TESTIMONIAL EVIDENCE

Witness- A witness is one who, being present, personally sees or perceives a thing, a
beholder, spectator or eyewitness. One who testifies to what he has seen or heard, or
otherwise observed.

1. Qualifications of a Witness
All persons who can perceive, and perceiving, can make known their perception to
others, may be witnesses. Religious/political belief, interest in the outcome of the case,
or conviction of a crime unless otherwise provided by law, shall not be ground for
disqualification [Sec. 21, Rule 130]
Basic Qualifications of a Witness
a. He/she can perceive
i. Corollary to perception is that the witness must have personal knowledge of the
facts surrounding the subject matter of his testimony [Sec. 22, Rule 130]
b. He/she can make known his perception
i. This means that he/she must have the ability to remember and communicate
the remembered perception
c. He/she must take an oath or affirmation [Sec. 1, Rule 132]
d. He/she must not possess any of the disqualifications

A deaf-mute is competent to be a witness as long as he/she has the faculty to make

observations and he/she can make those observations known to others.

In case person is convicted of a crime

General rule: Not disqualified. The fact that a witness has been convicted of felony is a
circumstance to be taken into consideration as affecting his character and credibility.

Exception: Otherwise provided by law, e.g. under Art. 821 of the Civil Code, a person
convicted of any of the following crimes cannot be a witness to a will:
a. Falsification of documents,
b. Perjury; or
c. False testimony

Competency of a Witness
One is qualified to take the witness stand if:
a. He is capable of perceiving at the time of the occurrence of the fact; and
b. He came make his perception known

Competency has reference to the basic qualifications and the absence of

disqualifications of a witness to testify.
Competency Presumed
A person who takes the witness stand is presumed to possess the qualifications of a
witness. His competence may be questioned by the other party by interposing an
objection.

Credibility of a Witness
Credibility has nothing to do with the law or the rules. It refers to the weight and
trustworthiness or reliability of the testimony. [Riano, 185, 2016 Ed.]

Questions concerning the credibility of a witness are best addressed to the sound
discretion of the trial court as it is in the best position to observe his demeanor and
bodily movements.

2. Disqualifications of Witnesses

EFFECT OF INTEREST IN THE SUBJECT MATTER

A person is not disqualified by reason of his interest in the subject matter. Interest only
affects credibility, not competency.

EFFECT OF RELATIONSHIP
General rule: Mere relationship does not impair credibility

Note: Disqualification by reason of mental incapacity or immaturity (previously Sec. 21,

Rule 130) and disqualification by reason of death or insanity of adverse party aka Dead
Man’s Statute (previously Sec. 23, Rule 130) have been deleted in the 2019 Revisions.

Objection to competency of witness - must be made before he has given any

testimony;
- If the incompetency appears on the trial, it
mst be interposed as soon as it becomes apparent.

Waiver of objection - may be done expressly or by silence.

The ff may be considered a waiver of the objection:

a. Where the witness testifies without objection, though at that time the party
knows of his incompetency.
b. Here the party who might have made the objection owns the witness in
support of his own case.

[Section 21. Disqualification by reason of mental incapacity or immaturity.

(Deleted)]

Sec 21 Rule 130 Disqualification by reason of mental incapacity or immaturity

a. Those whose mental condition, at the time of their production for examination, is such
that they are incapable of intelligently making known their perception to others.
b. Children whose mental maturity is such as to render them incapable of perceiving the
facts respecting which they are examined and of relating them truthfully.

Section 22. Testimony confined to personal knowledge. - A witness can testify only
to those facts which he or she knows of his or her personal knowledge; that is, which
are derived from his or her own perception.

Disqualification by Reason of Marriage

Also known as Marital Disqualification Rule [Alvarez v. Ramirez, G.R. No. 143439
(2005)] or Spousal Immunity.

Section 23. Disqualification by reason of marriage. - During their marriage, the

husband or the wife cannot testify against the other without the consent of the affected
spouse, except in a civil case by one against the other, or in a criminal case for a crime
committed by one against the other or the latter's direct descendants or ascendants.
(22a)

Elements
1. During their marriage
i. The marriage must be valid and existing at the time of the offer of the testimony
2. The husband or the wife cannot testify against the other
i. The “other” spouse must be a party to the action, either as a plaintiff or
defendant
ii. Note: 2019 Revision removed the words “for or”
3. Without the consent of the affected spouse

Except: Spouse may testify against the other even without the consent of the latter
1. In a civil case by one against the other; or
2. In a criminal case for a crime committed by one against the other or the latter's
direct descendants/ascendants

Rationale
1. There is identity of interests between husband and wife;
2. If one were to testify against the other, there is a consequent danger of perjury;
3. Policy of the law is to guard the security and confidence of private life, and to
prevent domestic disunion and unhappiness; and
4. Where there is want of domestic tranquility, there is danger of punishing one spouse
through the hostile testimony of the other.

Duration
General rule: During their marriage [Sec. 23 Rule 130]
Exception: Where the marital and domestic relations are so strained that there is no
more harmony to be preserved nor peace and tranquility which may be disturbed, the
reason based upon such harmony and tranquility fails.

In such a case, identity of interests disappears, and the consequent danger of perjury
based on that identity is non-existent.
This applies only to a lawful wife – not a bigamous one, nor to a paramour, nor to an
affiance.

Either Spouse Must Be a Party to the Case

As to the adverseness of the testimony, courts generally hold this to mean that the other
spouse must be a party to the cause, not a third person who happens to be involved
somehow in the case; otherwise, the testimony does not hurt the other
spouse’s legal interests.

When Privilege Ceases

After the death or the divorce of one spouse, the privilege ceases for the reason
ceases. When the marriage is dissolved by death, there is no more marriage and
therefore, the privilege can no longer be claimed.

