taxi, Dean Inigo, Bobet
Torreon and 3 debaters. Just imagine unya nag sigarilyo si
Dean Inigo. Then when he developed enfisema, that’s when
he said that we should not smoke anymore here in law
school kay bawal.
Take note in the case of SJS v ATIENZA (2008), you cannot
just simply expect a court to take judicial notice of an
ordinance. The duty of the party, therefore, is to supply the
court with a copy of the ordinance if it wants the court to
take judicial notice of it. That was the warning of the
Supreme Court (SC) in this case.
SJS v ATIENZA (2008)
FACTS:
Petitioners Social Justice Society (SJS) et.al. filed a petition
against Hon. Jose L. Atienza, Jr., then mayor of the City of
Manila, to enforce Ordinance No. 8027, reclassifying the Oil
Depot in Pandacan Terminal, from industrial to commercial
area and to cease and desist from operating their businesses
from the date of effectivity of the ordinance. Oil
companies, Chevron, Shell, Petron as well as DOE sought to
intervene and asked for the nullification of said ordinance.
(Issuance of said ordinances is said to be an exercise of
police power)
ISSUE: WON the Court should take judicial notice of the
ordinance
RULING:
While courts are required to take judicial notice of the laws
enacted by Congress, the rule with respect to local
ordinances is different. Ordinances are not included in the
enumeration of matters covered by mandatory judicial
notice under Section 1, Rule 129 of the Rules of Court
Although, Section 50 of RA 409 provides that:
SEC. 50 Judicial notice of ordinances. - All courts sitting in
the city shall take judicial notice of the ordinances passed by
the [Sangguniang Panglungsod].
This cannot be taken to mean that this Court, since it has its
seat in the City of Manila, should have taken steps to
procure a copy of the ordinance on its own, relieving the
party of any duty to inform the Court about it.
Even where there is a statute that requires a court to take
judicial notice of municipal ordinances, a court is not
required to take judicial notice of ordinances that are not
before it and to which it does not have access. The party
asking the court to take judicial notice is obligated to
supply the court with the full text of the rules the party
desires it to have notice of. Counsel should take the
initiative in requesting that a trial court take judicial notice
of an ordinance even where a statute requires courts to take
judicial notice of local ordinances.
The intent of a statute requiring a court to take judicial
notice of a local ordinance is to remove any discretion a
court might have in determining whether or not to take
notice of an ordinance. Such a statute does not direct the
court to act on its own in obtaining evidence for the record
and a party must make the ordinance available to the court
for it to take notice.
LAWS OF NATURE
A few more, we have here laws of nature, the case of
PEOPLE V MENESES (1998). In this case, what the SC took
judicial notice of was the fact that at around 3 in the
morning during Christmas season, it is still quite dark and
that daylight comes rather late in this time of the year.
There was an issue as to whether or not the identification by
the witness of the assailant was okay because of
illumination. The contention was that it was not really
illuminated at that time. There was no street light. And yet
the witness positively identified the assailant. So the court
took judicial notice, there was no illumination other than
probably the sun. Pero diba ngit ngit pani sya.
PEOPLE V MENESES (1998)
FACTS:
At around three o clock in the early morning of December
15, 1991, thirty-three year old Cesar Victoria was stabbed to
death while sleeping with his seven-year old son
Christopher in a rented makeshift room in Tondo, Manila.
Christopher testified that he witnessed the stabbing of his
father. He testified that he went to his fathers rented
makeshift room to sleep.He further testified that he was
awakened from sleep and saw his father being stabbed in
the heart with a veinte nueve. After the assailant ran away,
Christopher cried.
RULING:
We find that the trustworthiness of the identification of
appellant by Christopher is dubious, raising reasonable
doubt in the mind of the Court as to appellants culpability.
It was established that the crime took place in the wee hours
of the morning, before the crack of dawn, at around three
oclock. The court can take judicial notice of the laws of
nature such as in the instant case, that at around three in
the morning during the Christmas season, it is still quite
dark and that daylight comes rather late in this time of
year .Nowhere in the description of the crime scene by
witness SPO3 Mendoza in his testimony was it established
that there was light or illumination of any sort by which
Christopher could see the attacker.:
The crime took place in a makeshift room measuring about
three by five square meters. While the room had a door,
there was no mention of a window which could have
allowed entry of some kind of light from the outside. It is
highly improbable that a young boy, just roused from sleep
and his eyes adjusting to the unlit room, could identify the
attacker, much less identify the knife used, as Christopher
did, as a veinte nueve.
It was weird for me because when we were in our vacation
in summer, because in Kuala Lumpur, at 8 in the morning, it
is still dark. Murag alas 5 diri sa Pilipinas. It will be hours
before the sun come out. So maybe, taking judicial notice of
sunrise-sunset and everything, it should be taken on a case-
to-case basis. You cannot say that you can use People v
Meneses as precedent for taking judicial notice.
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And now there’s this weird case of GABRIEL V CA (2004),
so what’s the story?
Very simple story, naay nagbangga and then, the witness
upon hearing the bangga, immediately went to the place
kung asa ang bangga and pag adto nya ngadto mao pa diay
to pangbangga. In other words, its the sound that came
ahead of the actual collision. So unsa na sya? Kilat og
dalugdog?
Dili mana ana, so the SC said, since this courts are obliged to
take judicial notice of the laws of nature, this Court prefers
to side with prudence. So therefore, the testimony of the
witness is an epic fail.
GABRIEL V CA (2004)
FACTS:
There was a collision involving 3 vehicles. One witness,
Brgy Chairman testified that he was on the shoulder of the
road, beside the truck, when the first collision took place.
From his vantage point, his view was obstructed by the
truck. He claimed to have first heard the collision. He
immediately took five big steps onto the highway, and then
saw the Beetle and the jeepney colliding.
ISSUE: Whether the testimony of Gonzales should be given
credence
RULING:
No. His testimony is essentially saying that the sound of the
collision took place before the actual collision itself. If true,
this would rate as one of the greatest scientific revelations
of all time. But since courts are obliged to take judicial
notice of the laws of nature, this Court prefers to side with
prudence.
The RTC also correctly pointed out that the natural
tendency in such case would be for Gonzales to have taken
caution and avoid exposure to danger. Instead, Gonzales,
who was already on the shoulder of the road, stepped into
the highway and along the possible course of the collision
he claimed to have heard occurring. The human mind may
be less predictable than the physical laws, but the
conjunction of two unnatural occurrences at once is just too
much for this Court to believe but more than enough to taint
the credibility of Gonzales’ testimony
Kindly take note of the case of Republic v University of the
Philippines and Rosario (Jan 27, 2016). Take note of the
ruling.
REPUBLIC AND THE UP vs. ROSARIO
(From 2017 TSN)
FACTS:
The title of UP over its Diliman campus had been put to
question. Rosario filed a case for reconstitution of lost title.
Nagkataon that the area that he intends to reconstitute is
actually included in the aggregate landholdings of UP
Diliman University.
UP opposed alleged that Congress made a declaration
under RA 9500 that the absolute ownership of the national
university (UP) over the landholdings in Diliman, Quezon
City including those covered by OCTs and TCTs in the
name of UP and their future derivatives is hereby
confirmed. In several cases, it was ruled that the title of UP
over these lands had become incontrovertible so that courts
are precluded from looking anew into their validity. So the
UP is saying that there is a law and that should not be
subject to the titling of another person. There is a catena of
cases already decided by the SC which says that such land is
owned by UP.
During trial, petitioner Rosario presented evidence for the
reconstitution of title. UP also presented its own evidence. It
presented its own title. So how then can you reconstitute a
title when a different title has already been issued covering
the same area. What the UP simply presented was certified
true copiessigned by its own record custodian. Normally,
when you reconstitute titles, you go to the ROD and have
certified true copies issued by the ROD or in the very least,
present your own ODCT. The copy in the ROD must be the
same as that of the ODCT. Otherwise, it can’t be recorded.
The RTC allowed the reconstitution in Rosario’s name. it
reasoned that UP failed to present a certified true copy from
the ROD but instead it presented a record issued by its own
custodian.
ISSUE: Is the RTC correct?
RULING: NO
The RTC should not have allowed the reconstitution when it
should have taken judicial notice of the several cases cited
by the SC and even the statute saying that UP’s title over the
land is already incontrovertible.
Section 1, Rule 129 of the Rules of Court mandates that a
court shall take judicial notice, without the introduction of
evidence, of the official acts of the legislative, executive, and
judicial departments of the Philippines. Thus, as both
Congress and this Court have repeatedly and consistently
validated and recognized UP's indefeasible title over its
landholdings, the RTC and the Court of Appeals clearly
erred when it faulted the Republic and UP for presenting
certified true copies of its titles signed by its records
custodian instead of either the duplicate originals or the
certified true copies issued by the Register of Deeds of
Quezon City. Indeed, the RTC and the CA should have
taken judicial notice of UP's title over its landholdings,
without need of any other evidence.
July 11 (start to 25:00) – Gillian Grancho
Section 2. Judicial notice, when discretionary. — A court
may take judicial notice of matters which are of public
knowledge, or are capable to unquestionable
demonstration, or ought to be known to judges because of
their judicial functions. (1a)
You need to remember that Section 2 is so called
discretionary because, by its very nature, it depends solely
upon the judgment of the courts. It’s actually the court
asking itself, “should I or should I not take judicial notice of
a particular fact?” Unless a matter falls squarely within the
ambit of Section 1, you cannot actually compel the judge to
take judicial notice of a particular fact. Because of that,
judicial notice under Section 2 cannot therefore be
compelled by mandamus.
What you need to remember in Section 2 are the 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.
Let’s go first to No. 3, “it must be known to be within the
limits of the jurisdiction of the court”
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It simply means it is a matter which the court can take
cognizance of. It has to be within its limits, both power-wise
and territory-wise.
“It must be well and authoritatively settled and not
doubtful or uncertain”
It simply means that there’s no contestation, everybody
practically knows about it, nobody disagrees with it
“The matter must be one of common and general
knowledge”
The concept of "facts of common knowledge" in the context
of judicial notice has been explained as those facts that are
"so commonly known in the community as to make it
unprofitable to require proof, and so certainly known x x x
as to make it indisputable among reasonable men."
(Magdalo sa Para sa Pagbabago v Comelec)
The key phrase that you need to remember is “unprofitable
to require proof”, wala kay ginansyahon kung mangayo kag
proweba aning butanga.
Example,
Anybody here not from Davao? (Mati) Anybody here born
and raised in Davao? (GSIS Matina)
I’d like to ask the both of you, where is Claveria St?
(Everyone knows)
Do you know that officially there is no Claveria St, it is CM
Recto. Yet we all know where it is. At the same time that
there is no Uyanguren St (where DCLA is), that is Ramon
Magsaysay St.
But why is it that everybody knows about it?
It’s because it is one of common and general knowledge that
it is unprofitable to require proof that Claveria St and CM
Recto St are not the same. Wala kay maginansya kung
imung i argue nga dili sila one and the same, because they
are one and the same.
Let’s go to this case; do you know who the front guy of this
Magdalo group is? It’s your favourite guy in the world,
Senator Antonio Trillanes. He is one who came into public
lime light because of what happen years ago on what is
called, Oakwood Mutiny.
MAGDALO PARA SA PAGBABAGO VS COMELEC
(2012)
FACTS: Years after the Oakwood mutiny, Magdalo filed
an application for the registration as a political regional
party with the Comelec for the May 10, 2010 national and
local elections. Comelec denied the application. Why? (1) It
took judicial notice of the fact that Magdalo was the one
responsible for the Oakwood Mutiny. (2) It employed
violence and unlawful means to achieve their goals in the
process defying the laws.
Magdalo contended that Comelec could not take judicial
notice of those facts, that comelec committed grave abuse
of discretion in denying their registration since it based not
on the basis of facts or reliable records of facts but on mere
speculation and conjectures.
ISSUE: Was the Comelec correct in taking judicial notice,
without requiring proof, of the fact that Magdalo a non-
registrable political entity and therefore could not be given
status as a registered political party
RULING: YES. Comelec is correct in taking judicial notice
of the disqualification of the Magdalo
This Court has, in a string of cases, already taken judicial
notice of the factual circumstances surrounding the
Oakwood standoff. That the Oakwood incident was
widely known and extensively covered by the media made
it a proper subject of judicial notice.
Thus, the COMELEC did not commit grave abuse of
discretion when it treated these facts as public
knowledge, and took cognizance thereof without
requiring the introduction and reception of evidence
thereon.
Ultimately, they wanted the President and the top officials
of the AFP and PNP to resign. To achieve these goals,
Magdalo opted to seize a hotel occupied by citizens,
marched in the premises with complete gear, ammunitions
and plant explosives in the building. These brash methods
used by the Magdalo to air its grievances constituted clear
acts of violence.
What is this judicial notice that we are talking about here?
Definitely, it is not one which falls under the realm of
mandatory judicial notice. No, it does not constitute a
mandatory nature of judicial notice.
Rather, it falls under Section 2. Its upon the discretion of
the tribunal to treat a certain fact as admissible on the
ground that it is of common and general knowledge
unprofitable to require proof. Discretion sa Comelec,
whether or not taking judicial notice of the particular fact
and so denying the application of the registration of
Magdalo.
However, the SC also took judicial notice of the grant of
amnesty in favor of the soldiers. If you remember in the case
of Casido, there is a huge difference between pardon and
amnesty. Remember that pardon is a private act of the Chief
Executive of granting clemency to the convicted offender.
But when you talk about amnesty, it is a public act with the
concurrence of the Congress which the court should take
judicial notice of.
The SC said: However, in view of the subsequent amnesty
granted in favor of the members of MAGDALO, the events
that transpired during the Oakwood incident can no longer
be interpreted as acts of violence in the context of the
disqualifications from party registration.
So this is the way we are as Filipinos, we elected him as a
Senator. Nag mutiny na nga. Look what he’s doing now
against this Duterte administration that we belong in. Show
of hands, pogi ba si Trillanes?
STATE PROSECUTORS VS. MURO talks about foreign
exchange restriction where you’re not supposed to carry so
much dollar currencies. The judge dismissed 11 cases
against Imelda Marcos for violation of central bank
restrictions. The dismissal was based solely on newspaper
accounts of lifting of foreign exchange restrictions.
So, cases where pending and here comes the judge
advanced sya mag huna huna. He thought they’re going to
lift it anyway, so he dismissed the cases. So it __ the
prosecutor saying, “Is it official”?
The SC said it’s wrong. 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. .
Jurisprudence dictates that judicial notice cannot be taken
of a statute before it becomes effective. The reason is
23
 EVIDENCE
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Transcription based on the Lectures of
Atty. Jess Zachael Espejo
simple. A law which is not yet in force and hence, still
inexistent, cannot be of common knowledge capable of
ready and unquestionable demonstration, which is one of
the requirements before a court can take judicial notice of
a fact.
STATE PROSECUTORS VS. MURO (1994)
(from 2016 TSN)
FACTS:
On August 13, 1992, respondent judge issued an Order
dismissing eleven (11) cases. The Judge issued his Order
solely on the basis of newspaper reports (August 11, 1992
issues of the Philippine Daily Inquirer and the Daily Globe)
concerning the announcement on August 10, 1992 by the
President of the Philippines of the lifting by the government
of all foreign exchange restrictions and the arrival at such
decision by the Monetary Board as per statement of Central
Bank Governor Jose Cuisia
ISSUE:
W/N the Judge was correct in taking judicial notice of the
supposed lifting of foreign exchange controls which
appeared in a newspaper.
RULING:
NO. 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 provincial 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.
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
demonstration. 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. Respondent judge, in the guise
of exercising discretion and on the basis of a mere
newspaper account which is sometimes even referred to as
hearsay evidence twice removed, took judicial notice of the
supposed lifting o foreign exchange controls, a matter which
was not and cannot be considered of common knowledge or
of general notoriety. Worse, he took cognizance of an
administrative regulation which was not yet in force when
the order of dismissal was issued. Jurisprudence dictates
that judicial notice cannot be taken of a statute before it
becomes effective. The reason is simple. A law which is
not yet in force and hence, still inexistent, cannot be of
common knowledge capable of ready and unquestionable
demonstration, which is one of the requirements before a
court can take judicial notice of a fact.
(Recit and on why it is helpful to memorize)
Dili muundang ang huwes sa imoha ug muingon nga “naa
kay objection?”
Remember that if you fail to object in court because you
hesitated, the objection is already waived. Every
exclusionary rule, you have to remember, is one that can
always be waived by your failure to seasonably object. You
have to be quick. You have to be quick on your toes; the law
should be at your fingertips ready for it to be called upon
whenever you need it. That is when you are already in court
and there’s no benefit of the Internet to..unsa na gani to na
rule. So there is method to this menace. You will know that
when you take the bar exams.
Section 3. Judicial notice, when hearing necessary. —
During the trial, the court, on its own initiative, or on
request of a party, may announce its intention to take
judicial notice of any matter and allow the parties to be
heard thereon.
After the trial, and before judgment or on appeal, the proper
court, on its own initiative or on request of a party, may
take judicial notice of any matter and allow the parties to
be heard thereon if such matter is decisive of a material
issue in the case. (n)
Let’s go over to the different types of judicial notice.
- Mandatory judicial notice
- Discretionary judicial notice
- Judicial notice, when hearing necessary
Assume that you are the judge, the tribunal and you are
presented with the fact and all that you have to do is
determine whether it falls within the realm of judicial
notice.
Why? Because you would want to know if maybe there is no
need to prove this so trial might be hasten a little bit if you
no longer require the parties to prove a particular fact.
If you’re the judge, what are you going to do? Refer it first
to Section 1. Is it an object of mandatory judicial notice such
that no proof is already required? Me as judge, have to
accept it and no longer require proof of it because it falls
under Section 1.
Or if it doesn’t fall under Section 1, it might fall under
Section 2.
JULY 11, 2018 25:01 – 55:00 - Kemarie L. Manligoy
Is it an object of mandatory judicial notice such that no
proof is required? Me, as judge, would have to accept it and
not require proof of it because it falls under Section 1 or if it
does not fall under Section 1, it might fall under Section 2
and you’ve memorized Section 2 and you know the
requisites. The matter must be one of common or general
knowledge. Does it fall within Section 2?
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 EVIDENCE
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Transcription based on the Lectures of
Atty. Jess Zachael Espejo
Now, failure of a particular fact to satisfy all the
requirements under Section 2 might be under Section 3
because it could be the fact that maybe it’s quite known but
is it commonly or generally known? Is there anything to be
claimed by requiring proof of such a fact? oKay? So, if it
does not fall under Section 1 and it doesn’t fall as well to
Section 2, probably, there might be reason to take judicial
notice of it and apply Section 3. So, the court in its own
initiative or upon request of a party can actually announce
its intention to take judicial notice of a fact requiring the
parties to be heard thereof.
Naay hearing and to my mind, that is repugnant to the
concept in nature of judicial notice by itself. Ngano? Very
simple. When you take judicial notice, what do you do? You
don’t require proof anymore, right? Right? You are not
going to tell the parties, okay, “here’s a particular fact. You
submitted it, now prove it!” You don’t require the party to
prove it anymore. How do you prove it? By presenting
evidence. There’s no hearing when it comes to judicial
notice but when it comes to Section 3, it’s precisely the
opposite of that.
Take note that judicial notice is taken of a fact only after the
parties are heard of the issue of whether or not the court
should take judicial notice. So, the parties have to convince
the court that “yes judge, you have to take judicial notice”
and the other party would also say “No, it’s not a matter of
common and general knowledge. So, what the judge would
do, therefore, to encourage the parties to just stipulate.
Admit nalang if anybody want to admit the existence of a
particular fact to be true. But if the parties do not stipulate,
then the court should now conduct a hearing on the matter
under the same procedures as hearings on motions and oral
arguments. And I am sure that you have discussed the
requirements of hearings, motions in your civil procedure
and one of those requirements would be “unsay dapat
pakapin sa isa ka motion”. So, accompanied by supporting
affidavits and other papers.
Supporting affidavits is what? Documentary evidence or
testimonial evidence? Unsa gani na? Affidavits?
Testimonial, right? Other papers, documentary evidence.
So, you are presenting evidence actually. Is not a fact that
judicial notice dispenses with evidence and now Section 3 is
telling you that “okay, I might take judicial notice if I am the
judge but you have to support it with affidavits and other
papers.” Asa ang judicial notice diha? Diba presentation of
evidence na na siya? It’s precisely it. It is repugnant to the
principle of judicial notice when you require the parties to
be heard. Well, that’s my opinion anyway.
What else is repugnant to the concept of judicial notice?
Autoptic reference.
When you say autoptic reference, for example, appearance
or physical condition is admissible in court as object
evidence, the same being addressed to the senses of the
court. And when an object is relevant to the fact in issue, it
may be exhibited to or examined or viewed by the Court.
So now, you are asking the Court because you have there
the victim for example, in a rape case, a minor girl. And
then you are asking the court to say, “Your honor, can you
state judicial notice of the fact that the victim here, the
private complainant, is a minor because of her appearance.”
Can the Court take judicial notice of that? The court in
considering whether or not to take judicial notice, what will
it do? The court will have to look at the victim. Is the victim
really a minor by her looks? And when the court does that?
What is the court doing? It’s receiving. It’s using its senses
and in so doing it is actually conducting a reception of
evidence which is again repugnant to the concept of judicial
notice.
When I ask you, how old I am, so, kung isipun nimo, when
you look at the person to determine his age, are you taking
judicial notice or not? NO. You are conducting a reception
of evidence and therefore, the Court cannot take judicial
notice of age as evidence by looking at person’s appearance.
So, when the trier of facts observes the appearance of a
person to ascertain his or her age, it’s not taking judicial
notice of such fact. Rather he is conducting an examination
or reception of the evidence, the evidence being the
appearance of the person. Such a process militates against
the very concept of judicial notice, the object of which is to
do away with the presentation of evidence.
You need to read this case, Landbank vs Wycoco, January
30, 2004 where the Supreme Court said that in determining
just compensation, the courts cannot simply take judicial
notice of the prevailing market value of agricultural lands.
Let’s say for example, it’s land expropriated, subjected to
coverage of the Comprehensive Agrarian Reform Law, the
Court cannot just take judicial notice that agricultural lands
on these areas are valued this way. No! There has to be a
hearing being conducted and Landbank in that hearing is an
indispensable party. That’s what Landbank vs Wycoco is all
about.
To my mind again, repugnant gihapon na siya sa concept of
judicial notice.
J
UDICIAL ADMISSIONS
Now, let’s go to judicial admissions.
Section 4. Judicial admissions - An admission, verbal or
written, made by a 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 no such admission was made.
Just to define judicial admission or an admission en judicio,
it is a deliberate, clear, unequivocal statement by a party
about concrete facts within that party’s knowledge. It is a
formal concession in the pleadings or stipulations by a party
or counsel that is binding on the party making them.
Although a judicial admission is not itself evidence, it has
the effect of withdrawing a fact from contention.
Now, when is a fact in contention? Only if a plaintiff and the
defendant don’t agree about it. None of them would
concede. According to A, it is true; according to B, it’s false.
So, they are in contention. Naga-argue pa sila. But if A for
example admits, then it is withdrawn from contention. B, for
that point, has already won. For that point because A has
conceded a fact. B, has already proven the point, right? And
it has the effect of no longer requiring proof of a particular
fact. The latin maxim to remember would be (latin)
admission during trial is stronger than all proof. “You don’t
have to memorize the latin maxim.
Sources of Judicial Admissions
What are the sources of judicial admissions? In Spouses
Binarao vs Plus Builders Incorporated, a party may make
judicial admissions in the pleadings during trial, either by
verbal or written manifestations or stipulations or in other
stages of the judicial proceedings, admissions can be
expressed like verbal or written.
It was repeated in the case of Adolfo vs Adolfo, March 18,
2015, where you are also to take note the difference between
judgment on the pleadings and summary judgment. The
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Transcription based on the Lectures of
Atty. Jess Zachael Espejo
difference between “it tenders no issue” and “no genuine
issue”. I’m sure you know that from your Civil Procedure.
Now, admissions can be made on the pleadings.
Admissions can be made both in the initiatory and
responsive pleadings. For example, in the complaint, the
defendant Geronimo contracted a loan with the plaintiff
Sarah. While defendant had paid the first five installments,
all the succeeding installments remained unpaid.
So, in a complete answer, pwede kang mag-admit. What are
you admitting here? That kadtong first five installments,
nabayaran na nimo and for the succeeding installments,
wala pa. Okay? So, what will be the effect of that upon the
defendant when he makes his answer? He doesn’t have to
refute anymore. It’s already admitted. He doesn’t have to
prove anymore that he has paid the first five installments
and so ang remaining installments nalang ang dapat niya i-
refute or to defend against.
What about in an answer? The defendant admits the
allegations contained in paragraph 1 and 2 of the complaint
in as much as they merely allege the personal circumstances
and capacities of the parties.
Usually man gud in an answer or in a complaint, paragraph
1 would state the personal circumstances of the plaintiff.
Plaintiff, of legal age, Filipino, etc. blah blah , where he may
be served with summons, notices of the adverse party and
the honorable court. Paragraph 2 would be “Defendant, of
legal age, Filipino, etc. blah blah blah and then address
where he may be served with summons and orders from the
court.” Inana lang na siya.
So usually, the 1st paragraph in an answer would merely be
an admission. What’s the effect of that? What would be the
effect if the defendant admits the allegations contained in
paragraphs 1 and 2, the personal circumstances of the
parties. So, he is admitting that the party is of legal age, and
presumably has the capacity to sue based on age because
otherwise, he would qualify his admission by saying that,
he may be of legal age but because he was already convicted
and imposed the penalty of civil interdiction, he is not in full
possession of his civil personality. Pwede ka magqualify but
he did not do that. So it means that the capacity to sue of the
plaintiff has already been admitted. He cannot anymore
contradict that in the future and more so, the defendant by
admitting his own personal circumstances cannot later on
say, “Oi, there was improper service of summons upon my
person because it was served at the wrong address.” You
cannot say that anymore because you already admitted your
personal circumstances which includes his address where
he can be served with summons and notices coming from
the honorable court. Diba? That’s the effect of an admission.
It may be …but if you look at it, there’s a lot of legal
ramifications.
Another example, Rule 8 Section 8, how do you contend
actionable document? What is an actionable document?
Actionable document is the document which is the very
basis of a party’s cause of action or defense.
An example there would be a promissory note. What’s your
cause of action? To collect an unpaid loan. What’s your
actionable document? Your promissory note. So, how do
you plead it? You have two options right? You can either
retype it in full or you can attach it and make reference to it.
That’s how you plean an actionable document and you have
to plead it under oath. Now, how do you contest it?
The genuineness and due execution of the instrument shall
be deemed admitted unless the adverse party under oath
specifically denies them and sets forth, what he claims to be
the facts but the requirement of an oath does not apply
where the adverse party does not appear to be a party to the
instrument or when compliance to an order for the
inspection of the instrument is refused.
What do I want to point out in Rule 8, Section 8? You have
to contest an actionable document a certain way in the same
vein that you can only plead an actionable document a
certain way. Now, what will be the effect if you fail to
contest an actionable document a certain way? There is an
implied admission of the genuineness and due execution
and therefore, if you fail to follow the requirements of Rule
8, Section 8, what will happen? You can no longer contest or
say that “kining document na ni is fake or that it was
executed wrong or infirm in form because you already
admitted the genuineness and due execution of the
instrument.
Now, diba sa Civil Procedure, there are only seven (7)
pleadings allowed? Ordinarily, three lang jud na –
complaint, answer and reply. You file a complaint, you
submit to the jurisdiction of the court. And then when is the
defendant required to file an answer? Upon receipt of
summons. And then after that, what happens? The plaintiff,
after receiving an answer, is he mandated to file a reply?
NO because a reply is merely optional that if you fail to file
a reply, all the new matters alleged in the answer are
deemed automatically admitted.
Here’s one case, Cassette Realty vs Philbanking
Corporation, September 14, 2007, where the Supreme Court
said, since the respondent failed to file a reply, the
respondent in effect admitted the genuineness and due
execution of the said documents. Why? Because of Rule 129
Section 4, it is considered a judicial admission. Huh? Diba
optional lang man ang filing of a reply? Isn’t it that the filing
of a reply is merely optional? So, why? Let’s go back to
Section 10 on kinds of pleadings. The definition of a
pleading or the function of which is to deny or allege facts
in denial or avoidance of new matters alleged by way of
defense in the answer and thereby join or make issue as to
such matters. If the party does not file such reply, all the
new matters alleged in the answer are deemed controverted.
So, again there’s that effect of automatic admission.
Nakalimtan na ba sa Supreme Court that the filing of a reply
is merely optional? NO! Section 8 specifically applies to
actions or defenses founded upon a written instrument and
provides the manner denying it. It’s more controlling than
Rule 6 Section 10, which merely provides the effect of failure
to file a reply. Thus where the defense in the answer is
based on actionable document, a reply specifically denying
under oath must be made. Otherwise the genuineness and
due execution of the document will be deemed admitted.
So here in Cassette Realty vs PhilBanking Corporation,
where the Supreme Court said that the filing of a reply is
mandatory. If you want to avoid the effect of implied or
automatic admission of the genuineness and due execution
of an actionable document.
What else? Rule 8, Section 11. Material averments in a
complaint other than those to the amount of unliquidated
damages shall be deemed admitted when not specifically
denied. Meaning? General denial and remember that under
the rule on pleadings, general denial is an admission. It
constitutes an admission.
So, what was I forced to do considering that after a reply,
there was supposed to be no more pleadings allowed? How
do you contest that? How do you now counter-act upon this
mind-conditioning upon the judge? They say that the
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Transcription based on the Lectures of
Atty. Jess Zachael Espejo
proper pleading to file would be a rejoinder to the reply.
But, I don’t believe in a rejoinder. Wala mana sa Rules of
Court ang rejoinder. So, what did I file? A comment to the
reply because a comment can always be allowed. It’s like a
manifestation before the court.
What else? Effects of amendments to pleadings, if you
recall? An amended pleading supersedes the pleading that
it amends. However, admissions in superseded pleadings
may be received in evidence against the pleader and claims
and defenses alleged therein not incorporated in the
amended pleading shall be deemed waived. So, diba
remember there’s a big difference between amended
pleadings and supplemental pleadings? When you talk of
supplemental pleadings, they exist side by side with the
pleading that they supplement. When you talk about
amended pleadings, it supersedes, it abrogates the pleading
which it amends.
So let’s say for example you made an admission in your
answer but you amended your pleading as a matter of right,
when can you do it? Within the period for filing a reply for
as long as no reply has been served upon the defendant.
You can amend your answer as a matter of right. Right?
Now, you changed your theory of the case. So before, you
admitted that Yes, there was a debt that I contracted.
Nangutang ko sa plaintiff but he already condoned it. So,
you had your original answer and now, because
amendment is still a matter of right, no reply has been filed,
you changed your theory. You changed your defense. Now,
your defense is “I don’t know the plaintiff. I have not
contracted a loan with the plaintiff.”
July 11, 2018 55:01 Lara Delos Santos
Who in the blue hell is the plaintiff? So now it’s complete
denial. So what happens to the defenses that he made?
The admissions that he made in his original answer are also
superseded. But, take note of this effect, “admissions made
in superseded pleadings may be received in evidence
against the pleader.
So they may no longer be considered as judicial admissions
but they are now, extra-judicial admissions that can be
admitted in court, provided, they are properly pleaded and
proved by the adverse party. Kinahanglan nimo iplead and
iprove siya.
VERBAL OR WRITTEN ADMISSIONS
Now what about during trial?
It could be verbal or written.
A verbal judicial admission could take the form of a
manifestation or testimony in court.
A written judicial admission could be in the form of
motions, written manifestations, briefs, memoranda,
affidavits, and even in the submission in answer to a request
for admission.
ADMISSIONS IN OTHER STAGES OF THE CASE
1. Pre-trial where admissions and stipulations of facts are
mandatory subjects of pre trial
2. Availment of discovery procedures before trial, or
pending appeal such as:
•Depositions
•Request for admission
•Physical or Mental examination of persons (modes of
discovery)
Depositions cannot serve as a substitute for testimony in
court. The deponent must be actually brought again in
court, as a general rule, for his testimony to be admitted. In
effect, he has to re-testify. But be mindful of the instances
where the deposition itself is considered as testimony.
CONSTANTINO VS. HEIRS OF CONSTANTINO
Judicial admissions are legally binding on the party
making the admissions. Pre-trial admission in civil cases is
one of the instances of judicial admissions explicitly
provided for under Section 7, Rule 18 of the Rules of Court,
which mandates that the contents of the pre-trial order
shall control the subsequent course of the action, thereby,
defining and limiting the issues to be tried.
So if you make confessions during pre-trial, that’s very
good. Why? Because the court doesn’t have to expect proof
of a matter that has already been admitted. And remember
the effect as well that –
Admissions made are binding upon the parties who made
them.
Now take note that, a party who makes a judicial admission,
you cannot later on challenge that cause that constitutes as a
waiver of proof. Your ability to prove or disprove
something is waived. Production of evidence is dispensed
with. A judicial admission also removes an admitted fact
from the field of controversy.
In other words, what’s the effect of the rule?
Judicial admissions are conclusive on the party making
them. When you make an admission, you cannot refute that
admission anymore,
Let’s look at an example here:
A plaintiff sued the defendant for collection of sum of
money. The defendant denies the existence of the debt and
counters that it was her deceased parents who owed the
plaintiff money when they were alive. Therefore, according
to the defendant, what the plaintiff should have done is to
sue the estate of her parents rather than sue her in her
personal capacity as heir.
However, during the trial, the following cross examine took
place:
Lawyer: you also know that the respondent was into
lending?
Accused: Yes, madame.
Lawyer: Because she is in lending, you have borrowed
money also?
Accused: Yes, madame.
Lawyer: Separate from your father?
Accused: Yes, madame.
Lawyer: You borrowed money from the respondent
separate from your father prior to his death?
Accused: Yes, madame.
Unsa gani iyang defense? Wala siya nangutang. Ang
nangutang kay iyang parents. Nut what do youcall that?
That is an admission and therefore you are not allowed to
contradict.
ODIAMAR VS VALENCIA
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Transcription based on the Lectures of
Atty. Jess Zachael Espejo
Having admitted that she obtained loans from respondent
without showing that the same had already been paid or
otherwise extinguished, petitioner cannot now aver
otherwise.
It is settled that judicial admissions made by the parties in
the pleadings or in the course of the trial or other
proceedings in the same case are conclusive and do not
require further evidence to prove them. They are legally
binding on the party making it, except when it is shown
that they have been made through palpable mistake or that
no such admission was actually made.
SANTIAGO VS DELOS SANTOS
An admission cannot be controverted by the party making such
admission and are conclusive as to him and that all proofs submitted by
him contrary thereto or inconsistent therewith shall be ignored whether
objection is interposed.
That is why I told you, admission during trial is stronger
than all proofs.
Take note of the requirement that for it to qualify as a
judicial admission, it must be made in the same case.
REPUBLIC GLASS VS QUA
To constitute a judicial admission, it must be made in the
same case in which it is offered. If made in another case or
court, the fact of such admission must be proved as in the
case of any other fact. Although, if made in a judicial
proceeding, it is entitled to greater weight.
Let’s say for example:
In Branch 1, you have a case between A and B. In Branch 2,
you also have another case also between A & B. In the case
in Branch 1, A made an admission against his interest to
favour B. Can B use that in his case in Branch 2?
He can use it in Branch 2 but not in the concept of judicial
admission.
What will you do if you are the lawyer of B in Branch 2 and
you want to use the admission of A in Branch 1?
Secure a copy of the transcripts of stenographic notes where
your opponent made the admission. Plead it and prove it
before Branch 2. It is an extrajudicial admission in so far as
Branch 2 is concerned. It can only be considered as judicial
admission if you are talking about Branch 1. Get a piece and
prove it.
Do you need to present the staff who made the stenographic
notes?
No. Because of presumption in the regularity of transcripts
of stenographic notes. In effect, it’s self-authenticating. It is
also strong proof that it was made in a judicial proceeding.
EXCEPTIONS:
Admissions may be contradicted only by showing that it
was made through palpable mistake or that no such
admission was made.
“MADE THROUGH PALPABLE MISTAKE”
What do you mean by palpable? It means it is obvious to
everybody, to both sides. Like the plaintiff would not
concede it as an admission, the defendant would not
concede it as an admission, the judge too could see that
there was really no judicial admission made.
Take note that under the OLD RULES OF EVIDENCE, this
is the only exception to the rule that a judicial admission
binds the parties making them.
ATLAS CONSOLIDATED MINING VS CIR
In the present case, the supposed mistake made by the
counsel of petitioner corporation is one of law, for it was
grounded on his interpretation and evaluation that
Revenue Regulations No. 3-88 and CTA Circular No. 1-95,
as amended, did not apply to his client's cases and that
there was no need to comply with the documentary
requirements set forth therein.
And although the counsel of petitioner corporation
advocated an erroneous legal position, the effects thereof,
which did not amount to a deprivation of his client's right
to be heard, must bind petitioner corporation. The question
is not whether petitioner corporation succeeded in
establishing its interests, but whether it had the
opportunity to present its side.
“NO SUCH ADMISSION WAS MADE”
Meaning it’s just that the other party is saying that you have
made an admission. Like my old case before, the counsel
kept saying “Thank you for admitting…. Thank you for
admitting…” when in fact, I didn’t. So what doctrine is that?
The buot buot doctrine. LOL So what this is is that you are
now saying I did not make an admission or that the
statement was taken out of context or not in the sense that
the admission is made to appear as in the case of…
ATILLO III VS CA
If a party invokes an admission of an adverse party but
cites the admission out of context, then the one making the
admission may show that he made no show admission or
that the admission was taken out of context. This may be
interpreted to mean not in the sense in which the
admission is made to appear that is the reason for the
codifier “such”.
Take note that an admission made by the counsel is binding
upon the client. So like in my example earlier, my fellow
officemate, where to be safe, he would not admit anything,
even the name of his client. Why is that? Because anything
that you say would bind the client. So you have to proceed
with caution every time. And when you make an admission
of something, consult your client first. Ask him if it is okay if
we admitted this because if we do, these are the legal
consequences.
This for me is an important case: FULE DOCTRINE
FULE VS CA
Pre-Trial is mandatory also in mandatory in criminal cases.
So in this case what happened here was of course, stipulation
of facts. Then what if the accuse admits or stipulates as to the
existence of certain facts and the effect of that would be for
him to make a confession or an admission of his guilt in the
criminal case. Can he be convicted based on confessions or
admission? Of course, you can. In fact, a mere extrajudicial
admission together with the corpus delicti would be
sufficient to warrant a conviction.
What happened here was, there was a pre-trial agreement.
In a criminal case, you are allowed to secure from the
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Transcription based on the Lectures of
Atty. Jess Zachael Espejo

