Evidence Bar Q & A
1. Give the reasons underlying the adoption of the following rules of evidence:
(a) Dead Man Rule
(b) Parol Evidence Rule
(c) Best Evidence Rule
(d) The rule against the admission of illegally obtained extrajudicial
confession
(e) The rule against the admission of an oiler of compromise in civil
cases
ANSWER:
The reasons behind the following rules are as follows:
(a) Dead Man Rule: If death has closed the lips of one party, the policy of the law is to close the lips of the
other. (Goni v. Court of Appeals, L-77434. September 23.1986.144 SCRA 222). This is to prevent the
temptation to perjury because death has already sealed the lips of the party.
(b) Parol Evidence Rule: It is designed to give certainty to a transaction which has been reduced to writing,
because written evidence is much more certain and accurate than that which rests on fleeting memory only.
(Francisco, Revised Rules of Court, Vol. VII, Part I. p. 154)
(c) Best Evidence Rule: This Rule is adopted for the prevention of fraud and is declared to be essential to the
pure administration of Justice. (Moran, Vol. 5, p. 12.) If a party is in possession of such evidence and
withholds it, the presumption naturally arises that the better evidence is with- held for fraudulent purposes.
(Francisco, Revised Rules of Court vol. VII, Part I, pp. 121,122)
(d) An illegally obtained extrajudicial confession nullifies the intrinsic validity of the confession and renders it
unreliable as evidence of the truth. (Moran, vol. 5. p. 257). It is the fruit of a poisonous tree.
(e) The reason for the rule against the admission of an offer of compromise in civil case as an admission of
any liability is that parties are encouraged to enter into compromises. Courts should endeavor to persuade
the litigants in a civil case to agree upon some fair compromise. (Art. 2029, Civil Code). During pre-trial,
courts should direct the parties to consider the possibility of an amicable settlement. (Sec. 1 (a) of former
Rule 20: Sec. 2 (a) of new Rule 18).
ALTERNATIVE ANSWER:
(b) The reason rests on a presumption of integration of jural acts which advocates that a written contract
merges or integrates all prior and contemporaneous negotiations and that the instrument has incorporated
all terms that the parties have agreed upon. (9 Wigmore,Sec. 2425 p. 75(1981 ed)
(a) This provides the constitutional right of the accused to protect himself against self- incrimination because
of the police dominated atmosphere.
2. If the result of such test shows that he is HIV positive, and the prosecution offers such result
in evidence to prove the qualifying circumstance under the information for qualified rape, should the court
reject such result on the ground that it is the fruit of a poisonous tree? Explain. (8%)(2005 Bar Question)
SUGGESTED ANSWER:
The fruits of the poisonous tree doctrine applies only where the primary source is shown to have been
unlawfully obtained or was the result of an illegal act (People v. Alicando, G.R. No. 117487, 251 SCRA 293
[1995]) Since the rights of the accused are not violated because the compulsory testing is authorized by law,
the result of the testing cannot be considered to be the fruit of a poisonous tree and can be offered in
evidence to prove the qualifying circumstance under the information for qualified rape under Republic Act
No. 8353.
3. May a private document be offered and admitted in evidence both as documentary evidence
and as object evidence? Explain. (2005 Bar Question)
SUGGESTEDANSWER:
Yes. A private document may be offered and admitted in evidence both as documentary evidence and as
object evidence. A 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. (Sec. 1, Rule 130, Rules of Court.) Documentary
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. (Sec. 2, Rule 130, Rules of Court) A
tombstone may be offered in evidence to prove what is written on it and if the same tombstone is found on a
tomb, then it is object evidence. It can be considered as both documentary and object evidence. (See Gupit,
Jr., Revised Rules of Evidence, 1989, p. 12.)
4. TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is false.
Explain your answer in not more than two (2) sentences. (5%)
(a) The Vallejo standard refers to jurisprudential norms considered by the court in assessing
the probative value of DNA evidence. (2009 Bar Question)
SUGGESTED ANSWER:
TRUE. In People v. Vallejo, 382 SCRA192 (2002), it was held that in assessing the probative value of DNA
evidence, 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, and the
qualification of the analyst who conducted the tests.