It has been held that no unfavorable inference may be drawn from a fact that a party
spouse invokes the privilege to prevent the witness-spouse from testifying against him
or her.

Ordono vs. Daquigan, 62 SCRA 270 (Riano)

The Supreme Court ruled that the wife is allowed to testify against her husband who
was accused of raping their daughter. It ruled that the correct rule is the one laid
down in Cargill vs. State which held that, “The rule that the injury must amount to a
physical wrong upon the person is too narrow. The better rule is that, when an offense
directly attacks or directly and vitally impairs the conjugal relations, it comes
within the exception to the statute…”

People vs. Quidato Jr., 297 SCRA 1 (Riano)

May a spouse testify in a trial where the spouse is a co-accused?
The Court ruled in the affirmative but likewise held that the testimony of the wife in
reference to her husband must be disregarded since the husband timely objected
thereto under the marital disqualification rule. The Court explained that the
disqualification is between husband and wife, but the rule does not preclude the wife
from testifying when it involves other parties or accused. Hence, the wife could testify in
the murder case against the brothers who were jointly tried with the husband of the
witness. The Court stressed, however, that the testimony cannot be used against
accused-appellant directly or through the guise of taking judicial
notice of the proceedings in the murder case without violating the marital disqualification
rule. “What cannot be done directly cannot be done indirectly.”

QUESTION:
Leticia was estranged from her husband Paul for more than a year due to his suspicion
that she was having an affair with Manuel, their neighbor. She was temporarily living
with her sister in Pasig City. For unknown reasons, the house of Leticia’s sister was
burned, killing the latter. Leticia survived. She saw her husband in the vicinity during the
incident. Later, he was charged with arson in an Information filed with the RTC, Pasig
City. During the trial, the prosecutor called Leticia to the witness stand and offered her
testimony to prove that her husband committed the arson. Can Leticia testify over the
objection of her husband on the ground of marital privilege?

Suggested Answer
Leticia cannot testify. Section 22 of Rule 130 bars her testimony without the
consent of the husband during the marriage. The separation of the spouses has not
operated to terminate their marriage. (Note: This is an answer based on the tenor of the
Rules of Court.)

The following answer should also be considered:

Leticia may testify over the objection of her husband. Where the marital and domestic
relations between her and the accused-husband have become so strained
that there is no more harmony, peace, or tranquility to be preserved, there is no longer
any reason to apply the Marital Disqualification Rule. (People vs. Castaneda, 271 SCRA
504; Alvarez vs. Ramirez, 473 SCRA 72)

Disqualifications by Reason of Privileged Communications; Rule on

Third Parties

Privilege
A privilege is a rule of law that, to protect a particular relationship or interest, either
permits a witness to refrain from giving testimony he otherwise could be compelled to
give, or permits someone usually one of the parties, to prevent the witness from
revealing certain information. [Herrera]

Privilege may only be invoked by the persons protected thereunder. It may also be
waived by the same persons, either impliedly or expressly.

A. Husband and Wife

Also known as marital privilege
Rationale
Confidential nature of the privilege; to preserve marital and domestic relations

Section 24. Disqualification by reason of privileged communications. - The

following persons cannot testify as to matters learned in confidence in the following
cases:

(a) The husband or the wife, during or after the marriage, cannot be examined
without the consent of the other as to any communication received in
confidence by one from the other during the marriage except in a civil case
 by one against the other, or in a criminal case for a crime committed by
one against the other or the latter's direct descendants or ascendants.

Elements
1. The husband or the wife
2. During or after the marriage
3. Cannot be examined
4. Without the consent of the other
5. As to any communication received in confidence by one from the other during
the marriage
[Sec. 24(a), Rule 130]

Except: Spouse may testify for or against the other even without the consent of the
latter
1. In a civil case by one against the other, or
2. In a criminal case for a crime committed by one against the other or the latter’s direct
descendants or ascendants.
[Sec. 24(a), Rule 130]

Requisite of the rule

a. Spouses must be legally married
- If they live together in illicit cohabitation, they are not entitled to the privilege
- It is immaterial whether they believed in good faith that they were married if in
fact they were not.

b. The communication must be confidential and made during the marriage

- Only those communication, whether by word or deed, as pass from one to the
other by virtue of the confidence resulting from their intimate relation.
- Only the knowledge which the husband and the wife obtains from the other which for
the marital relation and the confidence growing out of it, would have been
communicated, or which is of such nature or character as that to repeat the same would
tend to unduly embarrass or disturb the parties in their marital relations.

c. Form of communication
- Applies to any form of confidence disclosure.
- Maybe words or conduct. e.i > letters from husband to the
wife
> wife saw husband counting stolen money and put it in his pocket.
5. Communication presumed confidential
- Marital communication presumed to be confidential, but the presumption may
be overcome by proof that they were not intended to be private.

 Notwithstanding that one spouse subsequently without consent of the

other disclosed such communication to a third person.
6. When communication between husband and wife cease to be confidential
a. When made in the presence of a third person.

 XPN: if the confidential communication is overheard by a third person still

considered to be as confidential
 the prohibition to testify is directed only to the wife and not to the third person so
the latter cannot be prevented from testifying

 XPN to XPN: if the third person comes into the possession of the communication by
COLLUSION and VOLUNTARY DISCLOSURE on either spouse, he becomes an agent
of such spouse and cannot testify without the consent of the other.

b. Communication intended for transmission to third person.

 A letter written to the defendant by his wife and seized by the police in search of his
effects on the day of his arrest is admissible because a privilege communication
from one spouse to another comes into the hands of a third party, whether legally
or not without collusion and voluntary disclosure on the part of either spouse , the
privilege is thereby extinguished and if competent becomes admissible.