accused a confession pursuant for example to a Plea establish the guilt of the accused beyond reasonable doubt
Bargaining Agreement. Let’s say you committed serious even without the unsigned confession.
physical injuries and ingon ani ang penalty. But, if you
plead guilty tp slight physical injuries or maltreatment only
then, ito nalang. Plead guilty ka nalang para di na tayo mag
trial. That’s plea bargainin. Now if he agrees, confess to the
commission of slight physical injuries, in effect, he is free to
go if he is a first time offender. Pwede ka ma place under
probation or ma-fine because it is a very light offense. Now,
if that was made durng the pre-trial conference in a criminal
case, it has to be signed by the accused and his counsel
because if there is no signature of the accused and his
counsel, the n the stipulation of facts, the confession made
by the accused, becomes inadmissible. That’s the Fule
Doctrine.

It has been articulated more properly in Rule 118 Section 2.

RULE 118, Section 2.Pre-trial agreement. —

All agreements or admissions made or entered during the

pre-trial conference shall be reduced in writing and signed
by the accused and counsel, otherwise, they cannot be used
against the accused. The agreements covering the matters
referred to in section 1 of this Rule shall be approved by
the court. (Sec. 4, cir. 38-98)

Precisely what happened in Fule. The Court has to see if

gipirmahan ba gyud o wala. And now the court will have
the ability to call for example, the lawyer of the accused. Did
you really mean to make that confession. That’s because of
Fule. So when it reached the SC, the court said it is
inadmissible. Whatever he confessed to during the pre trial
conference which was reduced in the pre trial agreement
but was not signed by the accused and his counsel, it is
inadmissible. Therefore, accused was acquitted despite the
fact that during pre trial, he actually made a confession. So
what did the prosecution do? Because nag confess, they
rested its case. Admission made in trial is greater than all
proofs. Ngano pa ko magpresent ug evidence. Sc said:
acquitted.

Here’s a similar case, King vs People. You have to compare

what happened in King and in Fule.

So what happened in King? It’s a BP 22 case. Same thing

happened here. They had a pre trial conference. The accused
admitted to the signing of worthless checks. The pre trial
again was not signed by the accused and his counsel as
required in then Sec. 4 Rule 118. And so, citing Fule vs CA,
Betty King argues that there is no basis for conviction.
Inadmissible daw. The SC here ruled: True. A pretrial
agreement not signed by the accused and counsel is
inadmissible. However, the conviction was based not on the
agreement but on the documents presented as evidence
during the trial, all of which was presented without any
objection from her counsel.

General Rule: Fule. Inadmissible because it was unsigned,

But what the prosecution did was to submit the documents

for the consideration of the court. All documents that would
create fact of guilt beyond reasonable doubt. So these were
admitted by the court. And the counsel of the accused failed
to object. What happens if you fail to object? Your client
loses.

So what’s the difference between King and Fule?

In Fule, that was all the evidence of the prosecution. But in

King, the documents that were presented without any
objection from the accused’s counsel already sufficed to