5. While window-shopping at the mall on August 4, 2008, Dante lost his organizer including his
credit card and billing statement. Two days later, upon reporting the matter to the credit card company, he
learned that a. one-way airplane ticket was purchased online using his credit card for a flight to Milan in
mid-August 2008. Upon extensive inquiry with the airline company, Dante discovered that the plane ticket
was under the name of one Dina Meril. Dante approaches you for legal advice. Suppose an Information is
filed against Dina on August 12, 2008 and she is immediately arrested. What pieces of electronic evidence
will Dante have to secure in order to prove the fraudulent online transaction? (2%) (2010 Bar Question)
SUGGESTED ANSWER:
He will have to present (a) his report to the bank that he lost his credit card (b) that the ticket was purchased
after the report of the lost add.(c) the purchase of one-way ticket.
Dante should bring an original (or an equivalent copy) printout of: 1)the online ticket purchase using his
credit card; 2) the phone call log to show that he already alerted the credit card company of his loss; and 3)
his credit card billing statement-bearing the online ticket transaction.
6. On March 12, 2008, Mabini was charged with Murder for fatally stabbing Emilio. To prove
the qualifying circumstance of evident premeditation, the prosecution introduced on December 11, 2009 a
text message, which Mabini's estranged wife Gregoria had sent to Emilio on the eve of his death, reading:
"Honey, pa2tayin u ni Mabini. Mtgaln nyang plano i2. Mg ingat u bka ma tsugi k." (2010 Bar Question)
A. A subpoena ad testificandum was served on Gregoria. For her to be presented
for the purpose of identifying her cellphone and the text message. Mabini objected to her Presentation on
the ground of marital privilege. Resolve. (3%)
SUGGESTED ANSWER:
The objection should be sustained on the ground of the marital disqualification rule (Rule 130, Sec. 22); not
on the ground of the "marital privilege" communication rule. (Rule 130, Sec. 24). The marriage between
Mabini and Gregoria is still subsisting and the situation at bar does not come under the exceptions to the
disqualification by reason of marriage.
7. On August 15,2008, Edgardo committed estafa against Petronilo in the amount of P3
Million. Petronilo brought his complaint to the National Bureau of Investigation, which found that Edgardo
had visited his lawyer twice, the first time on August 14, 2008 and the second on August 16, 2008; and that
both visits concerned the swindling of Petronilo. During the trial of Edgardo, the RTC issued a subpoena ad
testificandum to Edgardo’s lawyer for him to testify on the conversations during their first and second
meetings. May the subpoena be quashed on the ground of privileged communication? Explain fully. (4%)
SUGGESTED ANSWER:
No, The subpoena may not be simply quashed on the allegation that the testimony to be elicited constitutes
privileged communication. It may be noted that the accused committed the crime of swindling on August
15, 2008, whereas he first visited his lawyer on August 14, 2008 or before he committed the swindling.
Clearly the conversations the accused had with his lawyer during such first visit, before he committed the
swindling cannot be protected by the privilege between attorney and client because the crime had not been
committed yet and it is no part of a lawyer’s professional duty to assist or aid in the commission of a crime;
hence not in the course of professional employment. The second visit by accused Edgardo to his lawyer on
the next day (August 16, 2008) after the swindling was committed may also suffer from the same infirmity as
the conversations had during their first meeting inasmuch as there could not be a complaint made
immediately after the estafa was committed. The privilege covering a lawyer-client relation under Sec. 24,
(par(b), Rule 130, may not be invoked, as it is not a ground for quashal of a subpoena ad testificandum
under Section 4, Rule 21 of the Rules of Court.
Although the subpoena ad testificandum may not be quashed the privilege covers conversations “with a view
to professional employment." It can be invoked at the trial but not to quash the subpoena.
8. A tugboat owned by Speedy Port Service, Inc. (SPS) sank in Manila Bay while helping tow
another vessel, drowning five (5) of the crew in the resulting shipwreck. At the maritime board inquiry, the
four (4) survivors testified. SPS engaged Atty. Ely to defend it against potential claims and to sue the
company owning the other vessel for damages to the tug. Ely obtained signed statements from the survivors.