 Statements from the notes of a stenographer to whom the husband dictated the
letter and who had transcribed it is admissible, because normally the husband and the
wife communicate without a stenographer. here the communications have been
voluntarily revealed.

 Statements in the wife’s diary not shown to the husband is admissible.

 Those business and other communication not related to or dependent on mutual trust
are not privilege. But sometimes business transaction between husband and wife are
held privileged

 Res gestae made in the presence of the spouse may be received.

 Testimony of the former wife as to the sanity of the husband who is charged with
homicide is admissible.

Duration of the privilege

- Continues in effect even after the marital relation has been terminated.
- This privilege is not affected by death of the other spouse or absolute divorce.
 But when the communication is needed in behalf of his estate, the surviving should be
entitled to waive it.

Exceptions
a. That the case in which the husband or the wife is called to examined is a civil case
instituted by one against the other; or
b. a criminal case for a crime omitted by one against the other
When not applicable
1. When the communication was not intended to be kept in confidence
2. When the communication was made prior to the marriage
3. Waiver of the privilege.

Marital Disqualification [Sec. 22] Marital Privilege[Sec. 24(a)]

One spouse should be a party to the Neither of the spouses need to be a

case; party;
Applies only if the marriage is existing Does not cease even after the marriage is
at the time the testimony is offered; dissolved; and
and
Constitutes a total prohibition on any Prohibition is limited to testimony on
testimony against the spouse of the Confidential communications between
witness spouses

Waiver of privilege
- This privilege may be waived if not objected to.

 Objection to the admission is timely if made before the answer to the question for its
revelation.

- Privilege belongs to the communicating spouse. The prohibition arises only when the
person in whose favor the privilege exist demands by timely objection to the testimony.

Section 24. Disqualification by reason of privileged communications. -

The following persons cannot testify as to matters learned in confidence in the following
cases:

(b) An attorney or person reasonably believed by the client to be licensed to

engage in the practice of law cannot, without the consent of the client, be
examined as to any communication made by the client to him or her, or his or
her advice given thereon in the course of, or with a view to, professional
employment, nor can an attorney's secretary, stenographer, or clerk, or other
persons assisting the attorney be examined without the consent of the client and
his or her employer, concerning any fact the knowledge of which has been
acquired in such capacity, except in the following cases

(i) Furtherance of crime or fraud. If the services or advice of the lawyer

were sought or obtained to enable or aid anyone to commit or plan to
commit what the client knew or reasonably should have known to be a
crime or fraud;
 (ii) Claimants through same deceased client. As to a communication
relevant to an issue between parties who claim through the same
deceased client, regardless of whether the claims are by testate or
intestate or by inter vivos transaction;

(iii) Breach of duty by lawyer or client. As to a communication relevant to

an issue of breach of duty by the lawyer to his or her client, or by the client
to his or her lawyer;

(iv) Document attested by the lawyer. As to a communication relevant to

an issue concerning an attested document to which the lawyer is an
attesting witness; or

(v) Joint clients. As to a communication relevant to a matter of common

interest between two or more clients if the communication was made by
any of them to a lawyer retained or consulted in common, when offered in
an action between any of the clients, unless they have expressly agreed
otherwise.

Elements

As regards an attorney or any person reasonably believed by the client to be licensed to

engage in the practice of law

1. Without the consent of his client

2. Cannot be examined as to
a. Any communication made by the client to him/her, or
b. His/her advice given thereon in the course of, or with a view to, professional
employment [Sec 24(b), Rule 130]

As regards an attorney’s secretary, stenographer, clerk, or other persons

assisting the attorney
1. Without the consent of the client and his/her employer
2. Cannot be examined
3. Concerning any fact the knowledge of which has been acquired in such capacity
[Sec. 24(b), Rule 130]

The rule

- The attorney could not be compelled, nor would be allowed to disclose the following:
a. the privilege communication made by the client to his attorney or his advice given
thereon in the course of or with a view of professional employment

 confidentiality is inferred and presumed until the contrary is shown

 there must be an existing attorney and client relation.

 There must showing that the parties agreed there is an employment; or

 At least that he had consulted the witness to that end and the latter had not refused
the employment

 If a lawyer friend without express employment or hope of compensation, was asked

by the accused while visiting that latter would plead guilty, the communication is not
privilege.

 Communication in the ordinary intercourse is not privilege.

Identity of Client
General rule: The attorney-client privilege may not be invoked to refuse to divulge the
identity of the client.

Exceptions:
1. When a strong probability exists that revealing the name would implicate that person
in the very same activity for which he sought the lawyer’s advice;
2. When disclosure would open the client to liability;
3. When the name would furnish the only link that would form the chain of testimony
necessary to convict [Regala v. Sandiganbayan, G.R. No. 105938 and G.R. No. 108113
(1996)]

Exceptions to the privilege

1. Furtherance of crime or fraud
a. If the services or advice of the lawyer were sought or obtained
b. To enable or aid anyone
c. To commit or plan to commit
d. What the client knew or reasonably should have known to be a crime or fraud [Sec.
24(b)(i), Rule 130]

2. Claimants through same deceased client

a. As to communication relevant to an issue between parties who
b. Claim through the same deceased client
c. Regardless of whether the claims are by testate, intestate, or inter vivos transaction
[Sec. 24(b)(ii), Rule 130]

3. Breach of duty by lawyer or client

a. As to communications relevant to an issue of breach of duty
i. By the lawyer to his/her client; or
ii. By the client to his/her lawyer [Sec. 24(b)(iii), Rule 130]

4. Document attested by the lawyer

a. As to communication relevant to an issue concerning an attested document
b. The lawyer is an attesting witness [Sec. 24(b)(iv), Rule 130]

5. Joint clients

a. As to a communication relevant to a matter of common interest between two or more

clients
b. The communication was made by any of them to
c. The lawyer retained or consulted in common
d. Communication is offered in an action between any of the clients
e. Neither expressly agreed otherwise
[Sec. 24(b)(v), Rule 130]
Reason for the rule
- Based on upon the ground of public policy
- To encourage clients to make full disclosure of facts in the interest of the
administration of justice
- Intended to enable a client to place unrestricted and unbounded confidence in his
attorney in matters affecting his rights and obligations without danger of having
disclosures forced from the attorney on the witness stand.