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Transcription based on the Lectures of
Atty. Jess Zachael Espejo
July 18, 2018 1:00:00 – 16:00:00 (Alexander Abonado)E
RULE 130
RULES OF ADMISSIBILITY
So we are going to talk about Rule 130 already, admissibility
of objects and documents.
Let’s talk about sections 1 & 2 first. Take note we classified
evidence before in three, namely: object, documentary and
testimonial evidence.
When you talk about object or real evidence, you are talking
about evidence that is addressed to the senses of the court.
These are evidence which are exhibited to, examined or
viewed by the court.
Take note that while the law talks about being viewed by
the court ang object evidence. We are talking here about all
the senses of the court. Whatever the court sees, like a scar
that is visible, let’s say sa face sa usa ka victim. Whatever
the court hears; for example, a taped blackmail call. That
would be appreciated by the courts sense of hearing.
Or sense of taste; like cocaine, and the court is not convinced
that it’s cocaine, so the court will taste. Sense of touch;
example, girl was raped because she has big jugs, so the
court will touch to determine if she really has big jugs.
(LOL) Sense of smell; Indians, mao ra jud na akong
maingnon sa inyo.
We are talking here about all of the senses of the court and
that is in the appreciation of object evidence the court uses
the senses of sight, touch, hearing, taste and smell.
Take note that it is called real evidence not to contrast it
with real and fake. But rather real because it comes from the
term res, or the thing. Res ipsa loquitur. The thing speaks
for itself.
So its res. It’s an object. It’s the thing or the object that is
addressed to the senses of the court.
We have also discussed from the case of People v. Lavapie,
the different types of evidence and what appears to be a
hierarchy, a preference among the different types of
evidence and which one the court actually prefers.
So the court actually prefers object, real or physical evidence
as evidence of the highest order because it speaks more
eloquently than a hundred witnesses.
Then later on the court also made the preference between
testimonial and documentary evidence in the case of GSIS v.
CA.
Noted that between testimonial and documentary evidence
there is really very little room for choice. But between the
two it is documentary that prevails over testimonial.
Between oral and written testimony, mas naay preference
ang oral testimony in court because there is flexibility on the
part of the questioner to adapt his questions to elicit the
truth and in order to ferret out the certain answer.
Informally there is a fourth class of evidence recognized by
the rules, we call that demonstrative evidence or evidence in
the form of objects that have for themselves no probative
value but is used to illustrate and clarify a factual matter or
issue.
Demonstrative evidence as evidence is not prohibited,
although not specifically mentioned in the rules of court. In
appreciating Demonstrative evidence the court uses the
same five senses. But more importantly, applies intelligence
to draw conclusions or inferences from the objects
presented. Thus for Demonstrative evidence what is
important is not the object but the information that the
objects create.
Recall my example on Demonstrative evidence; I call that
the case of the flying man. Nabangaan siyag motor and
according to his testimony, he flew to a distance of 50
meters. And so it’s quite improbable for somebody na
nabangaan ug motor ug nilupad ug 50 meters. So in order
for me to impress upon the mind of the court that my
witness is not lying/sane.
I had to resort to a rudimentary diagram, and asked the
witness to point that if diri ka nabangaan asa man ka nakit-
an pagkahuman nimo nalagpot.
By pointing, we were able to estimate the distance of the
actual place of bumping and the place where he was found.
And I was able to create that idea upon the court, that ing-
ato ang kakusog sa impact. Rather than the completely
incredible and almost miraculous 50m, which is again very
very far away.
How do we distinguish between real and demonstrative
evidence?
Real evidence is a tangible object that actually takes some
role in the matter that gave rise to the litigation. Like a gun
or a knife. While a Demonstrative evidence is tangible
evidence that merely illustrates a matter of importance in
the litigation.
Real evidence intends to prove that the object is used in the
underlying event. The knife that was used to stab the
complainant, fortunately the complainant survived.
Demonstrative evidence on the other hand, intends to show
that the demonstrative object fairly represents or illustrates
what it is alleged to be illustrated.
Note that with respect to real evidence, the evidence is the
object itself. But when you talk about Demonstrative
evidence, although using an object to illustrate a matter
before the court, the evidence to be considered there is the
testimony as elicited by the demonstrative evidence.
Like in a map or a diagram or a chart. So what is the
evidence that the court will consider there? It’s the
testimony that comes from the demonstrative object.
Let’s go to section 1. What is object evidence?
Section 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
The court also calls real or object evidence as Autoptic
Preference, it simply means, a tribunals self-perception or
autopsy of the thing itself.
In the case of Balingit v. CA (Feb. 9, 2007) what the court
was still discussing would be kana bitaw mga election rules
that I suppose would no longer or no longer applies right
now considering that we change into automated elections.
But before you have these rules on the appreciation of
ballots, which to my mind would no longer bear any
importance in elections where mag shading na lang ta. But
sa mga dili pa automated/ mag suwat gihapon ka, the dem
sonams rule (sounds like) mag apply gihapon na siya.
Autoptic means seeing with one’s own eyes. Coming from
the words “auto” and “optic” meaning self and then
pertaining to the eyes or belonging to or connected with
personal observation which is related to the term autopsy.
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Transcription based on the Lectures of
Atty. Jess Zachael Espejo
One case that you really need to be familiar with, not
because it’s useful only in my subject but because it’s useful
also sa subject ni madam: Calde v. CA
It’s a succession case. June 7, 1994.
Here there is a notarial will. And remember that in a
notarial will there is a requirement that witnesses should
sign in the presence of one another. Here 2 of the witnesses
testified that only 1 pen was used in the signing of the will.
There’s also no mention that the pen was that hybrid pen
which has all the colors.
Now only 1 pen was used, but how come, the court noted,
by using autoptic preference, by using self-observation that
there were 2 colors of pen used. There’s black and then
there’s blue.
According to the testimony of the witnesses – 1 pen was
used. According to autoptic preference – there were 2 pens,
black and blue. What would prevail?
According to the court, apparently because there were 2
colors of pen here, the notarial will was not subscribed and
attested by the instrumental witnesses during the execution
(?)
The signatures of some of the attesting witnesses were
written in blue ink while the others were in black. This
discrepancy was not explained by the petitioner. Nobody of
the 6 witnesses testified that 2 pens were used by the
signatories of the 2 documents. In fact of the petitioner’s
witnesses even testified that only 1 ball pen was used in
signing 2 testamentary documents.
And the SC proceeded now to describe what autoptic
preference is. That the person who is of small height or is of
dark complexion, as to such matters the perception of the
tribunal that the person is small or large or that he has dark
or light complexion is a mode quiet relief which is
independent of any inference from either testimonial or
circumstantial evidence.
It is the tribunal’s self-perception of autopsy of the thing
itself, from the point of view of the litigant party furnishing
the source of relief, it may be termed as autoptic preference.
And in this case the autoptic preference contradicts the
testimonial evidence produced by petitioner. The will and
its codicil upon inspection by respondent show in black and
white or more accurately in black and blue that more than 1
pen was used by the signatories thereto. Thus it was
_____(15:40) nor baseless for the court to disbelieve
petitioner’s claim that both testamentary documents in
question were subscribed to in accordance with the
provisions of article 805 of the civil code.
So the SC was actually saying, “nagpataka mo.”
0:16:01- 0:32:00 (Angel Deiparine)
You did not actually subscribe and attest to the will in one
occasion. Coz you were saying, only one pen was used. But
actually, duha ka pen. So, with that, the will was not
admitted.
Let’s compare that with documents. I’m sure you have
memorized Section 2.
Section 2. Documentary evidence - Documents as evidence
consists of writings or any material containing letters,
words, numbers, figures, symbols or other modes of written
expressions offered as proof of their contents.
Now, what you need to really pay attention to is the last
phrase, “offered as proof of their contents”.
They must be presented into evidence for the consideration
of the court, not to prove that this paper is white in color or
that it is rectangular in shape, but you have to offer it for
what is written on the document. That is what Section 2 is
all about.
With that, I propose to you one thing: A document is not
necessarily paper, and paper can also be treated as object.
Case: The Last Will of Cecil George Harris (Canadian case)
In 1948, around 10 in the morning, Harris accidentally put
his tractor in reverse while making adjustments thereto. The
tractor moved backwards and trapped Harris between the
tractor and another piece of equipment, pinning his left leg
under the xxx. Naipit siya. Harris remained trapped until
10:30 in the evening. So that is, 12 hours already before he
was found by his wife. He was taken to the hospital where
he later died from his injuries.
Some days later, their neighbors, who were surveying the
scene of the incident, noticed an inscription in the tractor
fender which read: “In case I die in this mess, I leave ALL
TO THE WIFE.” Then, he signed it.
The fender was removed from the tractor and was
determined by the court to be a valid holographic will.
Now, that is based on their law because here in the
Philippines it has to be entirely written, dated and signed by
the testator.
It was admitted into probate as a valid holographic will. But
when you talk about wills, diba we have always imagined it
as the expression of the testator’s intent reduced to paper.
How could you imagine a will that is not on paper?
However in the case of Harris’ will, it is not in paper as it
was scratched in a tractor fender yet it was valid. Applying
our own laws on Evidence, an important requirement to
remember is that a document must be offered as proof of its
contents.
Does the law actually distinguish what material in which
the content must be written? Does it matter? IT DOESN’T
MATTER.
The material that contains written expressions does not
have to be papyric in nature, in the same way that objects
can be in the form of paper if it is offered, not as proof of its
contents, but because of its physical attributes. For example,
yellowing on the surface of the paper which proves that it is
an ancient document; very very old document. Or that it is
crumpled, as evidence of the fact that the person who read
it, has his heart broken.
A document does not have to be paper. Paper is not always
a document. It can be an object.
CLASSIFICATIONS OF OBJECT EVIDENCE according to
Moran:
1) Those object evidence which consists in the
exhibition or production of the evidence inside the
courtroom.
An object is brought into the courtroom for the
consideration of the court. Example: Like, the
objects of the crime (i.e. unsa tong gikawat?) or the
means to perpetrate the crime: the murder weapon.
(gun, knife)
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Atty. Jess Zachael Espejo
They are brought into the courtroom because they
are susceptible of manual delivery to the
courtroom. Pwede gunitan ug tanawon sa korte.
2) That which consists in the inspection of the object
outside the courtroom. Like, ocular inspection in a
boundary dispute. Or ocular inspection of a crim
scene.
Atty. JZE example/experience: One of the cases I handled
was this. It’s a case for theft. Unsay gikawat? Mangga. The
complainant was claiming ang gi harvest kuno na manga sa
akong kliyente belonged to him. Our defense was daghan
kayo mig manga na gi harvest, but there’s this one tree, we
admitted, that lies precisely in between the boundary line of
the two properties: one belonging to my client, and one
belonging to the complainant.
What we did is that we asked the court for an ocular
inspection, precisely, to ascertain if the mango tree in
question is really one in the land of complainant or in the
land of my client.
We determined that ¾ of the tree belonged to my client and
¼ of the tree, specifically the one with a branch, was inside
the property of private complainant. Imagine, sa tibook
harvest, theft? Unya, isa ra diay ka branch ang naa sa iya
property?
And so, we conducted an ocular inspection and the court
went to the area. And we determined, based on the mohons,
that the majority of which belonged to my client. We were
able to get an ACQUITTAL because of that. Unya the court
made an estimate kung pila ka manga tong naa sa sanga,
gipabayaran. That’s it. We were able to secure an acquittal
because of that ocular inspection.
It is discretionary upon the court to go to the place where
the object is located, when the object evidence cannot be
brought.
3) Object evidence that which consists in
experimentation. It could be inside the courtroom
or outside the courtroom.
Experimentation in evidence refers to AUTOPTIC
PROFERENCE that requires the manipulation of physical
objects within or without the courtroom to determine the
facts in issue.
Example of inside the courtroom: An accused, a frail and
short individual is charged with murdering Mateo by
repeatedly bashing his head with a sledgehammer. The
defense asked the accused, the short guy, to brandish the
sledgehammer and demonstrate before the court the
physical impossibility of him using it as a murder weapon.
Kay bug-at kaayo. The defense may also invite the court and
the prosecution to similarly manipulate the murder weapon
so that they’d know kung bug-at ba gyud.
What else? Blood sampling inside the courtroom in the
presence of counsel. In the case of People vs Yatar, in open
court, gikwaan ug dugo si Yatar for purpose of DNA
testing.
What about OUTSIDE THE COURT ROOM?
A crime scene re-enactment. In a murder where the accused
contends that the alleged murder weapon retrieved from his
person is defective and is therefore an ineffectual means for
him in committing the crime, the gun can be test-fired
outside the court room, and the court can see for itself kung
muboto ba gyud.
Another case: OJ SIMPSON CASE:
OJ Simpson was accused of killing his wife Nicole Brown.
OJ Simpson married Nicole Brown. The wife was known to
be promiscuous. Eventually, they were estranged from one
another.
What was left in the crime scene were a pair of bloody
gloves. Now a receipt was also found in the house of OJ
Simpson saying that he purchased prior to the crime a glove
similar to the one that is found.
So, there’s this circumstantial proof that if those gloves
belonged to him, he was the one who killed. He was there at
the scene of the crime. If he wore the same gloves, he must
have been the murderer.
The prosecution wanted OJ Simpson to try wearing the
gloves in the courtroom, infront of the jury, to leave the
impression that it fit him. It fit him like a glove. Therefore, it
must have been him.
Lo and behold, when he was finally forced to wear the
glove, it did not fit. They’re small.
The jury acquitted OJ Simpson. So the battle cry of OJ
Simpson’s lawyer here was: IF THE GLOVES DON’T FIT,
YOU MUST ACQUIT.
***then chismis about OJ Simpson re: Chloe Kardasian***
32:01-48:00 (Anton Maligad)
Requisites of Admissibility of OBJECT EVIDENCE:
a. Relevancy to the fact in issue in the case—basic
requirement of relevancy. It must have relationship to
the fact in issue at to induce belief as to its existence or
non-existence. Although the object evidence may not
be directly material to the fact in issue, it can be
considered as a collateral matter. Where it may be
allowed if it tends in any reasonable degree to
establish the probability or improbability of the fact in
issue.
Class Discussion:
A person’s appearance is relevant and is visible as object
evidence the same being addressed to the senses of the
court.
Q: In relation to the definition of relevancy, “when is
a fact in issue?”
A: When parties do not agree about it.
Example:
In civil cases, A is claiming that B is indebted to him.
B, of course, denies liability. That is a fact in issue
because the parties do not agree about.
In a murder case, the prosecution proposes that the
accused is guilty of the killing the victim. But the
accused is claiming that he is innocent. Therefore, the
fact in issue is the innocence of the accused. It is a
matter or fact that is properly in issue in case.
The prosecution proposes, then the accused denies.
There is a conflict as to this fact.
Q: Now, what is the fact in issue of the prosecution
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Transcription based on the Lectures of
Atty. Jess Zachael Espejo
for the valuation of RA 9165 that happens after a buy-
bust operation?
A: The fact in issue for the prosecution is that the
accused is selling drugs as proven by the buy-bust
operation. But, the accused is denying such act.
Therefore, that is the fact in issue.
[People vs. Reyes (1994)]—That the admissibility of
marked money as evidence is governed by Section 1, Rule
130 which provides that when an object is relevant to a fact
in issue it may be exhibited to, examined, or viewed by the
court. A marked money being paid as consideration for the
shabu was found to be relevant to the fact in issue, which is
the selling of drugs.
You need to remember, that in a buy-bust operation
you have to simulate the elements of a contract of
sale.
Elements of a contract of sale:
1. Consent—the meeting of the offer and the
acceptance of the thing/object which is the
cause of the contract;
2. Subject matter—in this case the illegal
drugs;
3. Price certain in money—price is equivalent
which would be the consideration, which is
the marked money.
So there are two objects, which are considered as
object evidence in the prosecution of illegal drugs, by
virtue of a buy-bust operation:
(1) The shabu itself or the illegal drugs; and
(2) Marked money which simulates the
consideration in a perfected contract of sale.
Now take note that object evidence, like any type of
evidence must pass the test of relevancy.
When an object is excluded by the law or these rules,
such as evidence, which is the product of the Fruit of
the Poisonous Tree Doctrine, then the object is
inadmissible.
Fruit of the Poisonous Tree Doctrine vs. Exclusionary
Rule:
The fruit of the Poisonous tree as evidence is only
applicable to derivative evidence.
On the other hand there is an exclusionary rule. An
example would be illegally seized items. For example,
there was no search warrant and the police searched
your residence and then found illegal contraband.
Is that a fruit of the Poisonous Tree? Not yet!
Such is just an application of the exclusionary rule.
That evidence obtained in violation of your right
against illegal searches and seizures are not to be
admitted in evidence.
So what is the fruit of the poisonous tree in that situation?
Let’s say for example, there is already a violation of
the exclusionary rule and by reason of that the accused
was arrested and then at the time that he was arrested
he told the police that he was still hiding drugs
underneath my bed.
After which, the police went on and searched his bed
and indeed drugs were found—but such are
inadmissible. The inadmissibility of such evidence is
what we call the Fruit of the Poisonous Tree Doctrine.
It is not automatic. You have to distinguish between
the Exclusionary Rule and the Fruit of the Poisonous
Tree Doctrine.
The Fruit of the Poisonous Tree must be evidence that
is derived from evidence illegally obtained (the illegal
search and the illegal arrest).
Exclusionary Rule Fruit of the Poisonous
Tree
Evidence originally Derivatives of illegally
obtained seized items
b. Object Evidence must be authenticated—it must be
proven to be what it purports to be.
Class Discussion:
Optic Proference must be relevant and it is
relevant only if it makes a fact of consequence
more or less probable, than the absence of the
optic preference.
Object evidence in itself does not establish the
factum probandum.
There is no factum probandum provable solely
by object evidence.
Example:
A shot B. The possible evidence showing that A
shot B would the CCTV footage.
So the thing speaks for itself that A shot B? NO!
How does that CCTV footage make its way to the
courtroom? It has to be sponsored by testimonial
evidence by a witness.
Therefore, while the CCTV footage clearly
indicates that A killed B, that has to be
authenticated by the credible witness.
So there is this object, which cannot be brought to
the court to be appreciated by such court, unless
a witness testifies about it first.
So that is authentication. The object must be
proven.
It requires that the admission of an object may be
preceded by (testimonial) evidence sufficient to
support the finding that the object in question is
what the proponent claims to be.
Purposes of Authentication:
1.) To prevent the introduction of an object different from
the one testified of—It is important that the very
object presented in court should be the one
testified of because it would lead to dire
consequences of the violation of the right of the
accused.
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Transcription based on the Lectures of
Atty. Jess Zachael Espejo
Example: RA 9165 (Comprehensive Dangerous Drugs
Act)
What would determine the penalty to be imposed on
the accused or the convict in a drugs case?
Isn’t that a fact that it is the quantity of the drugs found
in the person of the accused?
The more the amount of the shabu or drugs found in
his person the greater the penalty.
If what was found in the person of the accused was 0.5
grams and upon the presentation of the prosecution the
amount of drugs presented amounted to 10 grams, then
there must be something wrong.
2.) To ensure that there has been no significant changes
in the object’s condition
Class Discussion:
We go back to the case of OJ Simpson.
It would have been so easy to convict OJ Simpson had
there been no mishandling of the evidence in this case.
At the scene of the crime, the CSI/NCIS collected the
evidence in the crime scene.
One of the members of the CSI/NCIS found and collected
blood samples.
Now, it would have been easy to convict OJ Simpson if
such blood samples found in the crime scene matched his
person. It raises the question that if you weren’t really
there, then why were your blood smears found in the crime
scene.
But you know what happened there?
So, the officer who collected the vial containing the blood
took the samples and placed it in his pocket, went home,
took a shower, took a nap, changed clothes, got the vial of
blood, placed it in his pocket, went to the police station,
and turned it over.
So there is a break in the chain of custody here that he
cannot explain.
Why did he go home with that vial of blood that is a very
indispensable evidence to prove that OJ Simpson had the
opportunity to kill?
So the lawyer of OJ Simpson was able to exclude the
evidence.
At the very least there is reasonable doubt, because they
were not able to make sure that there had been no
significant changes in the object’s condition
Now, let’s go to the actual process of authentication.
Authentication Process:
1.) Introduction of proof of identity—It is usually done
through the testimony of a witness as to objects, which
are readily identifiable by sight. Provided, that there is
a basis for the identification by your senses.
Example: It could be markings placed on the object,
such as initials, his pictures in a digital camera or a
watermark.
2.) By the peculiar characteristics of the object—Certain
physical features which sets it apart from a particular
class by which it is readily identified.
Example: A hole caused by burning the sweater or a
broken hilt of a knife. So that makes the murder
weapon unique in a sense, because it had a broken hilt.
3.) Proof of Integrity—By proving that there was no break
in the chain of custody in the event that the object is
passed to the possession of different persons.
Now remember in a criminal investigation. If you find
evidence, you will not hold unto the evidence forever. For
example, you are part of the forensic team that analyzed the
crime scene. You will not be the custodian of the evidence.
The evidence has to transfer from one person to another, till
it gets into the hands of the forensic chemist. Then the
forensic chemist will then safeguard it and make a report.
That’s what happens. One person will not have the
possession of that evidence forever.
This means that there is a need to prove the chronological
sequence by which the evidence was handled only by
persons who by the reason of their functions or office can be
reasonably expected to have right or duty to possess or
handle the object.
When the object passes to the possession of a stranger, then
there is doubt as to the integrity and not on the identity of
the object.
4.) Proof of Preservation—By proving that the preservation
of the object, which consists of showing that the object was
kept in a secure place as to make contamination or alteration
difficult. It must not have been brought out until its
presentation in the court.
c. It must not be hearsay—it must not be information
received from another that one cannot adequately
substantiate.
d. It must not be privileged or otherwise excluded—self
explanatory
e. It must meet any addition requirement set by the
law—i.e. Section 21; RA 9165 (Chain of Custody
Requirement in Drugs Cases)
48:01 – 1:04:00 (Benrich Tan)
“Contamination and alteration”. It must be properly
reserved.
Later on, we will discuss the Hubert Webb case (which
involved rape) and how it relates to this. In that case, the
prosecution case had biological sample (semen) left in the
victim. Years later, the SC came up with the Rules on DNA
Evidence, which provided for post-conviction DNA testing.
A biological sample could be taken from Webb and
compared with the biological sample taken from the victim,
and be compared, due to the witness (Alfaro) stating that
she saw Webb rape Carmela Vizconde. If it matches, clearly
he would be the rapist. But Webb also wanted the post-
conviction DNA testing so he could prove he wasn’t the one
who raped her. However, the object was nowhere to be
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Atty. Jess Zachael Espejo
found (neither in the Court nor the NBI’s custody). Now
that was one of the things that the Court addressed in that
case, which was preservation of the object and on how it
could have been used later on for post-conviction DNA
testing. But again, we will talk about that case later.
Process in Authenticating Specific Objects
As to photographs, maps, diagrams
Authenticity is the act of proving the accuracy of the things,
persons, or places in the photograph which may be through
the testimony of the photographer or anyone familiar with
the person, places, or things shown therein.
General Rule: The normal way of authentication is by
presenting the photographer in court.
However, my opinion is that everyone is a photographer.
Gone are the days where you have to go to a photo studio to
get a picture taken. Now, it’s conceivable that a photograph
(as an object evidence of a specific crime) is merely taken
from the internet, and we don’t know who the photograph
is. Our tendencies nowadays is for a picture gone viral
(where it is shared by a seemingly endless line of people) to
be reached into the eyes of a complete stranger. If that is
your evidence, how can you even authenticate it when you
don’t know the photographer? There are no watermarks in
the picture stating that it was taken by a specific person.
Due to this, the exception applies.
Exception: Anyone who is familiar with the persons, places,
or things shown can testify. Also applies when it is
impossible for the photographer to testify.
Rationale: Sison v. People. It’s no longer exclusive to the
person who took the photograph. It rings true today
because anyone with a smartphone can be a photographer.
Example on authentication in open court:
Court: Are you the person in the picture?
Witness: Yes.
Court: What happened?
Witness: X was being killed, and we happened to be in the
picture.
Court: Is this photograph an accurate representation of what
happened to you that day?
Witness: Yes.
Court: Authenticated.
SISON VS. PEOPLE,
NOVEMBER 16, 1995.
Facts:
In a prosecution for murder, the prosecution presented
photographs showing the accused mauling the victim. The
person who took the photographs was not presented as a
witness. Instead, the prosecution presented the companions
of the victim who testified that they are the ones in the
photographs.
The defense objected the admissibility of the photographs
because the person who took the photographs was not
presented as the witness.
Issue:
Would that contention be tenable? NO.
Ruling:
The general rule in this jurisdiction is that photographs,
when presented in evidence, must be identified by the
photographer as to its production and testified as to the
circumstances under which they were produced. The value
of this kind of evidence lies in its being a correct
representation or reproduction of the original, and its
admissibility is determined by its accuracy in portraying the
scene at the time of the crime.
The photographer, however, is not the only witness who can
identify the pictures he has taken. The correctness of the
photograph as a faithful representation of the object
portrayed can be proved prima facie, either by the
testimony of the person who made it or by other competent
witnesses, after which the court can admit it subject to
impeachment as to its accuracy.
Here the photographs are admissible as the correctness
thereof was testified by the companions of the victim (who
happened to be in the photograph itself).
Tape Recording
Is the authentication limited to the person who made the
tape recording? Torralba v. People.
TORRALBA VS. PEOPLE
Facts:
The accused here is charged with libel. Presented as
evidence is a tape recording of the radio broadcast made by
the daughter of the complainant.
The daughter was not presented as a witness. Only the
complainant who, in open court, testified that he was not
familiar with the process of the recording. When he was
asked what was the process of recording, he said that he
does not know.
Issue:
So is the tape recording properly admitted?
Ruling:
The person who actually took the recording must be
presented in order to lay the foundation for the admission of
the tape recording.
In our jurisdiction, it is a rudimentary rule of evidence that
before a tape recording is admissible in evidence and given
probative value, the following requisites must first be
established, to wit:
1. a showing that the recording device was capable of
taking testimony;
2. a showing that the operator of the device was
competent;
3. establishment of the authenticity and correctness of
the recording;
4. a showing that changes, additions, or deletions
have not been made;
5. a showing of the manner of the preservation of the
recording;
6. identification of the speakers; and
7. a showing that the testimony elicited was
voluntarily made without any kind of inducement
Atty JZE: In lieu of all requisites showing the testimony
done was voluntarily made, I’d like you to observe that
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Atty. Jess Zachael Espejo
these are only applicable during the period where
everything was analog, not digital.
Requisite #1: Now cellphones are capable to of taking
testimony.
Requisite #2: Is there a requirement that you need a
bachelor degree in order to record? No. Everyone is
presumed to be competent
Requisite #3-4: In the era of digital recording, you can
manipulate sounds. It’s difficult to prove now, because the
ability to record is now shared among the general populace,
not just a small populace.
Requisite #5: We’re talking about a physical cassette tape.
Now, we can easily make copies of recordings.
So for me, these requisites should be changed, because the
SC should adapt with the changes of the technology. These
requisites are already antiquated.
Videos (from 2016 TSN, since Atty. JZE didn’t discuss this)
It is a lot easier than authenticating tape recording. You just
have to authenticate it just like authenticating photographs.
Mubalik lang ta sa doctrine sa Sison vs. People. It can be the
videographer, who will be presented or anyone competent,
according to the Supreme Court. Any other witness who can
testify as to its exactness and accuracy.
Categories of Object Evidence (for purposes of classification)
1:04:01 – 1:20:00 (Christian Yu)
Okay, so let’s go to Categories of Object Evidence – for
purposes of authentication:
A. Unique Objects
- Those that have readily identifiable marks.
Examples:
- A car that with a plate number MGA 239;
- A .45 caliber pistol with serial number 14344 (para
sweet);
B. Objects made Unique
- Are those that are readily identifiable.
Example:
- A bolo knife used to hack a victim, which could be
identified by a witness in court.
Wala siyay unique distinguishing mark but it is
made unique because of the familiarity of the
witness of the same. “Di gyud nako malimtan na
iyaha gyud kong gi-hack anang very same na bolo
knife na nah. As a matter of fact, Judge, wala na
koy kamot. :P ”
C. Non-unique Objects
- Those which have no identifying marks and
therefore, cannot be marked also.
Example:
- (Given by [Sir doesn’t actually know who the
author is] an unknown author) Footprints left at a
crime scene. How do you mark a footprint?
Although you can make casting, a plaster casting,
of a footprint and later on use it to make a model
or a replica of a footprint. So ginabuhat nah siya sa
TV. I don’t know in real life kung ginabuhat ba nah
siya. Personally, wala pa pud ko ka try so you
cannot gain any insight from me about ani.
Requisite # 3: MUST NOT BE HEARSAY
The witness testifying about the object must have personal
knowledge of it. So dapat naa kay kalambigitan at least
anang object na nah.
You have personal knowledge. You can relate to it in other
words.
Hearsay, again, chismis.
“Ingon ni A, mao kuno ni ang knife na gigamit.” “Ingon ni
B, mao kuno ni ang butang na gikawat.”
So he has no personal knowledge of it because what he is
testifying in court about the object was merely relayed to
him. He was merely told about that particular fact.
Requisite # 4: MUST NOT BE PRIVILEDGED OR NOT
OTHERWISE EXCLUDED BY THE LAW OR THESE
RULES (The Rules of Court)
This means that the object must pass the Axiom of
Competency.
Example:
- Wiretap recording proposed to be played in court;
- The exhibition of a private video which might
offend a person’s right to privacy;
- Fruit of Poisonous Tree
Now, one more Exclusionary Rule will be found in Article
III, Section 17 –
Right against Self-Incrimination
“No person shall be compelled to be a witness against
himself.” This was our example earlier – experimentation
inside the courtroom.
PEOPLE VS. YATAR (May 19, 2004):
Does the use of blood samples taken from the accused
violates the right to remain silent and his right against self-
incrimination?
Imagine what the prosecution here is trying to do and is
being sanctioned by the court – kuhaan kag blood sample so
that it can be compared to the biological samples found at
the scene of the crime.
If it matches then you are done.
So Yatar is complaining because probably, he knows that it
will match. He is complaining that it violates his right
against self-incrimination kay pugson ko nimo og hatag og
biological sample.
Now, remember that your DNA can be found in practically
every part of your body – hair, saliva, blood, etc. So with all
the more reason here because it is his blood.
Gikuhaan siya og blood sample so easy to compare ka with
the biological sample, in a crime of rape here, seminal
discharge.
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Atty. Jess Zachael Espejo
According to the SC, pataka ka lang. The kernel of the right
is not against all compulsion, but against testimonial
compulsion. So kanang pugson ka na mu-istorya.
The right against self- incrimination is simply against the
legal process of extracting from the lips of the accused an
admission of guilt. It does not apply where the evidence
sought to be excluded is not an incrimination but as part of
object evidence.
And so the SC said that a person may be compelled to
submit to
- fingerprinting,
- photographing,
- paraffin,
- blood and
- DNA,
as there is no testimonial compulsion involved.
It is a purely physical or mechanical act. Kuhaan lang man
ka og dugo. Do you testify? You don’t. So it is just object
evidence.
One thing you need to remember, a postulate that you need
to remember is – Object evidence is NOT covered by the
Right against Self-Incrimination.
What about handwriting? Can a person be compelled to
produce a sample of his handwriting as basis for
determining his criminal liability as the author of a certain
document?
Gipasulat ka og kanang kuan, whatever na ipasulat sa
imoha And then, i-compare nah siya sa usa ka document
that is purported to be forged or perjured an document.
So writing – is it a purely physical or mechanical act? NO.
Writing is NOT a mere mechanical act but involves the
application of the intellect. You cannot write without
applying intelligence. However, if the accused testifies in his
own behalf and denies authorship, he may be compelled to
give a sample of his handwriting.
So drawing of blood, taking of biological samples, paraffin
tests and so on are NOT covered by the right against self-
incrimination because they are purely physical or
mechanical acts.
Handwriting, giving a handwriting specimen is violative of
this right. It is not a purely mechanical act but involves the
application of the intellect. “When you write, you have to
use intelligence.”
That is my first tip when you take the Bar Examinations
during you time. So when you write, write with intelligence.
Bawal ang magpataka lang og yawyaw.
PEOPLE VS. WILLIAM:
One of Sir’s favorite cases in the world.
Would object evidence be inadmissible on the ground that it
is beyond the commerce of men? What happened here?
There’s this guy named Alejandro William na ndakpan na
nay gunit na marijuana. Selling actually marijuana.
Now, during trial and even during appeal, he said that “The
marijuana taken from my person should be excluded
because it is beyond the commerce of men.”
So what a great legal argument ‘di ba? Clearly, ang iyang
lawyer knows about what constitutes an illicit subject
matter under the Law on Sales – beyond the commerce of
men.
According to the SC, pataka lng ka. The probative value of
an object is not affected by the fact that it is beyond the
commerce of man.
Appellants raise the strange argument that exhibit C lacks
probative value because the subject thereof “marijuana” is
beyond the commerce of man. That is simply absurd
according to the SC.
The transfer of marijuana was incidental to the arrest of
appellants and the confiscation of the subject matter of the
crime. Exhibit "C" is in the same category as a death
certificate and autopsy report which are admissible
evidence of the subject of the crime — the human cadaver
which is also beyond the commerce of man. Transfer of
goods as a consequence or by virtue of police or state action
such as forfeiture, seizure, condemnation, confiscation did
not fall within the phrase "commerce of man" even in its
broadest meaning.
Why did I choose this case? Because number 1, it is funny.
And number 2, it shows you that in lawyering anything
goes. You can come up with the weirdest most absurd,
funniest and nonsensical arguments and it may even reach
the SC.
The law is black and white only when you are in law school.
Outside of law school, when you eventually practice law
what happens? You are free to use the law according to
your own interpretation. There is no more right or wrong
answer. What matters would be what the judge sees is true
or false.
Kung tuuhan ka sa judge. Horay. Congratulations. Kung
dili ka tuuhan, try and try until you die. Ing-ana lng man in
the practice. But in the bar examinations. You will be taking
the bar soon enough, you are in 3rd year now. So in 2 years,
you have to take the bar already. That is your goal diba.
Take the shortest route to the bar examinations. Take it
once. Pass the 1st time you take it. Mao na atong goal
Tanan.
You know what the examiner is looking for?
It’s not your perfect knowledge of the law, because nobody
has a monopoly of knowledge. You cannot be expected to
know everything there is about the law. You cannot be
expected to have read all the cases ever decided by the SC.
But what is expected of you is very minimal. Show me, and
im talking about being an examiner, if I were the examiner,
show me that you can argue like a lawyer. and if you do not
know what law to use, show me that you can bullshit like a
lawyer. mao lng na. the attitude of a first time practitioner.
So when you answer my examinations, argue persuasively.
I do not care if your arguments are PL(pataka lng) I don’t
care. But argue like a lawyer and I will not give you a zero.
Mao lng na ang kahinanglan pamugas mo. Ayaw ko tagai
ug answer na tinamad. Kay ang bar examiner puhon mao
lng man na ang ginapangayo. That you argue like a lawyer.
Ang lawyer na tipid kayoo ang storya. Mubo kaayo ang
ingnun, mubo kaayo ang mga pleading. Mao na ang mga
lawyer na dili ninyo dapat kuhaon.
So when you are taking the bar examinations, give the
examiner the attention that he deserves by arguing
persuasively.
‘Yes, the law provides that A is wrong. Therefore I conclude
that A is wrong”
That is the quickest and surest way to fail my class. Give me
persuasive arguments. I wouldn’t even care if its wrong or
right, you will still be given points. Just training you for the
bar. Dugay ko mu-uli ug notebooks mu-admit ko ana.
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Atty. Jess Zachael Espejo
“guilty your honor” your grades will come out probably
January pa. but I will try my best to give you your grades as
soon as possible. I am a very busy man. With a wife like that
you will be very very busy. But why does it take me a long
time to check your papers? Because I will always commit.
When I tell you that you are wrong, I will tell you why you
are wrong exactly so I am also telling you how to make it
right. So you will never doubt me for not trying to tell you
how to pass my class. I will always tell you. I will praise you
if you deserve praise. And I will tell you “dud WTF” if you
don’t. ok? So kabalo na ta karon pa-unsa mag-tubag. Same
goes with my wife, andam na mo sa akong asawa karon.
Ako pud andam na ko(hehe)
You know already how to answer. That is the surest way in
making sure that you pass the bar examinations. Before you
can take the bar pass my subject first. Those of you who are
regular 3rd year, you will realize you will not stop seeing
me until you graduate. Evidence 1st sem, 2nd sem torts and
damages. 1st sem 4th year, civil law review, conflict of laws.
2nd sem 4th year civil law review remedial law review. You
wont stop seeing me. Mag-sawa gyud mo sa akong dagway.
Just imagine mag-sawa dyud mo. And I hope when you
eventually pass the bar examinations pangitaon ko ninyo
una tungod magpasalamat. Ang di magpasalamat way
utang na loob. (hehe) off the record ni ha sa mga nag-record.
Then you have People vs Brecinio march 17,2004
Mateo was charged for the murder for shooting Gerald.
After trial, Mateo was found guilty as charged.(yey) On
appeal, Mateo argued that the trial court should have
acquitted him as the lower court has not proved his guilt
beyond reasonable doubt.
What is his argument?
The paraffin test conducted on him two days after he was
arrested yielded a negative result.
So that’s object evidence, the result of a paraffin test saying
that based on the test I did not fire a gun. That is what a
paraffin test is all about. It tests the residual chemicals
found sa imong skin after you fire a weapon. That is a
paraffin test. So according to Mateo he could not have shot
Gerald.
1:20:01 – 1:36:00 (Dane Viola)
According to Matteo, he could not have shot Gerald. Is this
interpretation correct?
No, that the paraffin test result is negative does not ipso
facto prove that Matteo is innocent. A negative paraffin test
is not conclusive proof that a person did not fire a gun. In
other words, it is possible to fire a gun and yet be negative
for nitrates, as when culprits wear gloves, wash their hands
afterwards, or are bathed in perspiration. Here, since Matteo
submitted himself for paraffin testing two days after the
shooting it was likely that he had washed his hands thus
removing all traces of nitrates thereof. So a negative paraffin
test is not fool proof.
Finally, object evidence must meet any additional
requirements set by the law. Example is RA 9165 or the
"Comprehensive Dangerous Drugs Act of 2002".
Section 21. Custody and Disposition of Confiscated, Seized,
and/or Surrendered Dangerous Drugs, Plant Sources of
Dangerous Drugs, Controlled Precursors and Essential
Chemicals, Instruments/Paraphernalia and/or Laboratory
Equipment.
It would include every testimony from every link and chain
from the moment the item was picked up to the time that it
is offered to evidence in such a way that every person who
touched the exhibit would describe how and from whom it
was received, where it was and what happened while it was
in his possession, the condition it was received and the
condition it was delivered to the next link of chain.
These witnesses would then describe the precautions taken
to ensure that there have been no change in the condition
and no opportunity for someone not in the chain to have
possession of the same.
So why do we need to establish the chain of custody?
1) To guarantee the integrity of the physical evidence;
2) To prevent the production of evidence which is not
authentic.
Take note that when an exhibit is positively identified, the
chain of custody of physical evidence would already be
irrelevant.
When dealing with illegal drugs, the ideal way of getting rid
of them is destroying them. Just imagine in a police station
they would want to get rid of the marijuana by burning
them, it will be a great party to be at.
Corruption is worst when drugs fall into the custody of the
police and then they sell it again for its high value.
FIRST LINK (Sec 21 RA 9165)
(1) The apprehending team having initial custody and
control of the drugs shall, immediately after seizure and
confiscation, physically inventory and photograph the same
in the presence of the accused or the person/s from whom
such items were confiscated and/or seized, or his/her
representative or counsel, a representative from the media
and the Department of Justice (DOJ), and any elected public
official who shall be required to sign the copies of the
inventory and be given a copy thereof;
Why is this required?
90% of those who were arrested by virtue of a buy-bust
operation claim as their defense that the evidence was
planted. Here it will be clear that it was not planted since
there will be representatives from the media who will attest
to it, there will be kawagad or Brgy. Captain.
What happens if there is a lapse in the chain of custody?
People v Eugenio
The noncompliance by the by bust team is not fatal as long
as there is justifiable ground therefor. And the integrity and
evidentiary value of the ceased item are properly preserved.
Its noncompliance will not render accused’s arrest illegal or
the items ceased from him inadmissible, what is of upmost
importance is the preservation of the integrity and
evidentiary value of the items as the same would be utilized
to determine the guilt or innocence of the accused.
For example there was no photograph, no countersign by
those required, that would not automatically ensure that the
accused will be acquitted or that the evidence will be
inadmissible.
If there is a lapse in the chain of custody, what it actually
affects would be the weight of the probative value, the
believability of the evidence. The weight to be given by the
court of the said evidence depends on the circumstances in
the case. It is conceivable that the lapses in the chain of
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Atty. Jess Zachael Espejo
custody would lead to an acquittal of the accused if the
probative value of the items seized by virtue of the buy-bust
operation that fell short of the requirement of Sec 21 would
produce reasonable doubt because of the lapses. But
generally, if it is just a buy-bust operation and there is a
minor lapse justification therefor, you can say that it does
not affect the admissibility of the evidence.
Now here’s this case:
People v Almorfe
Sir: There was no physical inventory, photographs in the
presence of the accused, he was later on convicted, the
question was WON the drugs were admissible. The SC here
stuck with the general rule:
FT:
Respecting the teams non-compliance with the inventory,
not to mention the photograph, requirement of R.A. No.
9165, the same does not necessarily render void and invalid
the seizure of the dangerous drugs. There must, however,
be justifiable grounds to warrant exception therefrom, and
provided that the integrity and evidentiary value of the
seized items are properly preserved by the apprehending
officer/s.
For the saving clause to apply, it is important that the
prosecution should explain the reasons behind the
procedural lapses and that the integrity and value of the
seized evidence had been preserved.
While a perfect chain of custody is almost always
impossible to achieve, an unbroken chain becomes
indispensable and essential in the prosecution of drug cases
owing to its susceptibility to alteration, tampering,
contamination and even substitution and exchange. Hence,
every link must be accounted for.
In fine, the prosecution failed to account for every link of the
chain starting from its turn over by Janet to the investigator,
and from the latter to the chemist.
So if there is lapses in the chain of custody, the
apprehending officers must explain it. If you do not offer an
explanation, then you must be hiding something and verily,
that would constitute reasonable doubt.
Presumption of regularity cannot overcome the
presumption of innocence or the constitutional
requirement of proof of guilt beyond reasonable doubt
leading to the acquittal of the accused.
GEN RULE: A perfect chain of custody is impossible to
achieve and will not affect the arrest and admissibility of
evidence.
1:36:01 – 1:52:00 (Edsam Andit)
If the prosecution fails to explain the reasons behind or the
circumstances behind the departure of the usual procedure,
if it does not explain every link in the chain of custody, it
might lead to acquittal.
That’s what we need to remember.
Kuntahay naay accused, a peddler of illegal drugs is caught,
and he goes because of reasonable doubt, dili na na muabot
sa Supreme Court. Tama? The moment he’s acquitted wala
na na. So, it would never reach the SC. You have no idea
how many drugs cases are thrown out before the RTC
because of Sec. 21. Because lawyers became to adept in
destroying the prosecution witnesses that account for every
link of the chain of custody.
Drug lords go free because of this chain of custody and
because prosecutors don’t know how to prosecute. And so,
as response, Congress came up with an amendment to RA
10643. More or less it is the same, but it has now legislated
what the SC said in the case of.
People vs Eugenio Ruling:
Non-compliance with these requirements under justifiable
grounds, as long as the integrity and the evidentiary value
of the seized items are properly preserved, by the
apprehending officer of team, shall not render void or
invalid such seizures and custody over said items.
So, they have to insert this because of the cases thrown out
in the RTC for the simple reason of failure to comply with
the chain of custody.
This is a reminder to the judges that non-compliance with
the requirements is not fatal as long as it is satisfactorily
explained and shown that the integrity of the items is
preserved.
I hope you don’t become lawyers who makes money out of
drug pushers. You are contributing to the problem.
(Story about how drugs can damage the country like Cuba.
And how many deaths occur in America due to drugs)
What’s my standard in lawyering? “If I can sleep at night
knowing what I did, I’m okay. If I can’t sleep at night, then
I’m not okay.”
REVIEW OF SOME PRINCIPLES/CONCEPTS:
No object evidence can ever be presented unless identified
or authenticated by a competent witness. It must be
sponsored by a witness.
General rule: The actual object evidence must also be
presented in court.
Exceptions: When presentation of objects may be dispensed
with and be replaced by testimony or documents.
1. If its exhibition is contrary to public morals or
decency.
When you take the BAR exams, you need to make
sure that your documents are in order. The sad
thing about it is if you’re a guy and your name is
the same with a famous personality who is a girl,
magbuot buot ang Civil Registrar. Imbes na Male
ka, himuon kang Female. It happens a lot.
I have this client named “Rio”. Rio is a guy. In his
birth certificate it’s FEMALE. Kay at that time,
sikat si Rio Locsin. A very pretty actress in our
time. So magbuot buot.
So, what do you need to do? Magfile ug petition
for correction of an entry in the Local Civil
Registry. Karun, pwede na na siya administrative
ra but before, you really need to file a case in court.
The problem was, nagkaproblema iyahang mga
documents. You need to secure NBI clearance,
medical certificate that you have been examined
and was really found a Male, etc.
The problem was gitrippingan ko kay baguhan ko
na abogado. So, it took a long time na dali ra unta.
It came to a point na niingon na akoang client “Pre!
Dili ba pwede maghubo nalang ko? Ipakita nalang
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Atty. Jess Zachael Espejo
nako na lalaki jud ko?” because it will be easier to
prove that way than to present a medical
examination from a doctor finding him to be
anatomically male.
But we did not do that because it is contrary to
public morals and decency.
2. To require being viewed in court or in ocular
inspection would result in delays, inconvenience,
or unnecessary expenses which is not in proportion
to the evidentiary value of such object.
3. Such object evidence would be confusing or
misleading as when the purpose is to prove the
former condition of the object and there is no
preliminary showing that there has been no
substantial change in the said condition; which is
applicable to ocular inspections; or
4. The testimonial or documentary evidence already
presented clearly portrays the object in question as
to render the view thereof unnecessary.
5. Where the existence of the object is not very the
fact in issue but is merely a collateral fact or is
merely used as reference.
6. Where the article cannot be recovered or outside
the coercive jurisdiction of the court.
7. In crimes the gist of which is the illegal possession
of article, a distinction must be made. If the article
is common or familiar such that it can be readily
identified by sight, its presentation is not
necessary. Its presentation is not necessary as
existence may be shown by the testimony of the
witnesses.
In illegal possession of firearms however, the accused may
still be convicted even without the presentation of the gun
in court. (take note of this)
PEOPLE vs. TAGUBA 342 SCRA 199.
RULING:
In cases involving the illegal possession of firearms, the
prosecution has the burden of proving (a) the existence of
the subject firearm, and (b) the fact that the accused does not
have corresponding permit to possess.
As to the first requisite the evidence can be best established
by the presentation of the firearm but there is no
requirement that the actual firearm itself must be presented
in court. It is not fatal if the prosecution did not present the
firearms itself.
Its existence can be established by a testimony. Where the
articles however are not common or not familiar to ordinary
persons, and cannot be identified by sight, they must be
presented in court.
OTHER LIMITATIONS:
The admission of the object evidence is subject to the
demands of decency and propriety, unless the admission is
extremely necessary.
Examples:
 Exhibition of the private parts in sex cases.
Alangan muingun ang judge na i exhibit giunsa
pag commit.
 Presentation of the corpse or disembodied body
parts.
 Re-enactment of violent/ offensive acts.
(Halimbawa, Mateo raped Maja. His defense that
he did not rape Maja is because he is incapable of
an having an erection. He maintains that rape for
him is an impossible crime due to the fact that his
manhood is an ineffectual means to commit the
crime. So can the judge say na ”Show me that it is
really ineffectual”? The judge cannot do that. The
judge cannot ask Mateo to experiment on himself.
 Objects which are offensive to man’s sensibilities or
repulsive objects should not be presented anymore.
Waste matters like human excreta, corpses of dead
animals, or killing of an animal to prove that the
substance is poison. You can just have a chemical
analysis of it. Have a chemist testify for it. No need
for experimentation.
 While obscene or indecent objects are no longer
needed to be presented in court, there may be
instances where they may be permissible to be
exhibited.
 If a view of the object is necessary in the interest of
justice, such object may still be exhibited. But the
court may exclude the public from such view. The
view may not be refused if the indecent or immoral
objects constitute the very basis of the criminal or
civil action (e.g obscene pictures or exhibits).
It happened to me. I was a collaborating counsel in a case I
handled in Cebu. The guy was cheating on his wife. Case for
concubinage was actually filed against him since there was
no anti-VAW-C law at that time yet. The ground was there
was sexual intercourse with a woman not his wife under
scandalous circumstances.
The only proof that we presented was the sex-tape in VHS.
So how do you attach that to the complaint? Of course, you
need to replay, get screen shots out of it. That is what you
attach. But that will not really prove whether carnal
knowledge was indeed under scandalous circumstances. So,
I was the one who presented the evidence, and the evidence
was the video tape. So, there was a question, “Your Honor,
is there a need to present the evidence in court considering
that it contains an obscene and indecent show? “But the
court said, IN THE INTEREST OF JUSTICE, WE WILL
WATCH THE VIDEO TAPE. So, all the lawyers, together
with the judge, went to his chamber. We watched the
videotape to determine whether or not it is scandalous.
We are done with object evidence. Let us know a little bit
about documentary evidence.
1:52:01 – 1:53:06 (Jennifer Lim)
Note: Chika lang gyud siya actually. Dili na relevant
*Kanang inyong generation, puro gyud mo walay buot. Mao gyud
nang difference sa inyong generation ug sa amoa. With the
exception of very few, who still belong to my generation. Be
careful of what you put out there. Pictures or videos of yourselves
not knowing that you are doing a Katrina Halili. That’s brotherly
advice. SIR CHECKS THE ATTENDANCE*
JULY 19, 2018
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Atty. Jess Zachael Espejo
00:00 -00:44 (Jennifer Lim)
We finished object evidence. For tonight, we will discuss
something that I have extensively written, DNA as Evidence
in the Philippines. First thing we need to know is that DNA is
also object evidence as in the case of People vs. Lavapie and
People vs. Alulod wherein the Supreme Court said that it is
the evidence of the highest order. Why? Because it speaks
for itself eloquently, more than a hundred witnesses. Such
that when the object evidence runs counter to the
testimonial evidence of the case, it will always be the
physical evidence that will prevail.
What is DNA? DNA means deoxyribonucleic acid, which is
the chain of molecules found in every nucleated cell of the
body. The totality of an individual’s DNA is unique for the
individual, except identical twins. DNA evidence
constitutes the totality of the DNA profiles, results and other
genetic information directly generated from DNA testing of
biological samples. 1
What are these biological samples? Biological sample
means any organic material taken from the body that could
be viable for DNA testing. This could be from your hair,
saliva, or blood.
A few interesting facts before we go to DNA evidence.
1. Take note that about 97% of our DNA is junk.
Walay pulos or components with no known
biological functions. That’s the mystery of it.
2. Chimpanzees are 96% to 98% similar to humans,
depending on how it is calculated. (Which explains
why you have schoolmates here in AdDU who
look like monkeys.)
3. Cats have 90% of homologous genes with humans;
Meaning we have 90% analogous genes with cats,
82% similar with dogs, 80% with cows, 79% with
chimpanzees, 69% with rats and 67% with mice.
4. 75% of mouse genes have equivalents in humans,
90% of the mouse genome could be lined up with a
region on the human genome
5. The fruit fly (Drosophila) shares 60% of its DNA
with humans. About 60% of the chicken genes
correspond to a similar human gene. So there’s a;
little bit of cannibalism there when we eat at KFC.
I’m saying this because despite the fact of similarity with
human beings in this universe that we inhabit, we are the
only being with millions and millions of genes. It is least
likely to confuse DNA of the human beings to that of a cow,
a cat or what have you.
The question now is, since you are law students, there is
now the topic on how DNA can aid in criminal
investigation. In determining, for example, the culprit in
murder or in any other case where it would be relevant.
How similar is the DNA of one person to the other? The
genome variation of one human being to another is only
0.5%. So, we are all 99.5 % similar regardless of gender or
age.
Given the similarity, how can DNA Evidence be helpful in
solving a case, in finding a possible perpetrator? It’s pretty
darn accurate. The set of chromosomes in a cell makes up its
genome; the human genome has approximately 3 billion
base pairs of DNA arranged into 46 chromosomes.
According to the FBI, the chance of misidentification is one
in a billion. No two persons have identical DNA except with
respect to identical twins. What is the rate of identical
twins? The rate is 1 in 250. But would be difficult as to the
1
Rules on DNA Evidence, Section 2
entire population, one in a billion lang ang possibility of
misidentification.
Where does this concept come from? The criminal
investigation that makes for example biological samples? It
comes from this guy Edmund Locard.
Edmund Locard (1877-1966)
He was a pioneer in forensic science who became known as
the Sherlock Holmes of France. He formulated the basic
principle of forensic science: “Every contact leaves a trace.”
This became known as the Locard’s exchange principle.
Another author used Locard’s Exchange Principle as:
"Wherever he steps, whatever he touches, whatever he
leaves, even without consciousness, will serve as a silent
witness against him. Not only his fingerprints or his
footprints, but his hair, the fibers from his clothes, the
glass he breaks, the tool mark he leaves, the paint he
scratches, the blood or semen he deposits or collects. All
of these and more, bear mute witness against him. This
is evidence that does not forget. It is not confused by the
excitement of the moment. It is not absent because
human witnesses are. It is factual evidence. Physical
evidence cannot be wrong, it cannot perjure itself, it
cannot be wholly absent. Only human failure to find it,
study and understand it can diminish its value."
So we are talking about here, physical or object evidence.
Let’s now discuss the academic side. What are the purposes
of DNA Evidence in the law? How can DNA Evidence be
useful?
1. Identification (unidentified corpses in airplane
crashes or in mass graves, decomposed murder
victims, for example. You could take DNA samples
and compare it in order to identify)
2. Determination of parentage and pedigree
(paternity and maternity testing)
3. Criminal Investigation (which would the police in
including or elimination of suspect by the police in
building a case). We are talking here about
investigation.
It can also be used by the prosecution in which DNA could
help in convicting perpetrators of crimes as to exonerate
individuals. Making evidence necessary in inculpatory or
exculpatory --- Inculpatory meaning included; Exculpatory
meaning you will be excluded or exonerated as a suspect.
So building a case would be much easier when you have
zeroed in a suspect
DNA CASES THROUGHOUT HISTORY
A. DNA for Identification: Josef Mengele a.k.a. The
Angel of Death, a Nazi Officer during WWII.
Mengele was so morbid. He was a notorious member of the
team of doctors responsible for the selection of victims to be
killed in the gas chambers and for performing deadly
human experiments on prisoners (mostly the Jews). The
dark history here when Hitler who is probably the most
disturbed that he had divisions working for him precisely to
conduct experiments.
His experiments:
1. Twin boy toddlers were sewn together so Mengele
could investigate how Siamese twins behaved.
2. Twin girls were forced to have sex with a pair of
male twins and, if they got pregnant, kill them and
remove the embryos for study.
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3. In another case, one twin was infected with TB
then both were killed so Mengele could observe the
different pathology.
When Germany fell, Mengele fled and eluded capture for a
long time. There were many alleged sightings of him up to
1985. It was important for nations that Mengele was brought
to justice. Until the 1990’s, this was still an issue as
something had to be done. This happened in the World War
2 which ended in 1945.
In 1969, a man named Wolfgang Gerhard drowned in Brazil
and was buried there. Blood specimens from Mengele’s wife
and son were used to reconstitute Mengele’s DNA pattern.
In 1992, the remains of Gerhard were confirmed to be those
of Mengele. Thus, ended the painful chapter of human
history.
B. For Determination of Parentage and Pedigree:
The Russian Imperial Romanov Family
They were the last imperial Romanov family. Their king
was called Tsar. After the Bolshevik Revolution in Russia,
deposed Tsar Nicholas II, his wife and five children were
executed by the Bolshevik Troops upon orders of Lenin on
July 17, 1918.
They were all buried in unmarked graves for fear of
desecration. Why? Kung imo na silang ibutang dira, it
would cause revolution. Maybe the supporters would did
them up or use them as a rallying cry; if you are against the
imperial family, you could dig them up and use them for
parade or something like that. Rumors persisted, however,
that the youngest daughter, Anastasia had survived and
escaped Russia. Survival of a member of the Royal family
could have been used as a rallying point by those loyal to
the Royal Family and at the same time anti-Bolshevik
groups to depose the new communist regime. There’s a
Messianic factor to it.
In 1920, however, a woman named Anna Anderson
surfaced in Germany claiming to be “lost” Romanov heiress,
Anastasia. A lot of people were convinced because of the
actual similarities.
In 1991, the bones of the Romanov family were discovered
and verified through DNA matching with a relative, Prince
Philip, husband of Queen Elizabeth II of Great Britain.
By that time, Ann Anderson was already dead. A sample of
Anderson’s tissue, part of her intestine removed during her
operation in 1979, had been stored at Martha Jefferson
Hospital, Charlottesville, Virginia. Anderson’s
mitochondrial DNA was extracted from the sample and
compared with that of the Romanovs and their relatives.
It did not match that of the Duke of Edinburgh or that of the
bones, confirming that Anderson was not related to the
Romanovs. In other words, impostor.
C. For DNA Evidence can be used in Criminal
Prosecution: Buckland Case
Between 1983 and 1986, two 15-year old girls were
separately raped and murdered. The modus operandi of the
crimes was similar. Semen samples obtained from the
bodies revealed that there was only one assailant. The main
suspect was Richard Buckland , a 17-year-old youth with
learning difficulties, who revealed knowledge of one of the
girls’ body, and admitted the second murder under
questioning. But he denied the first murder.
So the investigators wondered why would he deny the first
and admit to doing the other crime wherein it was already
established through testing that there is only one assailant.
Having no solid lead on the crimes, investigators turned to
Sir Alec Jeffreys. Jeffreys is a British geneticist, and the man
credited for developing techniques for DNA fingerprinting
and DNA profiling which are now used worldwide in
forensic science to assist police detective work and to
resolve paternity and immigration disputes.
Jeffreys compared semen samples from both murders
against blood sample from Buckland which conclusively
proved that both girls were killed by the same man, but not
Buckland. Historically speaking, Buckland became the first
suspect in the world to be exonerated by the use of DNA
evidence.
The police then undertook an investigation in which 5,000
local men were asked to volunteer blood or saliva samples.
Swabbing is this big cottonbud used to collect saliva. This
took six months, and no matches were found.
Then, in 1987, the police discovered that one man, Colin
Pitchfork had paid his co-worker to give a DNA sample
while posing as him. After collecting a DNA sample from
Pitchfork, the authorities were able to make a positive match
with the semen samples. He was the first person to be
convicted because of DNA Evidence. He was sentenced to
life imprisonment and concurrent terms for rape and
murder.
What I’m trying to say is as early as 1984, the use of DNA as
evidence in cases had been accepted internationally. What
about us in the Philippines?
As early as 1995, there was a mention of DNA evidence in
the case of People vs. Teehankee, Jr.
PEOPLE vs. TEEHANKEE, JR. (Oct. 6, 1995)
This case if about the murder of a certain Maureen
Goldman. It became known in the country for the reason
that Teehankee Jr. was the son of the Chief Justice, Claudio
Teehanke Sr.
The appellant was convicted of murder on the testimony of
three eyewitnesses, the Supreme Court stated as an obiter
dictum that “while eyewitness identification is significant, it
is not as accurate and authoritative as the scientific forms of
identification such as the fingerprint or DNA testing”.
Facts: In 1991, 3 separate criminal cases were filed against
accused Claudio Teehankee, Jr. Accused relied on the
defense of denial and alibi. Accused claimed that during the
shooting incident, he was not anywhere near the scene of
the crime, but in his house in Pasig.
Ruling: The accused was convicted on the strength of
thetestimonies of 3 eyewitnesses who positively identified
him as the gunman.
In a way, the Supreme Court is making a hierarchy. We
may have eyewitness identification but it is not as accurate,
our memories are actually subjective and selective. There’s
a possibility of a flawed identification process. The Supreme
Court said naa pa mas reliable ani. It could be DNA
evidence or finger printing. But, 2 years later in a paternity
dispute in the case of Pe Lim vs CA.
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Atty. Jess Zachael Espejo
PE LIM vs. CA (GR No. 112229, Mar. 18, 1997)
DNA, being a relatively new science, it has not as yet been
accorded official recognition by our courts. Paternity will still
have to be resolved by such conventional evidence as the
relevant incriminating acts, verbal and written, by the putative
father.
Facts: In 1978, the petitioner Raymond Lim and respondent
Maribel Cruz fist met in a club. In January 1982, Maribel gave
birth to their daughter. Towards the latter part of 1983, Maribel
noticed that the petitioner’s feeling towards her started to
wane. He even insinuated that he was not the father of the
child considering the nature of Maribel’s work as an
entertainer..
Ruling: Article 172 (2) states “An admission of legitimate
filiation in a public document or a private handwritten
instrument and signed by the parents.” He is the father of the
child since he executed all responsibilities which
undeniably showed concern of a legitimate father such as
payment of hospital bill, causing the registration of the child
using his surname and lastly the lines in his letters which much
love and concern to Maribel and their daughter.
SC is saying relatively new evidence na diba 1980’s naa na
man? Here we go in 1997, delayed by a few years, saying
that it is relatively new. This paternity case held against the
putative father. The Supreme Court is hesitant to consider
DNA testing as in the resolution of the case and the same
hesitancy is in Andal vs. People.
ANDAL vs PEOPLE
(GR No. 138268, May 26, 1999)
Facts: There are three gang rapists here. After being
convicted of rape and sentenced to the death penalty, the
accused proposed a novel request for DNA testing as a
means to reverse their conviction. If the testing proved
negative, they propose that they should be acquitted.
Held: The issue of DNA as a more accurate and
authoritative means of identification than eye-witness
identification need not be belaboured. The accused were all
properly and duly identified by the prosecutions principal
witness Olimpio Corales, a brother in law of accused Jurry
and Ricardo Andal.
DNA testing proposed by petitioners to have an objective
and scientific basis of identification of semen samples to
compare with those taken from the vagina of the victim are
thus unnecessary or are forgotten evidence too late to
consider now.
Let’s go back to Teehankee, where the SC actually held that
DNA evidence is superior. Yet, here in Andal the SC is
saying na no need. You were truly identified. In Teehankee
diba it said eyewitness identification is flawed. The SC here
is saying no need for DNA.
PEOPLE vs. PENASO
GR No. 121980, Feb. 23, 2000
Facts: In November 1989, Penaso allegedly raped his
daughter’s classmate. The victim became pregnant and gave
birth on July 16, 1990 or eight months later. Take note, 8
months. After being convicted and on appeal to the
Supreme Court, Penaso asked for DNA Testing to
determine if he was really the father of the child he should
be acquitted.
Held: SC said Pregnancy is not an element of rape. The issue
of "DNA tests" as a more accurate and authoritative means
of identification than eye-witness identification need not be
belabored. The accused was properly and duly identified by
the prosecutions principal witness.
In other words, the SC is echoing Andal being that
pregnancy is not an element of rape, enough na ang eye
witness identification.
PEOPLE vs. FAUSTINO
(September 6, 2000)
Decided a few months after Penaso. This is a case for
robbery with homicide. Accused-appellant SPO1 Bernie
Jamon Faustino of the crime of robbery with homicide and
sentenced him to suffer the extreme penalty of death.
In an obiter, the SC revisited Teehankee stated that: “An
eyewitness identification, which authors not infrequently
would describe to be ‘inherently suspect,’ is not as accurate
and authoritative as the scientific forms of identification
evidence like by fingerprint or by DNA testing.”
So unsa man jud, Supreme Court? In Faustino, it said na
better ang DNA testing than witness identification. In the
previous case of Penaso, it need not be belaboured. The SC
is actually flip-flopping here.
TIJING vs. CA
(GR No. 125901, March 8, 2001)
The Supreme Court, for the first time, opened the possibility
of admitting DNA as evidence of parentage. The Court
issued a writ of habeas corpus against respondent who
abducted petitioner’s youngest son. Testimonial and
documentary evidence and physical resemblance were used
to establish parentage.
However, the SC noted: “Parentage will still be resolved
using conventional methods unless we adopt the modern
and scientific ways available. Fortunately, we have now the
facility and expertise in using DNA test for identification
and parentage testing. The University of the Philippines
Natural Science Research Institute (UP-NSRI) DNA
Analysis Laboratory has now the capability to conduct DNA
typing using short tandem repeat (STR) analysis. The
analysis is based on the fact that the DNA of a child/person
has two (2) copies, one copy from the mother and the other
from the father. The DNA from the mother, the alleged
father and child are analyzed to establish parentage.
Of course, being a novel scientific technique, the use of
DNA test as evidence is still open to challenge. Eventually,
as the appropriate case comes, courts should not hesitate to
rule on the admissibility of DNA evidence. For it was said,
that courts should apply the results of science when
competently obtained in aid of situations presented, since to
reject said result is to deny progress. Though it is not
necessary in this case to resort to DNA testing, in future it
would be useful to all concerned in the prompt resolution of
parentage and identity issues.”
Facts: Edgardo and Bienvenida Tijing filed a petition for
habeas corpus in order to recover their youngest child,
Edgardo Jr., whom they did not see for 4 years.
Ruling: The trial court was correct in its judgment based on
the evidence established by the parents and by the witness
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Atty. Jess Zachael Espejo
who is the brother of the late common-law husband of
Angelita. Furthermore, there are no clinical records, log
book or discharge from the clinic where John Thomas was
allegedly born were presented. Strong evidence directly
proves that Thomas Lopez, Angela's "husband", was not
capable of siring a child. Moreover, his first marriage
produced no offspring even after almost 15 years of living
together with his legal wife. His 14 year affair with Angelita
also bore no offspring.
Trial court also observed several times that when the child
and Bienvenida were both in court, the two had strong
similarities in their faces. Resemblance between a minor and
his alleged parent is competent and material evidence to
establish parentage. Lastly, the spouses presented clinical
records and testimony of the midwife who attended
Bienvenida's childbirth.
So, the SC is warming up to the idea because we have the
UP laboratory that has the ability to perform testing of
biological samples or DNA testing. The SC has recognized
the ability of the Philippines. In 2002, the SC has used DNA
evidence to convict the accused beyond reasonable doubt in
the case of Vallejo.
PEOPLE vs. VALLEJO
(May 9, 2002)
Facts: Vallejo was charged with raping and murdering a 9-
year-old child. The victim’s DNA samples from the
bloodstained clothes of the accused were admitted in
evidence. Also, the DNA profile from the vaginal swabs
taken from the rape victim matched the accused’s DNA
profile. The high Court affirmed the accused’s conviction of
rape with homicide and sentenced him to death.
Held: DNA is an organic substance found in a person’s cells
which contains his or her genetic code. Except for identical
twins, each person’s DNA profile is distinct and unique.
When a crime is committed, material is collected from the
scene of the crime or from the victim’s body for the suspects
DNA. This is the evidence sample. The evidence sample is
then matched with the reference sample taken from the
suspect and the victim.
The purpose of DNA testing is to ascertain whether an
association exists between the evidence sample and the
reference sample. The samples collected are subjected to
various chemical processes to establish their profile.
The DNA test may yield THREE possible results:
1. EXCLUSION. The samples are different and
therefore must have originated from different
sources. This conclusion is absolute and requires
no further analysis or discussion;
2. INCONCLUSIVE. It is not possible to be sure,
based on the results of the test, whether the
samples have similar DNA types. This might occur
for a variety of reasons including degradation,
contamination, or failure of some aspect of the
protocol. Various parts of the analysis might then
be repeated with the same or a different sample, to
obtain a more conclusive result; or
3. INCLUSION. The samples are similar, and could
have originated from the same source. In such a
case, the samples are found to be similar, the
analyst proceeds to determine the statistical
significance of the similarity.
In assessing the probative value of DNA evidence,
therefore, courts should consider, among others things, the
following data:
 How the samples were collected; 