Professional employment
- The atty-client relationship must exist at the time the communication is made.

Test whether the communications are made to an attorney with a view to obtaining
professional assistance or advice- if so, then privilege.

 When is communication not privilege:

1. No professional relation exist the time the communication was made but
subsequently employs the atty in relation to such statement
2. those voluntarily made after the attorney refused to accept employment

Communication must have been made to the attorney in the course of

professional employment or with a view or professional employment or in hi
professional capacity - A communication to an attorney is said to be in “his
professional capacity” when the client makes the same with the purpose of obtaining
from him a legal advice and opinion concerning his legal rights, obligation or duties
relative to the subject matter of communication.

- It must be related to which the attorney is consulted or to put him in possession of

information to enable him to properly and intelligently serve the client.
- Privilege also applies to agents and a consultation with an agent in the attorney’s
office.

 When privilege does not apply

1. An inquiry made of a friend who is not an attorney
2. Consultation with e.i clerk of court, deputy sheriff an unadmitted law student
3. Sidewalk advice from attorney upon legal questions to which no compensation is
asked or expected and none given except a luncheon should not be regarded as
privilege.
4. Those communication between an attorney and witness for the client to show that the
attorney attempted to corrupt or influence a witness to color his testimony in favor of the
Accused

Duration of the privilege

In the absence of a statute, the privilege is permanent. It may even be claimed by a
client’s executor or administrator after the client’s death.

Physician and Patient

Elements
1. A physician, psychotherapist or person reasonably believed by the patient to be
authorized to practice medicine or psychotherapy
a. Psychotherapist:
i. Person licensed to practice medicine engaged in the diagnosis or
treatment of a mental or emotional condition; or
ii. A person licensed as a psychologist by the government while similarly
engaged
2. In a civil case
a. Note: the privilege cannot be claimed in a criminal case because the interest of
the public in a criminal prosecution should be deemed more important than the
secrecy of the communication [Riano, 211, 2016 Ed.]

3. Without the consent of the patient

4. Cannot be examined as to
a. Any confidential communication made between the patient and his/her
physician or psychotherapist
b. For the purpose of diagnosis or treatment
i. Of the patient’s physical, mental, or emotional condition
ii. Including drug or alcohol addiction

Note: this privilege also applies to persons, including members of the patient’s family,
who have participated in the diagnosis or treatment of the patient under the direction of
the physician or psychotherapist. [Sec. 24(c), Rule 130]
Physician-patient relationship need not be entered into voluntarily.

When not applicable

1. Communication was not given in confidence
2. Communication was irrelevant to the professional employment
3. Communication was made for an unlawful purpose
4. Communication was intended for the commission/concealment of a crime
5. Communication was intended to be made public/divulged in court
6. When there was a waiver
7. When the doctor was presented as an expert witness and only hypothetical problems
were presented to him [Lim v. C.A., G.R. No. 91114 (1992)]

Physician allowed to testify as an expert

A doctor is allowed to be an expert witness when he does not disclose anything
obtained in the course of his examination, interview and treatment of a patient.

Autopsical information
If the information was not acquired by the physician in confidence, he may be allowed to
testify thereto. But if the physician performing the autopsy was also the deceased’s
physician, he cannot be permitted either directly or indirectly to disclose facts that came
to his knowledge while treating the living patient.

Duration of privilege
The privilege survives the death of the patient.

Priest and Penitent

(d) A minister, priest or person reasonably believed to be so cannot, without the

consent of the affected person, be examined as to any communication or
confession made to or any advice given by him or her, in his or her professional
character, in the course of discipline enjoined by the church to which the minister
or priest belongs.

Elements
1. A minister or priest or person reasonably believed to be so
2. Without the consent of the affected person
3. Cannot be examined as to any
a. communication; or
b. confession made to; or
c. advice given by him/her
4. in his/her professional character
5. in the course of discipline enjoined by the church to which the minister or priest
Belongs [Sec. 24(d), Rule 130]

Public Officers

Elements
1. A public officer
2. During or after his/her tenure
3. Cannot be examined as to communications made to him/her in official confidence
4. When the court finds that the public interest would suffer by the disclosure

Elements of “presidential communications privilege”

1. Must relate to a “quintessential and nondelegable presidential power;”
2. Must be authored or “solicited and received” by a close advisor of the
President or the President himself; and
3. Privilege may be overcome by a showing of adequate need such that the information
sought “likely contains important evidence” and by the unavailability of the information
elsewhere [Neri v. Senate, G.R. No. 180643 (2008)]

Purpose
The privilege is not intended for the protection of public officers but for the protection of
the public interest. When no public interest would be prejudiced, this privilege cannot be
invoked.

Rule on Third Parties

The communication shall remain privileged, even in the hands of a third person who
may have obtained the information, provided that the original parties to the
communication took reasonable precaution to protect its confidentiality. [Sec. 24, Rule
130 (last par.)]