 How they were handled; 

 The possibility of contamination of the samples; 

 The procedure followed in analyzing the samples,
whether the proper standards and procedures
were
 followed in conducting the tests
 The qualification of the analyst who conducted the
tests. 

After this case, the SC has a changing tide. There was a long
period of hesitation. The Supreme Court has had a series of
flip-flopping. In one case, saying eyewitness identification is
enough then in another saying that it is not reliable. The
Supreme Court has now begun to ask for DNA Evidence as
means for prosecution.
PEOPLE vs. JANSON
(GR No. 125938, April 4, 2003)
Facts: This case involves a complex crime of rape with
homicide. In 1995, RTC of Cotabato ruled that the
appellants were guilty of the crime of robbery with rape,
and sentencing each of them to the penalty of Reclusion
Perpetua, and ordering them to pay P30,000.00
and P10,000.00 in favor of Marites Alcantara and Cesario
Alcantara
Ruling: The SC acquitted the accused charged with rape for
lack of evidence because “doubts persisted in our mind as to
who were the real malefactors. Yes, a complex offense had
been perpetrated but who were the perpetrators? How we
wish we had DNA or other scientific evidence to still our
doubts!”
SC: “ After due reflection and deliberation, we still find difficulty
in sustaining the trial courts conclusion regarding appellants
guilt because of inconclusive identification. Doubts persist in our
mind as to who are the real malefactors. Yes, a complex offense has
been perpetrated, but who are the perpetrators? How we wish we
had DNA or other scientific evidence to still our doubts! But we
have only uncertain testimonies to rely on. It is only when the
conscience is satisfied that the persons on trial are the ones who
committed the offense that the judgment should be for
conviction. Only when there is proof beyond reasonable doubt can
we be certain that, after trial, only those responsible should be
made answerable. The evidence for the prosecution must stand or
fall on its own merit and cannot be allowed to draw strength from
the weakness of the evidence for the defense.
TECSON vs COMELEC
(March 3, 2004)
This was the case that determined the eligibility of FPJ to
run as president of the Philippines. There was an issue of
filiation. All that FPJ had to prove was that either iyahang
mama or papa kay natural born nga Pilipino.
SC said, “In case proof of filiation or paternity would be
unlikely to satisfactorily establish or would be difficult to
obtain, DNA testing, which examines genetic codes
obtained from body cells of the illegitimate child and any
physical residue of the long dead parent could be resorted
to. A positive match would clear up filiation or paternity. In
Tijing vs. Court of Appeals, this Court has acknowledged
the strong weight of DNA testing.”
PEOPLE vs. MOJELLO
(GR No. 145566, Mar. 9, 2004)
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Atty. Jess Zachael Espejo
The cause of death as cardio-respiratory arrest due to
asphyxiation and physical injuries; she was strangled to
death and left on the seashore as manifested by the frothing
in her lungs. No physical, scientific or DNA evidence was
presented to pinpoint appellant as the person who killed the
victim. Thus, appellant cannot be convicted of rape with
homicide considering the insufficiency of evidence which
thereby created a reasonable doubt as to his guilt for the
said special complex crime.
Appellant should instead be held liable only for the crime of
statutory rape, the victim Lenlen Rayco then eleven years
old.
Walay DNA then eh, so we cannot convict him for the
complex crime. Of course, we have the case of People vs.
Yatar.
People vs. Yatar
Facts: Yatar was accused of committing rape with homicide
against victim Kathylyn. DNA testing of the sperm
specimen from the vagina of the victim was of identical
semen. Yatar questions the giving of much weight to the
evidence presented by the prosecution notwithstanding
their doubtfulness.
KEY POINTS IN EVIDENCE:
 Evidence is relevant when it relates directly to a fact in
issue as to induce belief in its existence or non-existence.
 Pertinent evidence based on scientifically valid principles
could be used as long as it was relevant and reliable.
 Evidence is relevant when it relates directly to a fact in
issue as to induce belief in its existence or non-existence
Yatar was convicted of the crime of rape and homicide.
DNA from the vagina had sperm specimen, was a positive
match to that of the appellant. We have discussed Yatar in
object evidence and said that object evidence is not free
from any type of compulsion, but only against testimonial
compulsion. The process of extracting from the lips of the
accused-- his guilt. But, it does not apply to mechanical acts.
Yatar also tells us about international precedence, the
admission of scientific techniques in resolving a case. For
example, in Daubert.
In Daubert v. Merrell Dow, it was ruled that pertinent
evidence based on scientifically valid principles could be
used as long as it was relevant and reliable. Judges,
under Daubert, were allowed greater discretion over which
testimony they would allow at trial, including the
introduction of new kinds of scientific techniques. DNA
typing is one such novel procedure.
Under Philippine law, evidence is relevant when it relates
directly to a fact in issue as to induce belief in its existence
or non-existence. Applying the Daubert test to the case at
bar, the DNA evidence obtained through PCR testing and
utilizing STR analysis, and which was appreciated by the
court a quo is relevant and reliable since it is reasonably
based on scientifically valid principles of human genetics
and molecular biology.
Pay particular attention in the case of Yatar of the defenses
raised, it has also cited the right against self-incrimination
and the right to remain silent under Article 3 of the
Constitution.
44:01 – 1:00 (Gillian Grancho)
(On PEOPLE V YATAR )
1st argument: Yatar contends that the blood sample taken from
him as well as the DNA tests were conducted in violation of his
right to remain silent as well as his right against self-
incrimination
We know already that the SC here ruled that:
“The kernel of the right is not against all compulsion, but
against testimonial compulsion. The right against self-
incrimination is simply against the legal process of
extracting from the lips of the accused an admission of guilt.
It does not apply where the evidence sought to be
excluded is not an incrimination but as part of object
evidence.”
We ruled in PEOPLE V RONDERO that although accused-
appellant insisted that hair samples were forcibly taken
from him and submitted to the National Bureau of
Investigation for forensic examination, the hair samples may
be admitted in evidence against him, for what is proscribed
is the use of testimonial compulsion or any evidence
communicative in nature acquired from the accused under
duress.
Hence, a person may be compelled to submit to
fingerprinting, photographing, paraffin, blood and DNA,
as there is no testimonial compulsion involved
What are we talking about here?
 Purely physical or mechanical acts
Like obtaining pubic hair, there’s no compulsion here
involved. The hair does not testify, unless sponsored by a
person, dili lang gihapon. It has to be analyzed pa, you’re
not forced to make confession of guilt.
2nd argument: Yatar further argues that the DNA tests conducted
by the prosecution against him are unconstitutional on the ground
that resort thereto is tantamount to the application of an ex-post
facto law.
That’s novel, if you really thought about it. But the SC said
that argument is specious. No ex-post facto law is involved
in the case at bar. The science of DNA typing involves the
admissibility, relevance and reliability of the evidence
obtained under the Rules of Court. Whereas an ex-post facto
law refers primarily to a question of law, DNA profiling
requires a factual determination of the probative weight of
the evidence presented. Dili lang gihapon sya ex-post facto
law.
Take note:
1. DNA Testing in court cases involves a scientific
procedure. The testimony tending to interpret the
results of such scientific procedure would necessarily
be rendered by experts.
Remember ha, this is a scientific technique that the
courts do not have competence on. Do you expect the
courts to just understand it without the aid of expert
testimony?
You will know later on, under Rule 130, that the expert
testimony is an exception of the opinion rule. You
already know that our courts and tribunals are courts of
law and not of science or medicine. So walay alam
atong korte ana.
2. In American jurisprudence, there are tests to determine
admissibility of scientific/expert evidence.
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 EVIDENCE
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Transcription based on the Lectures of
Atty. Jess Zachael Espejo
I want you to remember these tests:
 The Frye Test (Frye vs. United States, 293 F. 1013,
1014 [D. C. Cir. 1923])
 The Daubert Test (Daubert vs. Merrell Dow
Pharmaceuticals, 509 U.S. 579 S.Ct. 2786 [1993])
and later on expanded in Kumho Tire vs.
Carmichael, 526 U.S. 137, 119 S.Ct. 1167 (1999)
Ngano gina pa assign sa inyo? It’s because the courts
have already cited these cases. Kailangan nato na sya
tun an
FRYE TEST
Scientific evidence is admissible if it was based on a
scientific technique generally accepted as reliable in the
scientific community. Expert testimony was admitted
simply by virtue of the expert’s credentials, experience, skill
and reputation. Any deficiencies or flaws in the expert’s
conclusions would be exposed through cross-examination.
Applying this rule, Frye court refused to admit testimony
based on an early lie detector (polygraph) test reasoning
that lie detector testing had not gained general scientific
acceptance or recognition at that time and even until now.
The results of lie detector test are not given admissibility
because of our general mistrust, they are saying that there
are ways to beat a lie detector test.
I know something better than a lie detector test – a woman’s
intuition. I don’t know why, when I lie to my wife, she will
know. Mayo na lang I don’t lie.
The standard therefore in Frye is simply general
acceptance.
 If a procedure is generally accepted, then we don’t have
a problem anymore. The court will accept that, it will
receive expert testimony and accord it proper probative
value or weight.
 If a procedure is not generally accepted, evidence
obtained using this procedure would be inadmissible.
In a way, this is echoed in: PE LIM vs. CA (GR No. 112229,
Mar. 18, 1997)
DNA, being a relatively new science, it has not as yet been
accorded official recognition by our courts. Paternity will
still have to be resolved by such conventional evidence as
the relevant incriminating acts, verbal and written, by the
putative father.
DAUBERT TEST
The US Supreme Court expanded the “general acceptance
test” and said that trial judges have the role of
“gatekeeper” to ensure “that any and all scientific
testimony or evidence admitted is not only relevant, but
reliable.”
The Court stated that the trial judge should determine
whether the reasoning and methodology is “scientifically
valid” and whether “that reasoning properly can be applied
to the facts in issue.”
Who among you here will agree that smoking kills?
That it is addictive and can cause a variety of diseases? How
could you prove that in court?
Is there a study by experts whether nationally or
internationally which categorically tell you beyond a
shadow of a doubt that smoking is addictive and can cause
a variety of diseases and eventually death?
Tobacco companies will have the resources to hire contrary
experts to tell you that it’s not the smoking which caused
death but something else. So nothing is definitive. It’s an
open secret but nobody will officially that in open court.
Nobody will also admit that smoking kills and say that for
the record. The cases involving expert testimonies will not
prosper because tobacco companies will just settle and keep
the records closed.
That’s where the Daubert test should have come in . Trial
judges should be gatekeepers.
Confronted with the scientific duel, it is the duty of the
judges to ensure that such scientific evidence is not only
relevant but reliable.
Four Daubert Factors:
 whether a theory or technique can, or has been,
tested;
 whether it has been subjected to peer review and
publication;
 in respect to a particular technique, the known or
potential rate of error and the existence or
maintenance of standards controlling the
technique’s operation; and
 whether the theory or technique enjoys general
acceptance within a relevant scientific community.
Remember that in the case of Frye, the SC’s standard there is
simply general acceptance, but in the case of Daubert, ang
iyang standard na is based on relevancy and reliability. In a
way, the Daubert test factors in the Frye test and is more
comprehensive between the two tests
Kumho expanded the application of the Daubert test not
only to cover scientific knowledge but also technological or
technical knowledge.
Take note:
By being foreign precedence, neither the Frye standard nor
the Daubert-Kumho standard is controlling in the
Philippines. At best, American jurisprudence merely has a
persuasive effect on our decisions. Here [in the Philippines],
evidence is admissible when it is relevant to the fact in issue
and is not otherwise excluded by the law or the Rules of
court.
But, even if neither is controlling on Phlilppine law, it bears
to mention that Yatar seems to approve Daubert. Diba gina
mentiones niya ang factors ni Daubert.
Take note however, that Daubert was applied
- to determine the weight, meaning probative value,
katooha ba, believability of evidence
- not the admissibility
Let’s go to another case,
CABATANIA vs. CA (GR No. 124814, Oct. 21, 2004)
Florencia Regodos was employed as the househelp of
Camelo Cabatania. It was while working there as a maid
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 EVIDENCE
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Transcription based on the Lectures of
Atty. Jess Zachael Espejo
that, on January 2, 1982, Camelo brought her to Bacolod
City where they checked in at the Visayan Motel and had
sexual intercourse. (Gi trip pa jud niya, ka sweet)
Camelo promised to support her if she got pregnant.
Florencia claimed she discovered she was carrying Camelo’s
child 27 days after their sexual encounter. The child was
born in September 1982 or eight months later. (it’s already
the second case, basi nay pattern)
Florencia, on behalf of her son, filed petition for recognition
and support. The trial court ruled that: “In view of the
evidence presented by the plaintiff, the Court finds the
evidence of the plaintiff to be meritorious; defendant
admitted having a sexual intercourse with the plaintiff’s
mother, Florencia Regodos, but denied paternity to the
child. The child was presented before the Court, and if the
Court is to decide this case, based on the personal
appearance of the child, then there can never be a doubt
that the plaintiff-minor is the child of the defendant.”
Sir: Chinese people for example, all look the same. Diba?
Mag paryente mana sila. How is it that rely on mere
physical resemblance? To my mind, that’s really
problematic. Can you confuse one Indian from another?
You can.
Held: In this age of genetic profiling and deoxyribonucleic
acid (DNA) analysis, the extremely subjective test of
physical resemblance or similarity of features will not
suffice as evidence to prove paternity and filiation before
the courts of law.
Private respondent’s petition for recognition and support is
dismissed.
In this case, the SC placed a premium on using more
accurate methods of determining paternity and filiation
other than physical resemblance.
IN RE: DE VILLA (GR No. 158802, Nov. 17, 2004)
The Supreme Court convicted De Villa by final judgment of
raping his niece Aileen. The judgment made reference to the
fact that it was the act of rape that got the niece pregnant
and for here to consequently bear a child.
So, the information, the criminal complaint here stated very
well that “ tungod kay gi rape ni De Villa iyang
pagumangkon na si Aileen, nabuntis siya. Kung wala sya gi
rape, dili na mabuntis”
1:00:00 – 1:16:00 (Kemarie Manligoy)
Tungod kay gi-rape ni De Villa ang iyang pag-umangkon na
si Aileen, nabuntis siya. Kung wala siya gi-rape, dili siya
mabuntis. So, if you ask me, that is a matter that the
prosecution should prove. It is in a way an element of the
accusation. He was saying rape; got pregrant. Were it not
for the fact that she was raped, she would not have gotten
pregnant. That’s the reason right? Now, since it was never
alleged that Aileen gave birth to a full term nine month old
baby, the Supreme Court gave credence to the prosecution’s
contention that she prematurely gave birth again to an 8 old
month baby by normal delivery.
You know, I tend to get paranoid when I see patterns. How
many cases now where the alleged carnal knowledge or
rape produce an offspring after only 8 months? There is a
pattern emerging and it’s not too farfetched to think that
that could be the case.
Now, De Villa sought the conduct of a blood type test and
DNA test in order to determine the paternity of the child
allegedly conceived as a result of rape. Denied by the
Supreme Court, DNA had the DNA test conducted
independently. Okay?! The result? He is not the father of
Aileen’s child. Okay? Now, De Villa filed a petition for
habeas corpus and asked for a new trial on the ground of
newly discovered evidence. He’s not asking for a reversal of
conviction. He’s only saying that given this information that
I am not the father of Aileen’s child, I ought to be served at
least a new trial. Receive that evidence so I can prove my
innocence. Okay? It makes sense right? Here the Supreme
Court said the petition involves the remedy of habeas
corpus to seek a re-examination of the records without
asserting any legal grounds therefore. So, the Supreme
Court now is trying to be technical about it. Ginaingon sa
Supreme Court, kung mu-file ka ug habeas corpus to secure
your provisional liberty in the meantime tapos magtrial ta,
what’s your ground? What specific ground did you allege?
The Supreme Court is being technical. For all intents and
purposes, petitioner seeks a re-evaluation of the evidentiary
basis for his conviction. They are being asked to re-examine
the weight and sufficiency of the evidence in this case not on
its own but in the light of new DNA evidence that the
petitioner seeks to present in this Court. This relief it outside
the scope of habeas corpus petition which applies only in
case of denial of constitutional right. The petition for habeas
corpus must therefore fail.
Technical but kita na nagtanaw, si Devilla is not the father of
the child. Now, remember one case we’ve discussed earlier
where the SC said that pregnancy is not an element of rape.
True, it’s the mere touching of the female lavia would be
enough to consummate rape. Isn’t it a fact that the
complaint here, they alleged directly pregnancy as a result
of rape and therefore kung ang contention sa prosecutor kay
if not for the rape, Aileen would not have gotten pregnant.
That contention necessarily fails when he is able to prove
that he is not the father.
How did the SC defeat his claim? By saying that mali ang
habeas corpus na remedy. It was improper remedy. That’s
your SC students.
The issue of paternity is not central to the issue of …. The
rape of the victim is an entirely different question, separate
and distinct from the question of a father of a child. The fact
of the victim’s pregnancy and the resulting child birth are
irrelevant in determining whether or not she’s raped.
Pregnancy is not an essential element of the crime of rape.
Therefore, the DNA evidence has failed to conclusive prove
to this Court that Devilla should be discharged although
petitioner claims that the conviction was based solely on the
finding of the paternity of the child. This is not the case. Our
conviction is based on clear and convincing testimonial
evidence of the victim which was given credence by the trial
court was affirmed.
We will revisit this case of Devilla later on. There’s more to
this case than meets the eye.
Now, Herrera vs Alba, June 15, 2005. Now, petitioner here
raises the issue of whether a DNA test is a valid probative
tool in this jurisdiction to determine the …. Petitioner asks
for conditions at which DNA technology can be taken in our
judicial system and the prerequisites for the admissibility of
DNA evidence in paternity suits. Petitioner further submits
that the appellant court may abuse its discretion by
authorizing the trial court to embark on a new procedure to
determine filiation despite the absence of legislation to
ensure its reliability and integrity. One of the official
recognition as made clear in Delima vs CA, in the presence
of the legal and technical constraints in the implementation.
Petitioner maintains that the proposed DNA paternity
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Transcription based on the Lectures of
Atty. Jess Zachael Espejo
testing violates his right against self-incrimination. Now to
my mind, if you look at the last argument of the petitioner
Herrera here, he’s saying that it would violate his right
against self-incrimination. But you need to remember that
this is not a criminal case. In that alone, pataka lang. This is
not a criminal case so why are you talking about
incrimination here?! But again, he raises the same
arguments as raised before in People vs Yatar and the SC
said that despite our relatively liberal rules on admissibility,
the Trial court should be cautious in giving credence to
DNA analysis as evidence. We reiterate our statement in the
… vs Vallejo that in assessing probative value of DNA
evidence, court should consider how the samples were
collected, how they were handled, the possibility of
contaminating, the procedure followed in analyzing the
samples, whether proper standards and procedures were
followed in conducting the tests and the qualification of the
analyst who conducted the test. It is not enough that the
child’s DNA profile matches that of the putative father. A
complete match between the DNA profile of the child and
the profile of the putative father does not necessarily
establish paternity. For this reason, trial court should
require at least 99.9% as the minimum value of the
probability of paternity prior to the paternity inclusion.
Remember that if you look at the person to your left and if
you look at the person at your right, you are 99.5% the
same. And so the SC is saying that if you are going to rule
that a person is the child’s father, the probability of
parentage should at least be 99.9%. Okay? Anything less
than that should result in an exclusion or at least an
inconclusive result. W is a numerical estimate for the
likelihood of paternity of a putative father compared to the
probability of a random match to unrelated individuals. An
appropriate reference population database such as the
Philippine population database is required to compute for
W. Due to the probabilistic nature of paternity inclusions, W
will never be 100%. However, the W estimates is higher
when the putative father or mother of the child are
subjected to DNA analysis compared to those conducted of
the putative father and the child. DNA analysis that
excludes the putative father from paternity should be
conclusive proof of non-paternity. If the the value of W is
less than 99.9%, the results of DNA analysis should be
considered as corroborative evidence only. Diba we
explained this?
What’s the difference between corroborative evidence and
cumulative evidence? Corroborative lang siya. If the value
of W is 99.9% or higher then there is refutable presumption
of paternity. So, it’s disputable. It can still be refuted or
rebutted by contrary proof. This refutable presumption
should be subjected to the Vallerosa case, the one that we’ve
discussed.
Now, this to my mind a very important case, Herrera vs
Alba because this W and the values assigned by the SC
ultimately found their way into the rules on evidence. As in
the same, 99.9% or higher. It’s like the SC copied verbatim
from the case of Herrera vs Alba.
And? What about self-incrimination? Section 17 Article III of
the 1987 constitution provides that no person shall be
compelled to be a witness against himself. Petitioner asserts
that obtaining samples for DNA testing violates his right
against self-incrimination. Petitioner ignores earlier
pronouncements that the privilege is applicable only to
testimonial evidence.
Now, let’s try to summarize so far the two cases that to my
mind are important for now. Both of them referring to right
against self-incrimination. The first case is People vs Yatar
where the Supreme Court here said that an accused in a
criminal case may be compelled to undergo drug testing,
drug typing, fingerprinting, paraffin testing to determine
guilt or innocence without violating Section 17 Article 3 of
the 1987 Constitution or the right against self-incrimination.
Why? These are purely physical or mechanical acts.
Now, let’s relate that to the case of Herrera vs Alba. How
does that apply or what is the moral lesson that we could
learn? That in criminal cases, there can be compulsory DNA
testing. That’s precisely what the SC said. Pwede ka pugson
na muhatag ug biological sample because anyway, it does
not violate any constitutional right and now, by necessary
implication, the case of Herrera vs Alba would also
therefore be the sufficient basis to compel DNA testing or
the giving of biological samples in paternity cases. So kung
pwede kang i-compel in criminal cases, that’s People vs
Yatar. Kung pwede ka i-compel in paternity suits, that’s
Herrera vs Alba. You can’t refuse anymore. You can be
compelled.
1:16:01-1:28:18 (Lara Delos Santos)
By necessary implication, the case of Herrerra vs Alba, shall
be the sufficient basis to compel DNA testing or the giving
of biological samples in paternity cases.
So kung pwede ka icompare in criminal cases, that’s People
vs. Yatar. Kung pwede ka icompel in paternity suits, that’s
Herrera vs. Alba.
Now, Agustin vs. Court of Appeals (July 2005):
The petitioner in this case would not submit to DNA testing
to determine paternity on the ground that to undertake it
against his will would violate his right to privacy and right
against self-incrimination. In the same manner as it was
held to be in Herrera vs. Alba. And here the SC said, now
confirming what is said in Herrera vs. Alba, that
compulsory DNA testing is allowed in a paternity suit. The
Sc said:
Petitioner’s invocation of his right to privacy fails to persuade us.
In Ople v. Torres, where we struck down the proposed national
computerized identification system embodied in Administrative
Order No. 308, we said:
In no uncertain terms, we also underscore that the right to privacy
does not bar all incursions into individual privacy. The right is
not intended to stifle scientific and technological advancements
that enhance public service and the common good... Intrusions
into the right must be accompanied by proper safeguards that
enhance public service and the common good.
Historically, it has mostly been in the areas of legality of searches
and seizures, and the infringement of privacy of communication
where the constitutional right to privacy has been critically at
issue.
Petitioner’s case involves neither. His hollow invocation of his
constitutional rights elicits no sympathy here for the simple reason
that they are not in any way being violated. If, in a criminal case,
an accused whose very life is at stake can be compelled to submit
to DNA testing, we see no reason why, in this civil case, petitioner
herein who does not face such dire consequences cannot be ordered
to do the same.
Three cases: People vs. Yatar, Herrera vs. Alba, and now the
case of Agustin vs. CA.
48
 EVIDENCE
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Transcription based on the Lectures of
Atty. Jess Zachael Espejo
What’s the end result? What is the postulate that we need to
remember? DNA testing can be compelled whether in
criminal cases or paternity suits.
Now, People vs. Macapal (July 2005):
The Accused was prosecuted for allegedly raping a 23-year-
old mental retardate. She got pregnant and bore a child.
Macapal was convicted by the trial court. On appeal,
Macapal argued that he was deprived of his right to fully
defend himself in light of the trial court's denial of his
'MOTION FOR DNA TEST’ wherein he raised, as main
issue, whether he fathered the victim's child. Once again,
Macapal supposes that, if he is not the father of the child, he
is not guilty of the rape which led to the victim’s pregnancy
and subsequent childbirth. The Supreme Court took the
same stance it had in Penaso and De Villa and ruled that:
The identity of the father of a rape victim's child is non-issue in a
charge for rape, the impregnation of the victim not being an
element of the offense.
More importantly, it should be pointed out that these consolidated
cases are criminal cases for rape, not civil actions for paternity or
filiation. The identity of the father of the victim's child is a non-
issue. Even her pregnancy is beside the point. What matters is the
occurrence of the sexual assault committed by appellant on the
person of the victim on four separate occasions.
Appellant's act of committing, along with his parents, in the
Agreement forged with the victim while the case was on
preliminary investigation before the Prosecutor's Office 'to
shoulder one-half (1/2) of the expenses to be incurred by [the
victim] . . . in connection with the delivery of her child is the coup
de grace that dissipates any nagging doubts on his guilt.
So sa ibang kaso, fathers are scared of DNA testing. But
here, Macapal is asking for it but was denied by the trial
court. What’s the effect?
The identity of the father of a rape victim's child is non-issue in a
charge for rape, the impregnation of the victim not being an
element of the offense.
Pila na ni na kaso? Kadaghan na wherein the SC is saying
that in rape cases, pregnancy is not an element of the
offense. Wala siya’y apil. It’s simply carnal knowledge.
But in my mind man gud, it’s very simple. Somebody raped
someone. There is a biological sample. He left semen in the
vagina of the victim. Don’t you think it’s more towards
determining the guilt of the accused beyond reasonable
doubt if the accused is given the ability to eliminate himself
as the source of the biological sample left in the body of the
victim. To my mind, is that not enough reasonable doubt?
Specially so if the prosecution alleges that it is the very rape
that caused the victim to be pregnant.
O let’s say wala nabuntis. He just left the semen inside.
During trial, doesn’t he have the right to have himself tested
to determine if iyaha ba jud tong semilia. Why are courts
reluctant? And why would the courts be relying on eye
witness identification rather than scientific evidence?
The truth of the matter is I cannot relate. I don’t handle rape
cases. But the student of the law in me would always
question. Why is the SC reluctant and rash in ruling that
pregnancy is not an element of the offense. When in fact, a
negative DNA result would be enough reasonable doubt to
the guilt of the accused.
But in this case there was also an agreement where the
accused agreed to shoulder ½ of the expenses to be incurred
by the victim in connection with the delivery of the child.
And that is an implied admission of guilt. At least in this
case there is this justification but in other cases, I don’t
know.
Now we have the case of People vs Rayles (July 2007):
Accused-appellant would have this Court credit him for having
insisted that a DNA test be conducted on AAs daughter. He
claims that had he raped the victim and fathered her child, he
would not have the nerve to challenge the result of a DNA test, as
such procedure would definitely reveal whether he is the father or
not.
Pregnancy and the subsequent birth of her child are not elements
of the crime of rape. Moreover, non-paternity of the appellant, if
that be the case, will not necessarily negate the crime of rape as
positively proved and established by AAs credible testimony.
There may or may not be conception after the commission of the
crime of rape because the offense may be consummated even
without full penetration or even complete ejaculation on the part
of the assailant. We have time and again stressed that among the
most important consideration in a rape case is the credible
testimony of the victim. We have repeatedly held that when a
woman says she had been raped, her declaration alone is all that is
necessary to show that she had indeed been raped and her sole
testimony is sufficient if it satisfies the exacting standard of
credibility needed to convict the accused.
The accused here is actually bluffing the court. “I’m not
afraid of DNA testing. Sige, magpa DNA ako. Pag positive
di man nako ideny ba. Pag negative, eh di wala koy sala.”
The SC is adamant in saying that “pregnancy is not an
element of rape.”
JULY 25, 2018
00:00:01-00:10:00 (Lara Delos Santos)
The first thing I’d like to discuss with you tonight is
something that you might relate to. It’s….
IN RE: Petition to take the 1999 Bar Exams
A bar candidate by the name of Julius Cesar passed the
1999 Bar Examinations but was not allowed to take the
lawyer’s oath. A Letter-Complaint was filed before the
Office of the Bar Confidant by a certain Tuesday Castro
charging him with Immorality and Grave Misconduct.
Castro alleged that she and petitioner were former lovers
that she bore him a son named Michael Angelo Castro on
May 5, 1999. The issue brought before the Supreme Court
was whether Cesar possesses the good moral character
required to be admitted to the Philippine Bar.
Complainant presented evidence tending to show that
petitioner does not possess such character since he refused
to give financial support to a child he has legally
acknowledged to be his own.
As expected, Cesar claimed otherwise. Aside from the
allegation that he was merely forced into acknowledging
paternity of Michael, he wanted to remove first his
reasonable doubts regarding the child’s paternity through
DNA Testing. Cesar promised to abide with the result of
the DNA test and to give financial support as religiously as
before, even more, if Michael was proved to be his son.
Strangely, however, Tuesday refused to undergo DNA
testing.
Hence, the Supreme Court ruled:
We take judicial notice of the fact that DNA typing is fast
becoming an important procedure not only in the field of medical
science but in criminal law and paternity disputes as well.
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Transcription based on the Lectures of
Atty. Jess Zachael Espejo
Considering the foregoing and the fact that petitioner promised to
abide by the result of the DNA test as well as to shoulder the
expenses therefor, we find petitioner's proposal for a DNA
testing to be quite reasonable and complainant's aversion to the
test surprising. If her claim that petitioner fathered her child is
really true, she has no reason to fear the result of the test for it
would be another evidence in her favor. Moreover this case
should be decided on a strong foundation of truth and justice
rather than on blind adherence to prima facie rules.
Finding the proposal of petitioner for DNA testing at his expense
to be fair and reasonable, unless the test is conducted and the
results thereof submitted to this Court within forty-five (45) days
from notice hereof, the Court will be constrained to grant the
petition of JULIUS R. CESAR to be allowed to take his oath as a
lawyer and to be admitted to the Philippine Bar.
So baliktad ta karon because the usual situation is it’s the
father who is reluctant from taking the DNA testing because
it might be confirmatory of something. So here. Siya pa jud
ang naga insist. Ang babae ang dili ganahan.
So what the SC is saying is that naay mga in-ani na kaso na
pwede nato gamitan ng DNA and actually we take judicial
notice of the fact that this is a useful tool and is something
that can be used to solve this kinds of disputes.
Kay tinuod man gyud if she claims na atty cesar here is the
father , dili sya mahadlok na adunay mga variants. Para sa
kanya wala mahitabo na variants kay iyaha man jud na
anak.
There was np DNA testing that happened in this case. But,
it’s enough for the SC to say na dili siya reluctant eh. He
was confident about it and you know all that is well, ends
well. He eventually became a lawyer.
So what was the key moment for him? He was so confident
to have the DNA test but the mother didn’t want to.
So after 12 years of cases involving DNA evidence, the
Supreme Court finally came up with the rule on dna
evidence and promulgated A.M. No. 06-11-5-SC (2 October
2007), or the RULE ON DNA EVIDENCE, which took effect
on October 15, 2007.
Let’s now go to the provisions…
Section 1 provides that the rule “shall apply whenever DNA
evidence, as defined in Section 3 hereof, is offered, used, or
proposed to be offered or used as evidence in all criminal and civil
actions as well as special proceedings.”
In Criminal Actions
DNA evidence can be used in criminal actions involving
unlawful killings such as parricide, murder, homicide, and
infanticide.
So if you are charged with murder for example and then
you are accused of killing your child or your parent, so that
would be parricide or infanticide. So you can deny “di mana
nako paryente. Di mana nako papa.” So it can’t be parricide.
DNA evidence can perhaps be useful to establish
relationship, being either an element of the offense or a
mitigating circumstance.
Also, as we have already observed, many of the cases
decided by the Supreme Court that refer to DNA evidence
had been in rape cases as well, and kidnapping, and several
cases as well.
What about adultery? Remember adultery is committed by
any married woman who shall have sexual intercourse with
a man not her husband and by the man who has carnal
knowledge of her knowing her to be married, even if the
marriage be subsequently declared void.
Suppose that, the offended husband may allege that his
unfaithful wife became pregnant by another man. DNA
evidence can be used to establish that the child is not the
husband’s and therefore, that his wife had sexual
intercourse with another man.
Dili man pwede immaculate conception. There has to be
some doing with another man. It brings to mind the old
case of VILLAFLOR versus SUMMERS.
Villaflor vs. Summers
Villaflor was charged with the crime of adultery. The trial
court judge ordered her to subject herself to a physical
examination to see whether or not she was pregnant and
thus determine the crime of adultery being charged to her.
She refused such physical examination, interposing the
argument that such examination was a violation of her
right against self-incrimination. She was found in contempt
of court and was ordered to be committed to Bilibid Prison
until she should permit the medical examination required
by the court. In ruling against her contention, the Supreme
Court declared that:
The constitutional guaranty, that no person shall be compelled in
any criminal case to be a witness against himself, is limited to a
prohibition against compulsory testimonial self-incrimination.
An ocular inspection of the body of the accused is permissible.
Let us suppose that the husband was unable to copulate
with the wife, cannot have sex. Maybe he is impotent, basta
there’s physical impossibility for the husband to copulate
with the wife. And then the wife gets pregnant. Or it is
possible that the husband was elsewhere—Alibi. Like sea
man noh. It’s just so ironic that the sea man cannot be the
source of the semen. (haha)
So here petitioner refused such physical examination,
interposing the argument that such examination was a
violation of her right against self-incrimination. And of
course the SC said it is not part of the prohibition. It is only
limited to prohibition against compulsory testimonial self-
incrimination.
Again it is limited to mechanical acts. And we can apply
that now to DNA testing. Assuming, that a case with a
similar factual milieu as that of Villaflor vs. Summers would
come about, it will not only be ocular inspection of the body
that would determine pregnancy. You could also determine
if the child was born out of this ilicit relationship with
another man. So how useful DNA is in this date of age.
And we remember in the case of Agustin, DNA testing and
its results and our ruling in Yatar are now similarly
acceptable.
So we go back to our previous discussion, when we talk
about criminal actions, DNA testing can be compelled. It’s
as simple as that. Why? Because it’s a purely physical and
mechanical act. And if you remember the case of Herrera vs.
Alba, the Supreme Court held that if you can compel in a
criminal case to give a DNA sample or a blood sample to
undergo paraffin testing, etc., with all the more reason that
he can be compelled in a civil case where your liberty is not
actually in jeopardy.
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Transcription based on the Lectures of
Atty. Jess Zachael Espejo
10:01 to 20:00 (Kemarie L. Manligoy)
If you remember the case of Herrera vs Alba, the SC also
said that if you can be compelled in a criminal case to give a
DNA sample, or a blood sample, to undergo paraffin test
and so on, all the more reason that you can be compelled in
a civil case where your liberty is not actually in jeopardy. So,
pwede siya na ma-compel. Now, just a little bit of cross-
reference here regarding presumption of legitimacy that you
can find in the various provisions of the civil code that
children born or conceived of a child during the marriage
are presumed legitimate. There’s always that bias by the law
that favors legitimacy children regardless of how … the
circumstances can be.
Now, Article 166, the legitimacy of a child may be
impugned only on the following grounds like no. 2 that for
biological or scientific reasons, the child could not have been
that of the husband except in the instance provided in the
2nd paragraph of Article 164 which talks about artificial
insemination. So, biological or scientific reasons. What could
be a better scientific reason that based on the DNA
evidence, the child could not have been fathered by the
husband. So, that is one scientific reason.
Article 167, the child shall be considered legitimate although
the mother may have declared against its legitimacy or may
have been sentence as an adulteress. Again, there’s that
presumption of legitimacy even if the mother herself has
declared against its legitimacy by saying that kining bataa ni
dili mani anak sa akoang bana. Akoa ning anak pero dili ni siya
anak sa akoang bana. Just weird diba?
Take note that the presumption of legitimacy of children
born during the marriage is simply or merely disputable.
It’s not conclusive. It is subject to contrary proof. While the
finding of adultery does not by itself rebut the presumption
of legitimacy and as I’ve previously noted, DNA evidence
will therefore be presented to prove that by biological or
scientific reasons the child could not have been that of his
own.
In civil actions, the rule on DNA evidence does not even
distinguish between ordinary and special civil actions and
therefore it is possible to apply the rule to special civil
actions such as actions for support. Remember that support
based on the family code provisions would actually bent on
family relationships. You will not be obliged to give support
to a person na dili mo related. You are obligated to give
support to someone whom you are not related. So if that
boils down to the determination of relationship between the
person claiming support and a person being obliged to give
support, DNA evidence can therefore be used.
In special proceedings, remember the definition of a special
proceeding. A remedy by which the parties seek to establish
a status or right of a particular fact. An example of that
would be paternity suits. DNA testing would actually be
quite useful in paternity suits. What else? Habeas corpus
proceedings Rule 102 where habeas corpus may be resorted
to in cases where the rightful custody of any person is
withheld from the person entitled thereto. It is proper legal
remedy to enable parents to retain the custody of a minor
child such as in the case of Salvalle vs Herrera in the case of
kidnapping. Now, they wanted to find out if ang kadto
bang bata na nakidnap a long time ago is really their child.
How they found it out? They can resort to DNA testing.
Section 2, application on the rules of evidence, remember
that the rules of court and other pertinent rules on evidence
shall apply which means that are supposed to go back to
what we learned relating to the different types of evidence
and the characteristics of object evidence and also
characterize what DNA evidence is all about. We know it to
be an object or physical evidence and based on the case of
People vs Larapie, it’s evidence of the highest order. It
speaks more eloquently than a hundred witnesses according
to the Supreme Court. Object or physical evidence like hair,
saliva, bone and etc. A biological sample is an object
evidence itself but remember that while it is object or
physical evidence, it is one that can only be appreciated
through the aid of expert testimony because okay, the blood
will not testify. The semen will not testify. So for all intents
and purposes, you need to remember, expert evidence or
expert opinion, opinion evidence lang na siya which general
rule, under the rules of court, is generally not allowed. We
are not allowed to give an opinion in court. The only
opinion that matters in court is the court’s opinion. So what
we think about the matter actually does not matter.
Remember also that object evidence does not lie and the
expert, the person who processes the DNA evidence, and
testifies about it. So, object evidence by itself is reliable but
the matter of collecting, processing and preserving it may be
prone to error. It is object evidence that can only be
appreciated by the aid of expert testimony.
So, based on Section 2, we apply the Rules of Court
suppletorily to cases covered by the Rule on DNA evidence.
As previously mentioned, it includes Rule 130 Section 49
which talks about the opinion of expert witnesses. So, if the
opponent admits that the witness is an expert, he can
immediately proceed to his testimony and give his opinion.
We don’t have a problem there. But if the opponent does not
admit that the person testifying is an expert, before he can
testify, he must firstly qualify. That’s the process as to
qualifying a witness. It means the act of proving that the
witness is an expert. This is done by making him testify
through preliminary questions as to his training, education
and expertise. We’ll go to that when we reach Section 49.
For now diha lang sa ta.
Let’s go to Section 3, definition of terms. I just want you to
remember what these terms are. No need to memorize.
Okay?! What is a sample, DNA, DNA evidence, DNA
profile or the genetic information derived from DNA testing
of a biological sample obtained from a person which
biological sample is clearly identifiable as originating from
that of the person. And DNA testing, what is the meaning?
A verified, credible and scientific method which includes
the extraction of a DNA profile of a sample, the generation
of DNA profiles and the comparison of the information
obtained from the DNA testing of biological samples for the
purposes of determining the reasonable certainty of whether
or not the DNA obtained from two or more distinct sample
originates from the same person. That is direct identification
or if the biological samples originated from related persons,
kinship analysis. Because normally, you have ½ of the DNA
of your mother and ½ of the DNA of your father. Right? So
you can be proven to be related to your mother and
independently, you can be proven to be related to your
father. As simple as that. And finally, you have this term,
probability of parentage. It means that the numerical
estimate or the likelihood of parentage of the putative
parent compared to the probability of a random match of
two unrelated individuals in a given population. Just
remember these terms.
Let’s go to Section 4, Application for DNA testing order. The
appropriate court may, at any time, either motu proprio or
on application of any person who has a legal interest in the
matter in litigation, order a DNA testing.
20:01-30:00 (Gillian Grancho)
Sec. 4. Application for DNA Testing Order. – The
appropriate court may, at any time, either motu proprio or
51
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Transcription based on the Lectures of
Atty. Jess Zachael Espejo
on application of any person who has a legal interest in the
matter in litigation, order a DNA testing. Such order shall
issue after due hearing and notice to the parties upon a
showing of the following:
1. A biological sample exists that is relevant to the case;
2. The biological sample: (i) was not previously subjected
to the type of DNA testing now requested; or (ii) was
previously subjected to DNA testing, but the results
may require confirmation for good reasons;
3. The DNA testing uses a scientifically valid technique;
4. The DNA testing has the scientific potential to produce
new information that is relevant to the proper
resolution of the case; and
5. The existence of other factors, if any, which the court
may consider as potentially affecting the accuracy of
integrity of the DNA testing.
This Rule shall not preclude a DNA testing, without need of
a prior court order, at the behest of any party, including law
enforcement agencies, before a suit or proceeding is
commenced.
If you looked at the paper that I wrote, I tried to make sense
of the term “Legal interest”. But it’s more on Civil
Procedure the evidence; it’s more of legal standing actually.
Let’s skip that for now.
In reference to Sec 4(b), remember that there are many types
of DNA testing, you have STR,etc.
In reference to Sec 4(c), it somehow mirrors Daubert, that it
must have gain acceptance in the scientific community.
In reference to the last paragraph, now what do we
immediately relate this to? Having a DNA testing despite
the fact that there has been no case commenced, there’s no
case pending in court. Mura sya ug mode of discovery
under Rule 23-29 of the Rules of Court. In a way, there’s a
mode of discovery under the Rule on Evidence.
Sec. 5. DNA Testing Order. – If the court finds that the
requirements in Section 4 hereof have been complied with,
the court shall –
1. Order, where appropriate, that biological samples be
taken from any person or crime scene evidence;
2. Impose reasonable conditions on DNA testing designed
to protect the integrity of the biological sample, the
testing process and the reliability of the test results,
including the condition that the DNA test results shall
be simultaneously disclosed to parties involved in the
case; and
3. If the biological sample taken is of such an amount that
prevents the conduct of confirmatory testing by the
other or the adverse party and where additional
biological samples of the same kind can no longer be
obtained, issue an order requiring all parties to the case
or proceedings to witness the DNA testing to be
conducted.
An order granting the DNA testing shall be immediately
executory and shall not be appealable. Any petition for
certiorari initiated therefrom shall not, in any way, stay the
implementation thereof, unless a higher court issues an
injunctive order. The grant of DNA testing application shall
not be construed as an automatic admission into evidence of
any component of the DNA evidence that may be obtained
as a result thereof.
In reference to Sec 5(a), now we go back again in the basic
postulate that I want you to remember, you can always be
compelled to undergo DNA testing if you are a party to
the case. What case? It doesn’t matter. It can be criminal,
civil or it can be a special proceeding. It can be compelled.
In reference to Sec 5(c), it could be that the DNA sample is
quite minute, gamay na lang jud kaayo ang nabilin. It could
be just traces found in the crime scene that cannot be
retested.
In the US, I read in an article that no matter how small the
sample is, they can replicate it by cloning. They can clone it,
so bisang 1 drop lang, pwede sya ma 2 drops. I don’t know
if you can do that here in the Philippines.
“An order granting the DNA testing shall be immediately
executory and shall not be appealable”.
So if you’re going to question it what are you
gonna do? You’ll have to file a petition for
certiorari. Just imagine how difficult. You cannot
appeal.
“Any petition for certiorari initiated therefrom shall not, in any
way, stay the implementation thereof, unless a higher court issues
an injunctive order.”
So, useless gihapon sya, unless you, as law
practitioners, if you’re going to question an order
granting a DNA test, you have to file an action for
certiorari and you have to apply for a writ of
preliminary injunction or temporary restraining
order.
The Supreme Court is now teaching you what to
do.
What’s the effect of filing of a petition for certiorari
under Rule 65? It shall not, in any way, stay the
implementation thereof, unless there’s an
injunctive relief.
“The grant of DNA testing application shall not be construed as
an automatic admission into evidence of any component of the
DNA evidence that may be obtained as a result thereof.”
Remember that with respect to admissibility,
there’s no guarantee that it will be admitted into
evidence by the fact that the DNA testing has been
granted by the order by the court. Why?
Reasons:
1. DNA evidence, as any other type of evidence,
must pass the basic tests of relevancy and
competency;
2. DNA evidence must still be formally offered in
order for the court to consider it; and
3. A witness must still testify as to the result of the
test.
Those are the reasons based on the basic principles
that we already learned related to evidence.
Again, DNA testing order is like a mode of discovery. So, it
is a built-in mode of discovery in DNA evidence. But take
note,
 In modes of discovery, the results are not
automatically admitted into evidence, as a general
rule. They have to be formally offered to be
admitted. In the case of a deposition, the deponent
must still testify in court, subject to certain
exceptions.
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Transcription based on the Lectures of
Atty. Jess Zachael Espejo
We will learn later on that when the deponent does
not come to court to repeat the contents of his
deposition, it will be stricken off, as a general rule.
It will not be admitted into evidence because it is
considered as hearsay. Hearsay ang tawag nato ana
because there’s no opportunity for cross-
examination.
Remember also that there are exceptions, when the
deponent is already dead or unable to testify, etc.
we explain later on when we go to testimonial
evidence.
 Under modes of discovery, we have Rule 28
(Physical and Mental Examination of Persons). The
Court may actually order that you undergo a
physical examination by the doctor to determine
injury, or mental examination. And in Section 4,
there is that waiver of privilege.
Rule 28, Section 4. Waiver of privilege. – By requesting and
obtaining a report of the examination so ordered or by
taking the deposition of the examiner, the party examined
waives any privilege he may have in that action or any other
involving the same controversy, regarding the testimony of
every other person who has examined or may thereafter
examine him in respect of the same mental or physical
examination.
What privilege are we talking about? We are talking about
physician-patient privilege communication. You go to a
doctor, and in order to encourage the patient to reveal
everything to his doctor, everything that happens there, the
results of test, it is supposed to be confidential.
A doctor cannot normally divulge medical information to a
third person, it remains a matter between the doctor and the
patient.
What if it is about DNA evidence?
I present to you a hypothetical case, what if JZE married
Maja and had an affair with Bangs. Bangs got pregnant and
delivered a baby but JZE is not sure about the paternity of
the child. So he privately went to Dr. Hayden to have the
DNA testing in secret. It turns out that he is actually the
father of the child.
Now, ordinarily, under the physician-patient privilege
communication rule, Dr. Hayden cannot be compelled to
divulge that DNA test. And because it will tend to blacken
the reputation of the patient, the physician-patient privilege
communication rule will apply.
00:30-0:40 (Until Section 10) (Jennifer Lim)
….The physician-patient privilege communication would
apply. However, suppose the DNA test was made in a civil
case, filed by Bangs against JZE, Bangs applied for and may
be issued DNA testing. Take note that the same DNA test
been conducted under Rule 28, the same rules would apply
for the waiver of conditions of DNA testing.
However, under the Rule on DNA Evidence, there is no rule
on waiver or on physician-patient privilege. In fact, in
several cases decided by the Supreme Court, that the person
could be compelled to undergo DNA testing in civil or
criminal cases without violating the right against self-
incrimination.
Can the physician who conducts the DNA testing, according
to the order of the court, be compelled to divulge the
results? YES. Why? The physician-patient privilege
communication rule does not apply in court-ordered testing.
There’s no such thing as privilege.
Let’s go to Section 6 which, to my mind, is the most
controversial.
Section 6. Post-conviction DNA Testing. – Post-conviction
DNA testing may be available, without need of prior court
order, to the prosecution or any person convicted by final
and executory judgment provided that a biological sample
exists,
such sample is relevant to the case, and the testing would
probably result in the reversal or modification of the
judgment of conviction.
So, it might affect the judgment of conviction. Remember,
we have discussed a lot of cases for post-conviction DNA
testing. Yet, for some years, the Supreme Court has been
reluctant in allowing requests for DNA tests. We have
Penaso, De Villa, Rayle, Andal, and Macapal prior to the
promulgation of the Rules on DNA Evidence. In all those
cases, the Supreme Court denied the requests. Why?
Because it was stubborn in denial or that the discharge of
semen is not an element of rape.
What the Supreme Court favored were testimonies that
identified the accused as to the crime. But we have yet to
figure out if, pag promulgate ba sa Supreme Court on DNA
Evidence, mag change na ba ni or it’s still the old song the
Supreme Court has been singing that pregnancy is not an
element of rape.
Rape and DNA Evidence in Post-conviction DNA Testing.
Foremost on that would be People vs. Umanito (October 6,
2007).
.
PEOPLE v UMANITO (2007 & 2009)
What happened here was that there was already a judgment
convicting Umanito of rape. The SC, when it promulgated
the Rule on DNA Evidence, gave it retroactive effect and
applied it to case of Umanito. Such that the SC, through
Justice Tinga, remanded it to the lower court to determine
whether or not kinahanglan ba ug DNA. So, was there a
DNA match? The result when it came back to the Supreme
Court was 99.9999% match.
Given that the results of the Court-ordered DNA testing
conforms with the conclusions of the lower courts, and that
no cause is presented for us to deviate from the penalties
imposed below, the Court sees no reason to deny Umanito’s
Motion to Withdraw Appeal.
Facts: The instant case involved a charge of rape. The
accused Rufino Umanito was found by the RTC
guilty beyond reasonable doubt of the crime of rape. The
alleged 1989 rape of the private complainant, AAA, had
resulted in her pregnancy and the birth of a child hereinafter
identified as “BBB.”
In view of that fact, as well as the defense of alibi raised by
Umanito, the Court deemed uncovering whether or not
Umanito is the father of BBB.
The DNA analysis on the Buccal Swabs and Blood stained
on FTA paper taken from [AAA], [BBB], and Umanito,
to determine whether or not Umanito is the biological father
of [BBB], showed that there is a Complete Match in allof the
15 loci tested between the alleles of Umanito and [BBB];
That based on the above findings, there is a 99.9999%
probability of paternity that Umanito is the biological father
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Transcription based on the Lectures of
Atty. Jess Zachael Espejo
of BBB.
RULING: Court resolved, for the very first time, to apply
the then recently promulgated New Rules on
DNA Evidence (DNA Rules). The DNA testing has evinced
a contrary conclusion, and that as testified to by
AAA, Umanito had fathered the child she gave birth to on 5
April 1990, nine months after the day she said she
was raped by Umanito.
The disputable presumption that was established as a result
of the DNA testing was not contradicted and overcome by
other evidence considering that the accused did not object to
the admission of the results of the DNA testing (Exhibits
“A” and “B” inclusive of sub-markings) nor presented
evidence to rebut the same.
By filing Motion to Withdraw Appeal, Umanito is deemed
to have acceded to the rulings of the RTC and the Court of
Appeals finding him guilty of the crime of rape, and
sentencing him to suffer the penalty of reclusion
perpetua and the indemnification of the private
complainant in the sum of P50,000.00.
Gi-withdraw kay match man gihapon. But, mablame ba
nimo siya? He was about to be convicted and spend his
entire life in prison. Last ditch effort. Read the case of
Umanito (April 16, 2009) and I want you to take note of the
procedure taken by the regional trial court, because that was
the first time the court applied the rule on DNA Evidence. It
would be quite instructive
PEOPLE v MAGLENTE
June 28, 2009
Facts: Complainant alleges that Maglente, her biological
father, had subjected her to sexual abuse as early as 1997,
when she was still nine (9) years old, until 13 July 2002,
when she reached 14 years of age. As a result of her father’s
molestation, she became pregnant and delivered a baby boy
on October 1, 2002, which she gave up for adoption. On
cross-examination, private complainant testified that she
was willing to have her baby undergo DNA testing but the
baby’s whereabouts were unknown to her.
Ana ang accused, dapat nay DNA kay for all we know, dili
match amoang DNA. Now, wala man ta kabalo asa ang
bata.
Held: Even if the DNA tests were conducted and it
established that appellant had not fathered the child, it
would still be inconclusive to prove that appellant was not
guilty of having raped private complainant. He cannot
obtain an acquittal based on the circumstances of private
complainant’s pregnancy.
Why? Impregnation is not an element of rape. Even proof
that the child was fathered by another man does not show
that the appellant is not guilty. For the conviction of an
accused, the pregnancy of the victim is not required to be
proved, since it is sufficient that the prosecution establish
beyond reasonable doubt, as it had in this case, that the
accused had forced sexual relations with the victim.
Why is the Supreme Court so adamant even with the Rule
on DNA Evidence? Because the SC knows that:
1. Not all rapes end in pregnancy.
2. The SC has always been consistent in saying that a
woman, who has been raped, would not go to the
humiliation, for a fabricated charge of rape.
Especially so, if it is against a relative. The SC has
time and again ruled that.
*Story about sir on not accepting rape cases. I would prefer to
be defense counsel because all you have to prove is the existence of
reasonable doubt.*
What happens when the results are favorable? Let’s
suppose that after conviction, DNA testing is made and the
results are favorable to the accused? I can say that you are
not the one who fathered the child or it’s not your DNA
found on the semen sample, but you were already guilty.
What will happen? What would be the remedy, in case the
post-conviction DNA?
Section 10. Post-conviction DNA Testing – Remedy if the
Results Are Favorable to the Convict. – The convict or the
prosecution may file a petition for a writ of habeas corpus in
the court of origin if the results of the post-conviction DNA
testing are favorable to the convict. In the case the court,
after due hearing finds the petition to be meritorious, it shall
reverse or modify the judgment of conviction and order the
release of the convict, unless continued detention is justified
for a lawful cause.
A similar petition may be filed either in the Court of
Appeals or the Supreme Court, or with any member of said
courts, which may conduct a hearing thereon or remand the
petition to the court of origin and issue the appropriate
orders.
40:01 – 50:00 (Edsam Andit)
Section 10, RODE
Post-conviction DNA Testing – Remedy if the Results Are
Favorable to the Convict. – The convict or the prosecution may
file a petition for a writ of habeas corpus in the court of
origin if the results of the post-
conviction DNA testing are favorable to the convict. In the
case the court, after due hearing finds the petition to be
meritorious, it shall reverse or modify the judgment of
conviction and order the release of the convict, unless
continued detention is justified for a lawful cause.
A similar petition may be filed either in the Court of
Appeals or the Supreme Court, or with any member of said
courts, which may conduct a hearing thereon or remand the
petition to the court of origin and issue the appropriate
orders.
If the result of the post-conviction hearing testing, are
favorable to the convict, the remedy is to file a petition for
habeas corpus. And it is not the first time that we encounter
habeas corpus in the context of DNA law and jurisprudence.
Remember, we have discussed the case of IN RE DE
VILLA.
In Re De Villa
Reynaldo de Villa was sentenced to death for raping his 12-
year-old niece, Aileen Mendoza. (Imaginun nato na si
Reynaldo de Villa kay si Ian Veneracion) who had
subsequently given birth to a baby girl. De Villa had
always maintained his innocence from the very beginning,
but no paternity test had been carried out to establish
whether or not he was the father of the child.
Now, because de Villa was in priSo,n, Cora de Ungria—
she’s actually very famous right now, she’s like the Sherlock
Holmes of the Philippines, head of the DNA laboratory
analysis of UP—could not obtain a DNA sample from de
Villa directly. So,, what did she do? She did So,mething
cloak-and-dagger. Ang gibuhat niya, she enlisted the help of
the priSo,n priest. Padre. Sa atong palabas kay si Fr. Gus
kuno na. He visited de Villa carrying a sterile blade and a
blood collection vial hidden beneath his clothes. Di gud na
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pwede dapat. You can’t do that. You’re smuggling, what? A
bladed weapon! So,, di na sya dapat pwede, but he was able
to do it.
But that’s only one part of the equation. Kinahanglan
gihapon niya’g blood sample to compare with the DNA
sample already given by de Villa. So, de Ungria needed a
sample from the child who was already 10 years old daw.
De Villa’s grandSo,n, a schoolmate of Mendoza’s daughter,
was coached to organize a spitting competition in the
playground. Just imagine, noh? Uy, dinhia ta sa
playground! O, mangluwa ta! Padaghanay ta’g luwa! (LOL)
Just imagine a spitting competition. So, he collected the
girl’s spit in a cup and de Ungria used it to generate a DNA
code. So, the 2 sides of the equation is complete. Biological
sample from de Villa and biological sample from the
putative child. So, the results confirmed that de Villa was
not the girl’s father.
But the Supreme Court refused to consider the new
evidence and So, he remained on death row. So, they have
no choice now but to file a petition for habeas corpus, citing
that de Villa was wrongfully convicted. The Supreme Court
said, “Petitioner invokes the remedy of habeas corpus to
seek a re-examination of the records without asserting any
legal grounds therefor. Unsa man gyud diay ning mga legal
grounds ani?
 There has been a deprivation of a Constitutional
right resulting in the restraint of the liberty of the
person.
 The Court has no jurisdiction to impose the
sentence.
 An excessive penalty has been imposed as such
sentence is void as to such excess.
These are the 3 grounds that the SC gave when filing for
habeas corpus questioning a conviction. And none in these
instances does it say that new evidence can be a ground to
invoke the extraordinary writ of habeas corpus. Further, the
SC said that the petitioner invokes the writ to assail a final
judgement of conviction without providing a legal ground
thereof.
The SC is merely saying here na “banga kaayo imong
abogado!” Ngano man siya nag file ug writ of habeas
corpus without citing a legal ground? So, it is actually a
denial of the issuance of the writ of habeas corpus on the
ground that you did not properly pray for it. That’s what
the SC is saying. It is based on technicality.
So, has De Villa now been abrogated by Sec. 10? Because
Sec. 10 is now saying that favorable results in DNA testing
can now be used as a ground for habeas corpus. So, in a
way, it is a reversal. Tama ba?
Not really. Because it is logical to assume in this case that
had the petition had a proper ground and been properly
invoke and prayed for, a different remedy might have
issued.
Take note of the following pronouncements in the De
Villa case:
 The denial of a Constitutional right was not alleged
by the petitioner. Hence, how can there be a denial
of a Constitutional right when it was not alleged?
That was the reason why the petition was denied.
 The petitioner invokes a remedy to seek a re-
examination of the records of In re: De Villa
without invoking a proper legal ground.
TAKE NOTE!!!
You have to take note now that Sec. 10 can now be a viable
legal basis for habeas corpus by the direct provision of law.
So, even if you have already been convicted and you were
applying for a post-conviction DNA testing which was
granted, and later on obtained a favorable result, even if it
has no bearing or no relation to the 3 legal grounds
enumerated by the SC for habeas corpus, you can now
invoke Sec. 10 as a ground by direct provision of law under
the Rules on DNA evidence.
So, What the SC said before is that the relief (post DNA
testing) is outside of the scope of the writ of habeas corpus
petition, is now to be considered as officially abrogated by
the promulgation of the Rules on DNA evidence.
And you need to recall also that in the case of De Villa, the
Supreme Court’s decision not to grant to motion here was
based on the principle that pregnancy is not an element of
rape. The SC has consistently upheld this ever since the Rule
on DNA Evidence was promulgated. Maglente, Hipona,
Cabigkis, Lucero. Wa gyud. Way pag bag-o. However,
paternity or the negation thereof should be used as evidence
to exonerate the accused or convict in a rape case if it is
warranted by the factual milieu of the case. At least, that’s
what I suppose. As I told you previously, the SC need not be
so stubborn. That without looking at the facts of the case, it
would just automatically conclude that “pregnancy is not an
element of rape”.
For example, in de Villa, the complaint and the judgment
made reference to the fact that it was the act of the rape that
got the niece pregnant and for her to conceive and bear a
child. Since you alleged that, you have to prove that. Now
what happens if the DNA testing result that disproves that?
At the very least, it becomes reasonable doubt. As simple as
that.
So, the request for paternity testing was also consistent with
the defense presented at trial. The appellant’s testimony of
his incapacity for sexual intercourse due to his advanced
age was supported by his wife’s testimony. Di ba mao ni
iyahang defense? Na dili niya kaya buhaton. But there were
also allegations of multiple perpetrators or of promiscuous
behavior of the victim. More importantly, records show that
the trial court based its decision entirely on the birth of the
child. Di ba? Giingon sa lower court na because a child was
born the child was raped. You cannot now deny sexual
intercourse because in fact nabuntis. Nanganak.
In Penaso even…
50:01 – 1:00 (Dane Viola)
The criminal complaint alleged that as a result of the act, an
unwanted pregnancy resulted.
If what was alleged was that “I got pregnant because I was
raped”, if the accused was not the father, then clearly the
complainant lied. But the SC is so stubborn in saying that
pregnancy is not an element of the crime of rape. We have
to look at the factual milieu of the case and not just
stubbornly apply such doctrine.
No matter how much you argue with this escape hatch, if
the SC wants to wash its hands by saying that pregnancy is
not an element of rape, even if you are accused of estafa,
pregnancy will still not be an element of rape.
PP v Basallo
For a man who vehemently asserts his innocence, it
mystifies the mind that appellant would not exhaust all
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Atty. Jess Zachael Espejo
available avenues to prove his innocence especially DNA
testing that would conclusively prove that he is not the
father of ABC’s son who is alleged to be the fruit of his
crime.
It would be logical to assume that in the case of Basallo, had
there been a DNA testing that would conclusively prove
that he was not the father of the child, would the SC rule
that he is entitled to be acquitted? NO. The SC will still say
that pregnancy is not an element of rape.
You don’t even have to read this cases because you know
what the outcome will be. So what is the purpose of post-
conviction DNA testing when it can never successfully
assail the conviction on the simplistic ground that
pregnancy is not an element of rape.
Going back to the case of De Villa, the head of the
laboratory of UP was so convinced of the innocence of De
Villa that she marshaled international pressure which then
led Pres. GMA to pardon him, still 11 years of his life was
gone. Imagine he was 67 y.o at the time of the alleged rape
and when he was pardoned he was already 78 and
definitely he cannot rape anymore.
It’s not as if all convictions are correct convictions, there are
a lot of wrongful convictions. Realizing this, Pres GMA
signed RA 9346 once again abolishing the death penalty.
There’s no use actually, based on jurisprudence no
conviction was ever overturned by a DNA test done post-
conviction.
Sec. 7. Assessment of probative value of DNA evidence. – In
assessing the probative value of the DNA evidence
presented, the court shall consider the following:
a. The chair of custody, including how the biological
samples were collected, how they were handled,
and the possibility of contamination of the
samples;
b. The DNA testing methodology, including the
procedure followed in analyzing the samples, the
advantages and disadvantages of the procedure,
and compliance with the scientifically valid
standards in conducting the tests;
c. The forensic DNA laboratory, including
accreditation by any reputable standards-setting
institution and the qualification of the analyst who
conducted the tests. If the laboratory is not
accredited, the relevant experience of the
laboratory in forensic casework and credibility
shall be properly established; and
d. The reliability of the testing result, as hereinafter
provided.
e. The provisions of the Rules of Court concerning
the appreciation of evidence shall apply
suppletorily.
f. This mirrors almost completely the SC ruling in the
case of PP v Vallejo.
g. Sec. 8. Reliability of DNA Testing Methodology. –
In evaluating whether the DNA testing
methodology is reliable, the court shall consider
the following:
a. The falsifiability of the principles or
methods used, that is, whether the theory
or technique can be and has been tested;
b. The subjection to peer review and
publication of the principles or methods;
c. The general acceptance of the principles
or methods by the relevant scientific
community;
d. The existence and maintenance of
standards and controls to ensure the
correctness of data generated;
e. The existence of an appropriate reference
population database; and
f. The general degree of confidence
attributed to mathematical calculations
used in comparing DNA profiles and the
significance and limitation of statistical
calculations used in comparing DNA
profiles.
This is practically what the Daubert Test is all about in the
case of PP v Yatar.
Sec. 9. of DNA Testing Results. – In evaluating the results of
DNA testing, the court shall consider the following:
a. The evaluation of the weight of matching DNA
evidence or the relevance of mismatching DNA
evidence;
b. The results of the DNA testing in the light of the
totality of the other evidence presented in the case;
and that
c. DNA results that exclude the putative parent from
paternity shall be conclusive proof of non-
paternity. If the value of the Probability of
Paternity is less than 99.9%, the results of the DNA
testing shall be considered as corroborative
evidence. If the value of the Probability of Paternity
is 99.9% or higher there shall be a disputable
presumption of paternity.
The important provision here would be paragraph (c), this
is conclusive evidence in the same way that age in certain
cases may also be proof of lack of discernment for offenders
below 9 yrs of age.
I don’t know if DNA is positive or confirmatory whether is
a win or a loss, because I know a lawyer who has undergone
multiple paternity tests and lost every time.
1:00:01 – 1:10:00 (Christian Yu)
You cannot refute a 99.99999.
Weight of Matching DNA Evidence
Ok take note Weight means reliability and probative value
of evidence.
So if the DNA samples match, the court is tasked to
determine whether the DNA testing result is reliable and
what evidentiary value it will assign to it . whether or not
the evidence is to be believed.
Relevance of mismatching DNA evidence
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And you know that in relevancy, you know the definition of
that.
Thus, under this factor, the court should consider whether
or not the fact that the DNA profiles do not match bears a
relation to the fact in issue in the case.
For example:
If the seamen found in the vagina of the victim does not
match the DNA profile of the accused. Would it be relevant
to the issue on whether or not the accused raped the victim?
PEOPLE vs. CABIGCUEZ, G.R. No. 185708, (September 29,
2010)
Where the SC still said, dili lng gihapon. Neither a positive
DNA match of the seamen nor the presence of spermatozoa
is essential in finding that rape was committed.
Wala gihapon ang gina-ingon sa SC. Nonsense lagi kaayo sa
tinuod lng.
Results of DNA testing in the light of the totality of the
other evidence:
A positive DNA match is unnecessary when the totality of
the evidence presented before the court points to no other
possible conclusion than the appellant raped the private
offended party.
A positive DNA match may strengthen the evidence for the
prosecution, but an inconclusive DNA test result may not be
sufficient to exculpate the accused, particularly when there
is sufficient evidence proving his guilt.
So you have to look at the totality. Dili lng katong DNA.
Now take note with that ruling of the SC in Cabigcuez that a
positive DNA match may only strengthen evidence of the
prosecution. Strengthen lng, it is not the ultimate
determinant of guilt. It means that DNA can merely be
circumstantial evidence for the prosecution.
So its just one of the circumstances mentioned in rule 133,
section 4 which we will discuss at the proper time.
Rule 133, Section 4. Circumstantial evidence, when
sufficient.
Circumstantial evidence is sufficient for conviction if:
(a) There is more than one circumstance;
(b) The facts from which the inferences are derived are
proven; and
(c) The combination of all the circumstances is such as to
produce a conviction beyond reasonable doubt.
Now here is an interesting case. The case of PEOPLE vs.
YAU (2014)
It is a case of kidnapping for ransom. Ok. And the whole
time of capture. Katong gi kidnap na victim. The accused
always wore a red mask. Naka-maskara all the time. So
wala gyud niya nakita.
Now when the victim was rescued. Of course naka escape
ang kidnappers pero nabilin sa crime scene ang red mask.
So DNA evidence. the dead skin cells for example. That is a
source of DNA.
So a test conducted by the Federal Bureau of Investigation
reveals that the DNA found I the mask used by private
complainant’s captor matched that of appellant Petrus Yau.
So imagine ni import pa ta sa US. Nagpa-conduct pa ta ug
test sa US Federal Bureau of Investigation.
FBI to match the DNA.
And the SC here said that, the foregoing pieces of
circumstantial evidence when analyzed and taken together
definitely lead to no other conclusion that Yau was the
author of the kidnapping for ransom and he was convicted
for the crime.
So DNA evidence there was actually used as circumstantial
evidence of the guilt of the accused for the crime of
kidnapping for ransom.
More importantly, again i already told you this, kaning
letter C, 99.9 lower or 99.9 higher.
RODE Sec. 9. on DNA Testing Results. –
In evaluating the results of DNA testing, the court shall
consider the following:
C) DNA results that exclude the putative parent form
paternity shall be conclusive proof on non-paternity. If the
value of the Probability of Paternity is less than 99.9%, the
results of the DNA testing shall be considered as
corroborative evidence, if the value of the Probability of
Paternity is 99.9% or higher there shall be a disputable
presumption of paternity.
So just to present visually to you what will happen if it is
less than 99.9%. So 99.89999 and below, it is used as
corroborative evidence. So it should be used in addition to
the traditional proof of filation.
99.9% or higher as disputable presumption of paternity.
Disputable presumption ra gihapon siya. Sounds familiar to
you? Kaning 99.9 or higher or 99.9 or lower. Yes because we
already discussed that. It was practically taking the ruling in
SC in the case of Herrera vs. Alba and turned it into a rule.
Mao ng nahitabo diri.
Diri lang, naa siyay gigamit na term “W” – Probability Of
Paternity instead of Parentage.
Okay, so 99.99% – less than 99.99%, or 99.99% or higher.
So the question is: Is DNA testing viable as a means of
proving filiation? Nay naga claim na anak nimo siya. How
does that putative child prove na anak nimo siya?
AGUILAR VS. SIASAT: (01/28/15)
Walay DNA diri but you can make that connection to DNA
evidence.
The filiation of illegitimate children, like legitimate children,
is established by
1. the record of birth appearing in the civil register or
a final judgment; or
2. an admission of legitimate filiation in a public
document or a private handwritten instrument and
signed by the parent concerned.
In the absence thereof, filiation shall be proved by
1. the open and continuous possession of the status of
a legitimate child; or
2. any other means allowed by the Rules of Court and
special laws.
“any other means allowed by the ROC and special laws”
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Atty. Jess Zachael Espejo
Then probably, the Rule on DNA Testing can be considered
as those other means. Pwede siya na ma-include diha.
Mahimo siya na other evidence, merely tending to prove
paternity aside from record of birth, a will, a statement
before a court of record, etc., is essential in order to establish
the child’s acknowledgement.
LUCAS VS. LUCAS: (2011)
Antiquated na siya na principle but the SC still continues to
apply it.
There are four significant procedural aspects of a traditional
paternity action which the parties have to face:
1) a prima facie case,
2) affirmative defenses,
3) presumption of legitimacy, and
4) physical resemblance between the putative father
and the child.
If you recall the case of Cabigquez – kadto bitaw they had to
go somewhere to do it, with the maid, gi tour pa gani niya
para lang bigyan. Just imagine. Unya nabuntis, so got
pregnant and gave birth 8 months later. Di ba mao nah siya?
Unsay gigamit didto? Physical resemblance lang. So
antiquated because a lot of people look alike, especially the
Indians, they all look alike.
Now, chismis ta gamay.
(The talk about the Kardasians – that Kourtney Kardasian
does not look like her dad.
Allegedly, OJ Simpson is her father.)
1:10:01 – 1:20:00 (Benrich Tan)
Cases Surveying DNA Paternity Suits
ESTATE OF ONG vs. DIAZ (2007)
Facts:
A complaint for compulsory recognition with prayer for
support pending litigation was filed by minor Joanne Diaz,
represented by her mother and guardian, Jinky, against
Rogelio G. Ong, before the RTC of Tarlac City.
Jinky and Rogelio got acquainted in November 1993 in
Tarlac City. This developed into friendship and later
blossomed into love. At this time, however, Jinky was
already married to a Japanese national.
From January 1994 to September 1998, Jinky and Rogelio
cohabited and lived together. From this live-in relationship,
Joanne Rodjin Diaz was conceived and born on 25 February
1998. In September 1998, Rogelio abandoned Joanne and
Jinky, and stopped supporting the child, alleging that he is
not the father of the child. While the case was pending,
Rogelio died.
So the child’s claim would be against Rogelio’s estate. The
Court held that the burden of proving paternity is on the
person who alleges that the putative father is the biological
father of the child. There are four significant procedural
aspects of a traditional paternity action which parties have
to face: a prima facie case, affirmative defenses,
presumption of legitimacy, and physical resemblance
between the putative father and child.
A child born to a husband and wife during a valid marriage
is presumed legitimate. As a guaranty in favor of the child
and to protect his status of legitimacy, Article 167 for the
Family Code provides: Article 167. The children shall be
considered legitimate although the mother may have
declared against its legitimacy or may have been sentenced
as an adulteress.
With the advancement in the field of genetics, and the
availability of new technology, it can now be determined
with reasonable certainty whether Rogelio is the biological
father of the minor, through DNA testing.
However, Rogelio has long been dead.
Issue:
Is DNA testing still possible? YES.
Ruling:
The death of the petitioner does not ipso facto negate the
application of DNA testing for as long as there exist
appropriate biological samples of his DNA.
In short, DNA can still be seen in inanimate objects.
The term biological sample means any organic material
originating from a person’s body, even if found in inanimate
objects, that is susceptible to DNA testing. This includes
blood, saliva, and other body fluids, tissues, hairs and
bones.
Thus, even if Rogelio already died, any of the biological
samples as enumerated above as may be available, may be
used for DNA testing. In this case, petitioner has not shown
the impossibility of obtaining an appropriate biological
sample that can be utilized for the conduct of DNA testing.
And even the death of Rogelio cannot bar the conduct of
DNA testing.
So the body can still be exhumed. Thankfully the body was
not cremated (where no viable DNA can be obtained).
LUCAS vs. LUCAS (2011) (Note: Digest obtained from 2016
TSN)
In a petition to establish illegitimate filiation, the SC was
confronted with the question: Is a prima facie showing of
reasonable probability of paternity necessary before a court
can issue a DNA testing order?
(What’s a prima facie case? You prove preliminarily that
there is a probability of parentage. How do you do that? So
prior to asking for a DNA testing order, you present
witnesses tending to show the traditional proof of filiation.
Nga ning-aknowledge niya na anak siya niya; nagsign siya
ug birth certificate, etc.) (Note that Section 4 of the Rule on
DNA Evidence does not mention prima facie case as a
requirement.)
HELD: In some states, to warrant the issuance of DNA
testing order, there must be a show cause hearing wherein
the applicant must first present sufficient evidence to
establish a prima facie case or a reasonable possibility of
paternity or good cause for the holding of the test.
The same condition precedent should be applied in our
jurisdiction to protect the putative father from mere
harassment suits. Thus, during the hearing on the motion
for DNA testing, the petitioner must present prima facie
evidence or establish a reasonable possibility of paternity.
(The SC is adding this as a requirement despite its absence
in Sec.4)
Notwithstanding these, it should be stressed that the
issuance of a DNA testing order remains discretionary upon
the court. The court may, for example, consider whether
there is absolute necessity for the DNA testing. If there is
already preponderance of evidence to establish paternity
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and the DNA test result would only be corroborative, the Example #2: Destierro also included, because it’s still a
the court may, in its discretion, disallow a DNA testing. sentence (restrain over liberty).