Section 25. Parental and filial privilege. - No person shall be compelled to testify
against his or her parents, other direct ascendants, children or other direct descendants,
except when such testimony is indispensable in a crime against that person or by one
parent against the other.

Applicability
The rule is applied to both civil and criminal cases

The privilege cannot apply between stepmothers and stepchildren because the rule
applies only to direct ascendants and descendants, a family tie connected by a common
ancestry. [Lee v. C.A., G.R. No. 177861 (2010)]

A child can waive the filial privilege and choose to testify against his father. The rule
refers to a privilege not to testify, which can be invoked or waived like other privileges.
Trade Secrets
General Rule: A person cannot be compelled to testify about any trade secret
Except: the non-disclosure will conceal fraud or otherwise work injustice

When disclosure is directed, the court shall take protective measures, as required by
1. the interests of the owner of the trade secret;
2. the interests of the parties; and
3. the furtherance of justice

[Sec. 26, Rule 130]

Note: This is a new rule.

Section 26. Privilege relating to trade secrets. - A person cannot be compelled to

testify about any trade secret, unless the non-disclosure will conceal fraud or otherwise
work injustice. When disclosure is directed, the court shall take such protective measure
as the interest of the owner of the trade secret and of the parties and the furtherance of
justice may require.

Examination of a Witness

Section 1. Examination to be done in open court. - The examination of witnesses

presented in a trial or hearing shall be done in open court, and under oath or affirmation.
Unless the witness is incapacitated to speak, or the question calls for a different mode
of answer, the answers of the witness shall be given orally.

Shall be done
a. in open court, and
b. under oath or affirmation

Answers shall be given orally, unless the

a. witness is incapacitated to speak, or
b. question calls for a different mode of answer

Section 2. Proceedings to be recorded. - The entire proceedings of a trial or hearing,

including the questions propounded to a witness and his or her answers thereto, and
the statements made by the judge or any of the parties, counsel, or witnesses with
reference to the case, shall be recorded by means of shorthand or stenotype or by other
means of recording found suitable by the court.

A transcript of the record of the proceedings made by the official stenographer,

stenotypist or recorder and certified as correct by him or her, shall be deemed prima
facie a correct statement of such proceedings.
Proceedings to be recorded, including
a. the questions propounded to a witness and his answers thereto
b. the statements made by the judge or any of the parties, counsel, or witnesses with
reference to the case by means of shorthand or stenotype or by other means of
recording found suitable by the court [Sec. 2, Rule 132]

Transcript deemed prima facie correct

A transcript of the record of the proceedings made by the official stenographer,
stenotypist or recorder and certified as correct by him shall be deemed prima facie a
correct statement of such proceedings.

Exclusion and separation of witnesses

The court, motu proprio or upon motion, shall order witnesses excluded so that they
cannot hear the testimony of other witnesses.

However, this rule does NOT AUTHORIZE exclusion of:

a. a party who is a natural person;
b. a duly designated representative of a juridical entity which is a party to the case;
c. a person whose presence is essential to the presentation of the party’s cause; or
d. a person authorized by a statute to be present.

The court may also cause witnesses to be kept separate and to be prevented from
conversing with one another, directly or through intermediaries, until all shall have been
Examined.

Section 3. Rights and obligations of a witness. — A witness must answer questions,

although his or her answer may tend to establish a claim against him or her. However, it
is the right of a witness:

(1) To be protected from irrelevant, improper, or insulting questions, and from

harsh or insulting demeanor;

(2) Not to be detained longer than the interests of justice require;

(3) Not to be examined except only as to matters pertinent to the issue;

(4) Not to give an answer which will tend to subject him or her to a penalty for an
offense unless otherwise provided by law; or

(5) Not to give an answer which will tend to degrade his or her reputation, unless it be to
the very fact at issue or to a fact from which the fact in issue would be presumed. But a
witness must answer to the fact of his or her previous final conviction for an offense.
Rights and Obligations of a Witness
RIGHTS
1. To be protected from irrelevant, improper, or insulting questions, and from harsh or
insulting demeanor;
2. Not to be detained longer than the interests of justice require;
3. To only be examined as to matters pertinent to the issue;
4. Not to give an answer which will tend to subject him/her to a penalty for an offense
a. Unless: otherwise provided by law
Example of this right: Sec. 8, R.A. 1379 and other immunity statutes which grant
the witness immunity from criminal prosecution for offenses admitted
5. Not to give an answer which will tend to degrade his/her reputation
a. Exceptions:
i. the answer is the very fact in issue;
ii. the answer is a fact from which the fact in issue would be presumed
b. Exception to the exception: he/she must answer to the fact of his/her
previous final conviction for an offense.

OBLIGATION
A witness must answer questions, although his/her answer may tend to establish a
claim against him/her. [Sec. 3, Rule 132].

One-Day Examination of Witness Rule

A witness has to be fully examined in one (1) day only. It shall be strictly adhered to
subject to the courts' discretion during trial on whether or not to extend the direct and/or
cross examination for justifiable reasons.

Section 4. Order in the examination of an individual witness. - The order in which

an individual witness may be examined is as follows:
(a) Direct examination by the proponent;
(b) Cross-examination by the opponent;
(c) Re-direct examination by the proponent;
(d) Re-cross examination by the opponent. (4)

Section 5. Direct examination. - Direct examination is the examination-in-chief of a

witness by the party presenting him or her on the facts relevant to the issue.
Section 6. Cross-examination; its purpose and extent. - Upon the termination of the
direct examination, the witness may be cross-examined by the adverse party on any
relevant matter, with sufficient fullness and freedom to test his or her accuracy and
truthfulness and freedom from interest or bias, or the reverse, and to elicit all important
facts bearing upon the issue.

Right to cross-examination
Cross-examination is the most reliable and effective way known of testing the credibility
and accuracy of testimony. This is an essential element of due process.

The right to cross-examine under the constitution is superior to technical rules on

evidence. [Herrera, citing People v. Valero, G.R. No. L-45283-84 (1982)]

Effect of denial of right to cross-examine

Most courts require that the testimony given on direct examination be stricken off –
provided the unavailability of the witness is through no fault of the party seeking to
cross-examine. [Herrera]

Cross-examination must be completed or finished. When cross-examination is not and

cannot be done or completed due to causes attributable to the party offering the
witness, the uncompleted testimony is thereby rendered incompetent.

Section 7. Re-direct examination; its purpose and extent. - After the cross-
examination of the witness has been concluded, he or she may be re-examined by the
party calling him or her to explain or supplement his or her answers given during the
cross-examination. On re-direct examination, questions on matters not dealt with during
the cross-examination may be allowed by the court in its discretion.

Section 8. Re-cross examination. - Upon the conclusion of the re-direct examination,

the adverse party may re-cross-examine the witness on matters stated in his or her re-
direct examination, and also on such other matters as may be allowed by the court in its
discretion.

Section 9. Recalling witness. - After the examination of a witness by both sides has
been concluded, the witness cannot be recalled without leave of the court. The court will
grant or withhold leave in its discretion, as the interests of justice may require.

Section 10. Leading and misleading questions. - A question which suggests to the

witness the answer which the examining party desires is a leading question. It is not
allowed, except:

(a) On cross-examination;

(b) On preliminary matters;

(c) When there is difficulty in getting direct and intelligible answers from a witness
who is ignorant, a child of tender years, is of feeble mind, or a deaf-mute;

(d) Of an unwilling or hostile witness; or

 (e) Of a witness who is an adverse party or an officer, director, or managing
agent of a public or private corporation, or of a partnership or association which
is an adverse party.

A misleading question is one which assumes as true a fact not yet testified to by the
witness, or contrary to that which he or she has previously stated. It is not allowed.

Leading question: A question which suggests to the witness the answer which the
examining party desires

General rule: Not allowed

Except:
a. On cross examination;
b. On preliminary matters;
c. When there is difficulty in getting direct and intelligible answers from a witness
who isignorant, or a child of tender years, or is of feeble mind, or a deaf-mute;
d. Of an unwilling or hostile witness; or
e. Of a witness who is an adverse party or an officer, director, or managing agent
of a public or private corporation or of a partnership or association which is an
adverse party[Sec. 10, Rule 132]

A leading question suggests a particular answer that the questioner desires – most
often a simple 'yes' or 'no' answer.

Examples:
“Did Janice strike you in the face, with her fist?” – suggesting that Janice struck her in
the face.

“You told Ben that you stole from the store, didn’t you?” – Suggesting that Ben stole
from the store.

“You were mad at your girlfriend at that time, weren’t you?”

Misleading question: One which assumes as true a fact not yet testified to by the
witness, or contrary to that which he/she has previously stated. It is not allowed. [Sec.
10, Rule 132]

Examples:
“How fast was the first car going when it smashed into the second car” - This question
implies that the first car is at fault.

“When you said you saw the witness at 10:00 pm, was he holding a weapon?” – The
question is misleading when the witness did not say anything about the time when he
saw the witness.
“How close were you when you saw the accused standing beside the victim holding a
knife”- Misleading if the witness did not previously state seeing the witness holding a
knife.

PURPOSE OF OBJECTION:
One author has described objecting as a “skill offence” to prevent the introduction of
incompetent evidence from reaching the ears of the judge and to preserve in written
form the objection to the incompetent evidence in case of an appeal.

TIMELINESS OF OBJECTIONS:
Under Section 36 of Rule 132, Rules of Court, objection must be made as soon as the
ground becomes apparent and the ground for the objection must be specified.

Section 11. Impeachment of adverse party's witness. - A witness may be impeached

by the party against whom he or she was called, by contradictory evidence, by evidence
that his or her general reputation for truth, honesty, or integrity is bad, or by evidence
that he or she has made at other times statements inconsistent with his or her present
testimony, but not by evidence of particular wrongful acts, except that it may be shown
by the examination of the witness, or record of the judgment, that he or she has been
convicted of an offense.

QUESTION:
What is impeachment of a witness?
ANSWER:
It is a technique usually employed as part of cross-examination to discredit a witness’
testimony by attacking his credibility.

What are the methods of impeaching the adverse party’s witness?

•by contradictory evidence.

•by evidence that the witness’ general reputation for truth, honesty, or integrity is bad.
•by prior inconsistent statements (“laying the predicate")

By contradictory evidence:
Refers to the prior testimony of the same witness or other evidence presented by him in
the same case, but not the testimony of another witness.

By evidence that the witness’ general reputation for truth, honesty, or integrity is
bad.
Since the weight of the witness’ testimony depends on his credibility, he may be
impeached by impairing his credibility by showing his not pleasing reputation but only as
regards his reputation for truth, honesty or integrity.
By prior inconsistent statements (“laying the predicate" How to lay the predicate
– section 14)
Refers to statements, oral or documentary, made by the witness sought to be
impeached on occasions other than the trial in which he is testifying.

May a witness be impeached by evidence of particular wrongful acts?

GENERAL RULE:
A witness may not be impeached by evidence of particular wrongful acts.
EXCEPTION:
If it may be shown by the examination of the witness, or the record of the judgment, that
he has been convicted of an offense.

Section 12. Impeachment by evidence of conviction of crime. - For the purpose of

impeaching a witness, evidence that he or she has been convicted by final judgment of
a crime shall be admitted if (a) the crime was punishable by a penalty in excess of one
year; or (b) the crime involved moral turpitude, regardless of the penalty.