Atty JZE (from 2018 recording): Just go over this case. Nothing
much here, it’s too technical.
1:20:01 – 1:30:00 (Anton Maligad)
Sec. 11. Confidentiality. – DNA profiles and all results or
other information obtained from DNA testing shall be Destiero will still apply because it is a restraint as to your
confidential. Except upon order of the court, a DNA profile liberty.
and all results or other information obtained from DNA
In all other cases including civil cases, until such time as the
testing shall only be released to any of the following, under
decision in the case where the DNA Evidence was
such terms and conditions as may be set forth by the court:
introduced has become final and executory.
A. Persons from whom the sample was taken;
The Court may allow the physical destruction of the
B. Lawyers representing parties in the case or action
biological sample before the expiration of the period set
where the DNA evidence is offered and presented
forth. Provided, that a court order for that effect has been
or sought to be offered and presented;
secured or the person from whom the DNA sample was
C. Lawyers of private complainants in a criminal
obtained has consented in writing to the disposal of the
action;
DNA evidence. [A requirement of Preservation]
D. Duly authorized law enforcement agencies; and
E. Other persons as determined by the court. (Rules on DNA Evidence)
Whoever discloses, utilizes or publishes in any form any Sec. 13. Applicability to Pending Cases. Except as provided
information concerning a DNA profile without the proper in Section 6 and 10 hereof, this Rule shall apply to cases
court order shall be liable for indirect contempt of the court pending at the time of its effectivity.
wherein such DNA evidence was offered, presented or
sought to be offered and presented. Where the person from Just take note of the case of People vs. Umanito. (Read in
whom the biological sample was taken files a written full text)
verified request to the court that allowed the DNA testing
PEOPLE vs. UMANITO
for the disclosure of the DNA profile of the person and all
results or other information obtained from the DNA testing, In case proof of filiation or paternity would be unlikely to
the same may be disclosed. satisfactorily establish or would be difficult to obtain, DNA
Testing, which examines genetic codes from body cells of
Sec. 12. Preservation of DNA Evidence. The trial court shall
the illegitimate child and any physical residue of the long
preserve the DNA evidence in its totality, including all
dead parent could be resorted to.
biological samples, DNA profiles and results or other
genetic information obtained from DNA testing. For this
purpose, the court may order the appropriate government
agency to preserve the DNA evidence as follows: If you recall that the rule was promulgated and the Supreme
Court ordered a remand that the pleading has taken a new
In criminal cases: name.
i. for not less than the period of time that any Sec. 14. Effectivity. This Rule shall take effect on October
person is under trial for an offense; or 15, 2007, following publication in a newspaper of general
ii. in case the accused is serving sentence, until circulation.
such time as the accused has served his
sentence;