However, evidence of a conviction is not admissible if the conviction has been the
subject of an amnesty or annulment of the conviction.

Section 13. Party may not impeach his or her own witness. - Except with respect to
witnesses referred to in paragraphs (d) and (e) of Section 10 of this Rule, the
party presenting the witness is not allowed to impeach his or her credibility.

A witness may be considered as unwilling or hostile only if so declared by the court

upon adequate showing of his or her adverse interest, unjustified reluctance to testify, or
his or her having misled the party into calling him or her to the witness stand.

The unwilling or hostile witness so declared, or the witness who is an adverse party,
may be impeached by the party presenting him or her in all respects as if he or she had
been called by the adverse party, except by evidence of his or her bad character. He or
she may also be impeached and cross-examined by the adverse party, but such cross-
examination must only be on the subject matter of his or her examination-in-chief.
Section 14. How witness impeached by evidence of inconsistent statements. —
Before a witness can be impeached by evidence that he or she has made at other times
statements inconsistent with his or her present testimony, the statements must be
related to him or her, with the circumstances of the times and places and the persons
present, and he or she must be asked whether he or she made such statements, and if
so, allowed to explain them. If the statements be in writing, they must be shown to the
witness before any question is put to him or her concerning them.
Referral of Witness to Memorandum
When witness may refer to memorandum:
a. A witness may be allowed to refresh his/her memory respecting a fact
1. by anything written or recorded
2. by himself/herself or under his/her direction
3. at the time when the fact occurred, or immediately thereafter, or at any other time
when the fact was fresh in his/her memory and
4. he/she knew that the same was correctly written or recorded
5. the writing or record must be produced and may be inspected by the adverse
party, who may, if he/she chooses, cross-examine the witness upon it, and may read it
in evidence.
b. A witness may also testify from such a writing or record, though he/she retain no
recollection of the particular facts, if he/she is able to swear that the writing or record
correctly stated the transaction when made; but such evidence must be received with
caution. [Sec. 16, Rule 132]

Examination of a child witness (A.M. No. 004-07-SC)

Applicability of the rule

Unless otherwise provided, this rule shall govern the examination of a child witness who
are:
1. victims of a crime;
2. accused of a crime; and
3. witnesses to a crime
Where applicable: all criminal and non-criminal proceedings involving child witnesses
[Sec. 1, Rule on Examination of a Child Witness]

Meaning of “child witness"

Child witness—any person who at the time of giving testimony is:
1. below the age of 18 years; or
2. in child abuse cases, may be over 18 but is found by the court unable to fully take
care of himself or protect himself from abuse, neglect, cruelty, exploitation, or
discrimination because of a physical or mental disability or condition
[Sec. 4 (a), Rule on Examination of a Child Witness]

Competency of a child witness

General Rule: Every child is presumed qualified to be a witness.
Exception: the court shall conduct a competency examination of a child, motu proprio
or on motion of a party when it finds that substantial doubt exists regarding the child’s
ability to:
1. Perceive
2. Remember
3. Communicate
4. Distinguish from falsehood, or
5. Appreciate the duty to tell the truth in court [Sec. 6]

Sexual abuse shield rule

General Rule: The following evidence is inadmissible in any criminal proceeding
involving alleged child sexual abuse:
1. Evidence offered to prove that the alleged victim engaged in other sexual behavior;
and
2. Evidence to prove the sexual predisposition of the alleged victim

Exception: Evidence of specific instances of sexual behavior by the alleged victim to

prove that a person other than the accused was the source of the semen, injury, or
other physical evidence shall be ADMISSIBLE.

Admissions and Confessions

Admission by a Party (extrajudicial admissions)

Elements
1. The act, declaration or omission
2. Of a party
3. As to a relevant fact
4. Against his or her interest [Sec. 27, Rule 130]
5. Made out of court (Those made in court are governed by Sec. 4, Rule 129.) [2
Regalado 754, 2008 Ed.]
6. Offered and presented in court in an admissible manner (e.g. non-hearsay)

EXTRAJUDICIAL ADMISSIONS
Any statement of fact made by a party against his interest or unfavorable to the
conclusion for which he contends or is inconsistent with the facts alleged by him.

A statement by the accused, direct or implied, of facts pertinent to the issue, and
tending in connection with proof of other facts, to prove his guilt.

Effect of an Admission
It may be given in evidence against the admitter. [Sec. 27, Rule 130]
Flight from justice is an admission by conduct and circumstantial evidence of
consciousness of guilt.

JUDICIAL ADMISSIONS

A JUDICIAL ADMISSION is an admission, verbal or written, made by a party in the

course of the proceedings in the same case, which does not require proof.
ELEMENTS:
• It must be made by a party to the case or his
counsel.
• It must be made in the course of the proceedings in the same case. and
• It can be verbal or written admission. There is no particular form required.

JUDICIAL AND EXTRAJUDICIAL ADMISSIONS

JUDICIAL ADMISSIONS: Those made in the course of the proceeding in the same
case.
EXTRAJUDICIAL ADMISSIONS: Those made out of court or in a judicial proceeding
other than the one under consideration.

JUDICIAL ADMISSIONS: They do not require proof and may be contradicted only by
showing that it was made through palpable mistake or that no such admission was
made.
EXTRAJUDICIAL ADMISSIONS: They are regarded as evidence and must be offered
as such, otherwise the court will not consider it in deciding the case.

JUDICIAL ADMISSIONS: need not be offered in evidence because it is not evidence. It

is superior to evidence and shall be considered by the court as established.
EXTRAJUDICIAL ADMISSIONS: Require formal offer for it to be considered.

JUDICIAL ADMISSIONS: Conclusive upon the admitter.

EXTRAJUDICIAL ADMISSIONS: Rebuttable.

JUDICIAL ADMISSIONS: Admissible even if self-serving.

EXTRA JUDICIAL ADMISSIONS: Not admissible if self- serving.

JUDICIAL ADMISSIONS: Subject to cross-examination.

EXTRAJUDICIAL ADMISSIONS: Not subject to cross- examination.

When are judicial admissions made?

Judicial admissions may be made by the party himself or by his counsel:
• in the pleadings filed by the parties.
• during the trial, either by verbal or written manifestations or stipulations, including
depositions, written interrogatories and requests for admissions.
• in other stages of the judicial proceedings, as in preliminary conference or pre-
trial.

What are the legal consequences of judicial admissions?

ANSWER:
A party who judicially admits a fact cannot later challenge that fact because judicial
admissions constitute waiver of proof; production of evidence is dispensed with;
No evidence is needed to prove a judicial admission and it cannot be contradicted
unless it is shown to have been made through palpable mistake or that no such
admission was made.

Res Inter Alios Acta Rule

“Res inter alios acta alteri nocere non debet”— Things done between strangers ought
not to injure those who are not parties to them

Two Branches
1. First branch: Admission by a third party [Sec. 29, Rule 130]
2. Second branch: Similar acts as evidence [Sec. 35, Rule 130]

Admission by a Third Party

General rule: The rights of a party cannot be prejudiced by an act, declaration, or

omission of another [Sec. 29, Rule 130]

Admission by a third party is inadmissible as against another. The act, declaration or

omission of another is generally irrelevant, and that in justice, a person should not be
bound by the acts of mere unauthorized strangers. The rule is well-settled that a party is
not bound by any agreement of which he has no knowledge and to which he has not
given his consent and that his rights cannot be prejudiced by the declaration, act or
omission of another, except by virtue of a particular relation between them.

Exceptions:
1. Partner’s or Agent’s Admission [Sec. 30, Rule 130]
2. Admission by conspirator [Sec. 31, Rule 130]
3. Admission by privies [Sec. 32, Rule 130]

Basis of exception
A third party may be so united in interest with the party-opponent that the other person’s
admissions may be receivable against the party himself. The term “privy” is the orthodox
catchword for the relation.

Note: the res inter alios acta rule only applies to extrajudicial declarations (admissions
and confessions). However, when the declarant repeats his extrajudicial declaration in
open court and his co-accused are given the opportunity to cross-examine him, the
declaration becomes admissible against the co-accused.

Section 30. Admission by co-partner or agent. - The act or declaration of a partner or

agent authorized by the party to make a statement concerning the subject, or within the
scope of his or her authority, and during the existence of the partnership or agency, may
be given in evidence against such party after the partnership or agency is shown by
evidence other than such act or declaration. The same rule applies to the act or
declaration of a joint owner, joint debtor, or other person jointly interested with the party.
Statements made after partnership is dissolved
As a rule, statements made after the partnership has been dissolved do not fall
within the exception, but where the admissions are made in connection with the winding
up of the partnership affairs, said admissions are still admissible as the partner is acting
as an agent of his co-partners in said winding up.

Section 31. Admission by conspirator. - The act or declaration of a conspirator in

furtherance of the conspiracy and during its existence may be given in evidence against
the co-conspirator after the conspiracy is shown by evidence other than such act of
declaration.

Existence of the conspiracy may be inferred from acts of the accused

Applies only to extra-judicial statements, not to testimony given on the stand or at trial
where the party adversely affected has the opportunity to cross-examine.

As regards extrajudicial admissions AFTER termination of conspiracy, BEFORE

trial
General rule: Not admissible

Exceptions:
1. Made in the presence of the co-conspirator who expressly/impliedly agreed (tacit
admission)
2. Facts in admission are confirmed in the independent extrajudicial confessions
made by the co-conspirators after apprehension
3. As a circumstance to determine credibility of a witness
4. Circumstantial evidence to show the probability of the latter’s participation

Doctrine of interlocking confessions

Extrajudicial statements of co-accused may be taken as circumstantial evidence against
the person implicated to show the probability of the latter’s actual participation, provided
that the statements are made by several accused are:
1. Made without collusion
2. Identical with each other in their essential details;
3. Corroborated by other evidence on record.

Section 32. Admission by privies. - Where one derives title to property from another,
the latter's act, declaration, or omission, in relation to the property, is evidence against
the former if done while the latter was holding the title.

Privies
Persons who are partakers or have an interest in any action or thing, or any relation to
another.

It denotes the idea of succession, not only by right of heirship and testamentary legacy,
but also that of succession by singular title, derived from acts inter vivos, and for special
purposes. (example: assignee of a credit and one subrogated to it are privies.)
Requisites for Admissibility
1. One derives title to property from another
2. The act, declaration, or omission
a. of the latter (the person from whom title is derived)
b. while holding the title
c. in relation to the property
3. is evidence against the former (one who derives title from another)

Section 33. Admission by silence. - An act or declaration made in the presence and

within the hearing or observation of a party who does or says nothing when the act or
declaration is such as naturally to call for action or comment if not true, and when
proper and possible for him or her to do so, may be given in evidence against him or
her.

Requisites: When silence is deemed an admission

1. Person heard or understood the statement;
2. That he was at a liberty to make a denial;
3. That the statement was about a matter affecting his rights or in which he was
interested and which naturally calls for a response;
4. That the facts were within his knowledge; and
5. That the fact admitted from his silence is material to the issue

This rule applies even when a person was surprised in the act or even if he was already
in the custody of the police