In all other cases, until such time as the decision in the case
where the DNA evidence was introduced has become final
and executory. The court may allow the physical destruction
of a biological sample before the expiration of the periods
set forth above, provided that:
 A court order to that effect has been secured; or
 The person from whom the DNA sample was
obtained has consented in writing to the disposal
of the DNA evidence.
In criminal cases (Atty. JZE: Pay attention to the time period
required):
a. for not less than the period of time that any person
is under trial for an offense; or
b. The law intends to mean periods including the case
pending appeal or automatic review before SC,
because it’s conceivable that the SC can remand
and reorder DNA testing. Thus, it should be
preserved even during that period.
SURVEY OF CASES ON DNA AND RIGHT OF
ACQUITTAL
PEOPLE vs. PASCUAL (January 20, 2009)
There is DNA testing but the result was not good, because
the specimen submitted (stained vaginal smear) and the
dirty white panty had already undergone blood testing. So
there already been prior blood testing done.
Remember: That in the DNA Testing Standard
Methodology, that if such has been subjected to previous
tests it has the result of degrading the sample.
Q: Does the result of the DNA Examination, which was
already degraded by prior testing, entitle the accused-
appellant to acquittal?
A: The Supreme Court said that “NO, you are not entitled to
an acquittal. Even in the light of a flawed procedure, that
does not entitle the appellant to an acquittal.”
PEOPLE vs. HIPONA

The appellant here argues that he should only be held liable

c. in case the accused is serving sentence, until such
for robbery and not for the Complex Crime of Rape with
time as the accused has served his sentence;
Homicide.
Example: X has been convicted of a crime carrying the
penalty of reclusion perpetua or life imprisonment.

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Atty. Jess Zachael Espejo
He cites the testimony of the prosecution witness Aida
Villora-Magsipoc, DNA expert of the NBI, that she found
the vaginal smears taken from the victim to be negative of
the appellant’s DNA.
Ruling of the SC: Convicted! It is because the discharge of
semen is not an essential element of rape. The important
consideration being no the emission of semen but the
penetration of the female genitalia by the male organ.
PEOPLE vs. CABIGCUEZ
Neither a positive match of the semen nor the presence of
spermatozoa is an essential finding that rape was
committed. The important consideration in rape cases is not
the emission of semen but the penetration of the female
genitalia by the male organ.
PEOPLE vs. LUCERO
The DNA test is not essential, while there exists other
evidence pinning down accused-appellant as the
perpetrator. Indeed, if he honestly thought that the DNA
test could have proved his innocence, he could have asked
for the conduct of said test during his trial instead of
belatedly raising it on appeal, and attempting to dictate
upon the prosecution what course of actions it should have
undertaken.
So what does “People vs. Lucero” tell you?
It tells you that if you are adamant that a DNA test would
prove your innocence, then have it done at the trial court
level and not before the Court of Appeals and not before the
Supreme Court.
LEJANO vs. PEOPLE otherwise known as the Vizconde
Massacre
Introduction: The Vizconde Massacre is the multiple
homicides of the persons of the Vizconde family on June 13,
1991 at their residence in BF Homes, Parañaque.
Estrellita, 49, had suffered thirteen (13) stab wounds;
Carmela, 18, had suffered seventeen (17) stab wounds and
had been raped before she was killed; and Jennifer, 6, had
nineteen (19) stab wounds.
Lauro Vizconde, Estrellita’s husband, and the father of
Carmela and Jennifer, was in the United States on business
when the murders took place.
Suspects:
 Hubert Webb;
 Police Officer Biong
 Mike Estrada
Four years after the massacre, in 1995, the NBI announced
that it had solved the crime. It presented star-witness Jessica
M. Alfaro, one of its informers, who claimed that she
witnessed the crime. (Saludo kaayo si Judge Tolentino sa
iya. Her testimony was believed.) She pointed to the
accused Hubert Jeffrey P. Webb, Antonio tony Boy Lejano,
Artemio Dong Ventura, Michael A. Gatchalian, Hospicio
Pyke Fernandez, Peter Estrada, Miguel Ging Rodriguez, and
Joey Filart as the culprits. She also tagged accused police
officer, Gerardo Biong, as an accessory after the fact. Relying
primarily on Alfaro’s testimony, on August 10, 1995, the
public prosecutors filed an information for rape with
homicide against Webb, et.al.
On January 4, 2000, after four (4) years of arduous hearings,
the trial court rendered judgment, finding all the accused
guilty as charged and imposing on Webb, Lejano,
Gatchalian, Fernandez, Estrada, and Rodriguez the penalty
of reclusion perpetua and on Biong, an indeterminate prison
term of 11 years, 4 months, and 1 day to 12 years.
On appeal, the CA affirmed the trial courts decision. On
motion for reconsideration by the accused, the CA’s Special
Division of 5 members voted 3 against 2 to deny the motion.
During the appeal to the SC, the Court issued a Resolution
granting the request of Webb to submit for DNA analysis
the semen specimen taken from Carmela’s cadaver, which
specimen was believed to be still under the safekeeping of
the NBI. The Court granted the request pursuant to Section
4 of the Rule on DNA Evidence.
Unfortunately, on April 27, 2010 the NBI informed the Court
that it no longer has custody of the specimen, the same
having been turned over to the trial court. The trial record
shows, however, that the specimen was not among the
object evidence that the prosecution offered in evidence in
the case.
The outcome prompted accused Webb to file an urgent
motion to acquit on the ground that the government’s
failure to preserve such vital evidence has resulted in the
denial of his right to due process.
ISSUE: Accused Webb’s motion to acquit present a
threshold issue: whether or not the Court should acquit him
outright, given the government’s failure to produce the
semen specimen that the NBI found on Carmela’s cadaver,
thus depriving him of evidence that would prove his
innocence.
Webb claims, citing Brady v. Maryland, that he is entitled to
outright acquittal on the ground of violation of his right to
due process given the State’s failure to produce on order of
the Court either by negligence or willful suppression the
semen specimen taken from Carmela.
HELD: The medical evidence clearly established that
Carmela was raped and, consistent with this, semen
specimen was found in her. It is true that Alfaro identified
Webb in her testimony as Carmela’s rapist and killer but
serious questions had been raised about her credibility. At
the very least, there exists a possibility that Alfaro had lied.
On the other hand, the semen specimen taken from Carmela
cannot possibly lie. It cannot be coached or allured by a
promise of reward or financial support. If, on examination,
the DNA of the subject specimen does not belong to Webb,
then he did not rape Carmela. It is that simple. Thus, the
Court would have bgeen able to determine that Alfaro
committed perjury in saying that he did.
Still, Webb is not entitled to acquittal for the failure of the
State to produce the semen specimen, for one thing the
ruling in Brady v. Maryland that he cites has long been
overtaken by the decision in Arizona v. Youngblood, where
the U.S, Supreme Court held that due process does not
require the State to preserve the semen specimen although it
might be useful to the accused unless the latter is able to
show bad faith on the part of the prosecution or the police.
For, another, when Webb raised the DNA issue, the rule
governing DNA evidence did not yet exist, the country did
not yet have the technology for conducting the test, and no
Philippine precedent had as yet recognized its admissibility
as evidence. Consequently, the idea of keeping the specimen
secure even after the trial court rejected the motion for DNA
testing did not come up. Indeed, neither Webb nor his co-
accused brought up the matter of preserving the specimen
in the meantime.
Parenthetically, after the trial court denied Webb’s
application for DNA testing, he allowed the proceeding to
move on when he had on at least 2 occasions gone up to the
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Atty. Jess Zachael Espejo
CA or the SC to challenge alleged arbitrary actions taken
against him and the other accused. They raised the DNA
issue before the CA but merely as an error committed by the
trial court in rendering its decision in the case. None of the
accused filed a motion with the appeals court to have the
DNA test done pending adjudication of their appeal. This,
even when the SC had in the meantime passed the rules
allowing such test. Considering the accused’s lack of interest
in having such test done, the State cannot be deemed put on
reasonable notice that it would be required to produce the
semen specimen at some future time.
1:30:01 – 1:40:00 (Angel Deiparine)
On April 27, 2010, the NBI informed the Court that it no
longer has custody of the specimen, the same having been
turned over to the trial court. The trial court record shows,
however, that the specimen was not among the object
evidence that the prosecution offered in evidence in the
case. Nawala ang semen specimen. Nobody knows where it
is. It was not preserved.
So the outcome prompted accused Webb to file an urgent
motion to acquit on the ground that the government’s
failure to preserve such vital evidence has resulted in the
denial of his right to due process.
Beautiful argument: They were unable to preserve the vital
piece of evidence, then it resulted in the denial of the right
to due process.
ISSUE: Whether or not the Court should acquit him
outright, given the government’s failure to produce the
semen specimen that the NBI found on Carmela’s cadaver,
thus depriving him of evidence that would prove his
innocence.
Now, remember Webb here cited Brady vs. Maryland.
Brady and his companion Boblit were prosecuted for
murder. Brady admitted his involvement in the murder but
claimed that Boblit had done the actual killing. Mura bag
accessory or accomplice ra ko. The prosecution withheld the
statement by Boblit confessing that he had committed the
act of killing himself.
So what was withheld here? The written admission by
Boblit confessing that he had committed the act of killing
himself, which means that Brady, wala siyay apil. Iyang
penalty should be lesser.
The Supreme Court of the United States held that
withholding exculpatory evidence violates due process,
where the evidence is material to the guilt or punishment.
The Court determines that under Maryland State Law, the
withheld evidence could not have exculpated the defendant
BUT WAS MATERIAL TO THE LEVEL OF PUNISHMENT.
Definitely, an accomplice is punished lesser than the actual
principal, diba, under PH penal laws.
Webb here claims that based on Brady vs. Maryland, he is
entitled to outright acquittal on the ground of violation of
his right to due process given the State’s failure to produce
an Order of the court, either by negligence, to secure the
semen specimen.
You have to imagine here that at that time Webb here is
very young. He actually spent most of his adulthood in jail.
So every gamay na butas imo makita, you question.
Supreme Court said the medical evidence clearly
established that Carmela was raped and, consistent with
this, semen specimen was found in her body. It is true that
Alfaro identified Webb in her testimony as Carmela’s rapist
and killer but serious questions had been raised about her
credibility. At the very least, there exists a possibility that
Alfaro had lied. On the other hand, the semen specimen
taken from Carmela cannot possibly lie. It cannot be
coached or allured by a promise of reward or financial
support. If, on examination, the DNA of the subject
specimen does to belong to Webb, then he did not rape
Carmela. It is that simple.
So murag nag change ang tune. Katong niagi, pregnancy is
not an element of rape. Over and over again. But now,
ginaingon, if it did not belonged to him, he did not rape
Carmela. It is that simple. Nagbago lang kalit ang Supreme
Court.
Still, Webb is not entitled to acquittal for the failure of the
State to produce the semen specimen at this late stage. For
one thing, the ruling in Brady vs. Maryland that he cites has
long been overturned by the decision in Arizona vs.
Youngblood that held that due process does not require the
State to preserve the semen specimen although it might be
useful to the accused, unless, the latter is able to show bad
faith on the part of the prosecution or the police.
For another, when Webb raised the DNA issue, the rule
governing DNA evidence did not yet exist, the country did
not yet have the technology for conducting the test, and no
Philippine precedent had as yet recognized its admissibility
as evidence. Consequently, the idea of keeping the specimen
secure even after the trial court rejected the motion for DNA
testing did not come up. Indeed, neither Webb nor his co-
accused brought up the matter of preserving the specimen
in the meantime.
Parenthetically, after the trial court denied Webb’s
application for DNA testing, he allowed the proceeding to
move on when he had on at least two occasions gone up to
the Court of Appeals or the Supreme Court to challenge
alleged arbitrary actions taken against him and the other
accused. They raised the DNA issue before the Court of
Appeals but merely as an error committed by the trial court
in rendering its decision in the case. None of the accused
filed a motion with the appeals court to have the DNA test
done pending adjudication of their appeal.
So, the State cannot be deemed to be caught on reasonable
notice that it would be required to produce the semen
specimen at some future time.
Tama ang Supreme Court, in my observation, you cannot
expect us to preserve if at that time there was no still no
statutory obligation for us to preserve the samples. Tama
ang giingon sa Supreme Court.
But you have to take note, that right now, the governing
rule is Section 12, which mandates the preservation of DNA
Evidence in criminal cases for not less than a period of time
where a person is under trial for a commission of an offense,
or in case the accused is serving sentence, or until such time
as the accused has served his sentence.
Now, let’s go back to the case itself. Humana ta sa DNA na
issue.
What was alarming to me was what the Supreme Court
said: “If it was not his semen, he could not have raped
Carmela. It is that simple” which is far-different from the
previous case.
Although in the Lejano case, mejo obiter ang dating niya.
It’s not case law. But you can always argue that the Supreme
Court sometime might change its tune.
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Webb’s main defense was alibi. He was able to present very
credible evidence that he was at the US at the time of the
incident.
What postulate you need to remember here: ALIBI IS AN
INHERENTLY WEAK DEFENSE. It is always discredited
by positive eye witness identification. So, if there is a clash
between positive and negative evidence, it is always
positive evidence that prevails, making alibi an inherently
weak defense.
So in the dispositive portion by the SC, the court reverses
and sets aside the decision of the lower court and acquits
Webb, Lejano, Gatchalian, Andres, etc. and further released
from detention unless they are confined for another lawful
cause. That took a long long time.
So what’s happened after that? Lauro Vizconde, filed a
motion for reconsideration of the Webb acquittal…but we
all know that once you are acquitted that cannot be reversed
anymore. Otherwise there is double jeopardy.

To correlate, in the case of Andal, the Supreme Court always
ruled that eye witness identification cannot overrule DNA
evidence.
The Supreme Court here, however, had the occasion to look
back the supposed positive identification by the witness
Jessica Alfaro. According to the Supreme Court, the positive
identification, to be acceptable, must meet at least two
criteria:
First, the positive identification of the offender must come
from a credible witness. She is credible who can be trusted
to tell the truth, usually based on past experiences with her.
Her word has, to one who knows her, its weight in gold.
And he died after…suffering a series of heart attacks…he
got his wished to be buried next to spouse and children…he
died without obtaining any measure of justice. No peace of
mind whatsoever after the brutal slaying of his family. The
rest of his life was spent seeking justice. Justice that was
overturned after 15 years of Hubert Webb and his
companions being in jail.
15 years…if it weren’t Webb and company…who did it?
Wala na. human na.
What happened to Hubert Webb, he was already 42 years
old when he was released, he ran for councilor of Paranaque
last May 2016 elections. What happened? Vandolph won…

There were a lot of inconsistencies in the testimony of Alfaro
during trial. She tended to contradict herself. She had that
habit of going to the media, magpa interview to tell her side
of the story. But the stories conflict, inconsistent kaayo
ingon niya.
Ingon niya wala nko nakita kay naa pa ko sa gawas. I did
not see the actual rape. But during trial, she said I was there.
I witnessed Hubert Webb mount Carmela and then raped
her. Unsay toohan nimo? Inconsistent man iya statements.
Second, the witness’ story of what she personally saw must
be believable, not inherently contrived. A witness who
testifies about something she never saw runs into
inconsistencies and makes bewildering claims.
What about Jessica Alfaro? After the SC immortalized her
lies, calling her a liar in jurisprudence…she fled to Canada
for no apparent reason. In March 2011, the Webb family
filed a criminal case against her for false testimony. But you
know the latin maxim Paticur facinus in judicium fugium(?)
– He who flees from prosecution confesses his guilt.
(Talks about the movie of life of Jessica Alfaro; kris Aquino;
Alice Dixon)
So that takes care of DNA evidence. The coverage of our
first exam is only up to Rule 130 Section 1 including DNA
evidence. That’s the coverage of the 1st exam which would
be on August 25.

1:40:01 – 1:49:02 (Alexander Abonado)

So inconsistent kaayo ang giingon niya. One time giingon

niya na wala nako nakita kay naa ra ko sa gawas. I did not
see the actual rape…but during trial she said, “I was there, I
witnessed Hubert mount Carmela and then raped her.”
Unsa tuohan nimo nga iconsistent man ang iyang
statements?

Second, the witness’ story of what she personally

witnessed/ saw must be believable not inherently
contrived. A witness who testifies about something she
never saw runs into inconsistencies and makes bewildering
claims.

One thing that the SC also said was the fact that Jessica
Alfaro here was actually an asset of the NBI. Then all of a
sudden when the NBI when the police no longer had any
means, Jessica Alfaro just comes forward and states that “I
was actually there.”

How convenient that the supposed eye witness was

somebody who happened to be an asset of the NBI.

Murag convenient kaayo no? It so happened that she ran the

same crowd, and she also happens to be an NBI agent/asset.

So as we already discussed about Alfaro and her testimony

fail to make the above requirement (?). If the whole case of
the prosecution is about Alfaro’s testimony then the
prosecution’s case should fail.

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