He also interviewed other persons, in some instance making memoranda. The heirs of the five (5) victims
filed an action for damages against SPS. Plaintiffs counsel sent written interrogatories to Ely, asking whether
statements of witnesses were obtained; if written, copies were to be .furnished; if oral, the exact provisions
were to be set forth in detail. Ely refused to comply, arguing that the documents and information asked are
privileged communication. Is the contention tenable? Explain. (4%)(2008 Bar Question)
SUGGESTED ANSWER:
Yes, the contention of counsel for SPS is tenable considering that he was acting in his professional capacity in
bringing about the statement he obtained from witnesses and the memoranda he made. The notes,
memoranda, and writings made by counsel in pursuance of his professional duty, form part of his private
and confidential files in the cases handled by him; hence privileged (Air Philippines Corp. v. Pennswell, Inc.,
540 SCRA 215 [2007]).
ANOTHER SUGGESTED ANSWER:
The oral statements secured by the lawyer from the witnesses may not be the subject of discovery procedure
not because they are privileged communication but because of the danger of untruthfulness and inaccuracy.
The account of the lawyer is likewise hearsay evidence. Besides, plaintiffs’ counsel may obtain transcripts of
the testimonies of the four survivors before the maritime board inquiry.
On the other hand, under Rule 23, the lawyer may be examined regarding the existence of the written
statements of the survivors, including the description, nature, and custody thereof, not being privileged
communication. (Hickman v. Taylor, 329 US 495[1947]).
9. X and Y were charged with murder. Upon application of the prosecution, Y was discharged
from the Information to be utilized as a state witness. The prosecutor presented Y as witness but forgot to
state the purpose of his testimony much less offer it in evidence. Y testified that he and X conspired to kill
the victim but it was X who actually shot the victim. The testimony of Y was the only material evidence
establishing the guilt of X. Y was thoroughly cross- examined by the defense counsel. After the prosecution
rested its case, the defense filed a motion for demurrer to evidence based on the following grounds:
(a) The testimony of Y should be excluded because its purpose was not initially stated and it
was not formally offered in evidence as required by Section 34, Rule 132 of the Revised Rules
of Evidence: and
(b) Y’s testimony is not admissible against X pursuant to the rule on “res inter alios acta",
Rule on the motion for demurrer to evidence on the above grounds. (2003 Bar Question)
SUGGESTED ANSWER:
The demurrer to the evidence should be denied because:
(a) The testimony of Y should not be excluded because the defense counsel did not object to his testimony
despite the fact that the prosecutor forgot to state its purpose or offer it in evidence. Moreover, the defense
counsel thoroughly cross-examined Y and thus waived the objection.
(b) The res inter alios acta rule does not apply because Y testified in open court and was subjected to cross
examination.
10. X was arrested for the alleged murder of a 6-year Old lad. He was read his Miranda rights
immediately upon being apprehended. In the course of his detention, X was subjected to three hours of
non-stop interrogation. He remained quiet until, on the 3rd hour, he answered "yes" to the question of
whether "he prayed for forgiveness for shooting down the boy." The trial court) interpreting X's answer as an
admission of guilt, convicted him. On appeal, X's counsel faulted the trial court in its interpretation of his
client's answer, arguing that X invoked his Miranda rights when he remained quiet for the first two hours of
questioning. Rule on the assignment of error. (3%) (2010 Bar Question)
SUGGESTED ANSWER:
The assignment of error invoked by X's counsel is impressed with merit since there has been no express
waiver of X's Miranda rights. In order to have a valid waiver of the Miranda rights, the same must be in
writing and made in the presence of his counsel. The uncounseled extrajudicial confession of X being
without a valid waiver of his Miranda rights, is inadmissible, as well as any information derived therefrom.
11. What is the hearsay rule? (5%) (2007 Bar Question)
SUGGESTED ANSWER:
The hearsay rule is a rule of evidence to the effect that a witness can testify only to those facts which he
knows of his own knowledge or derived from his own perceptions, except as otherwise provided in the Rules
of Court (Rule 130, Sec. 36, Rules of Court).
12. Blinded by extreme jealousy, Alberto shot his wife, Betty, in the presence of his sister, Carla.
Carla brought Betty to the hospital. Outside the operating room, Carla told Domingo, a male nurse, that it
was Alberto w'ho shot Betty. Betty died while undergoing emergency surgery. At the trial of the parricide
charges filed against Alberto, the prosecutor sought to present Domingo as witness, to testify on what Carla
told him. The defense counsel objected on the ground that Domingo’s testimony is inadmissible for being
hearsay. Rule on the objection with reasons. (3%) (2009 Bar Question)
SUGGESTED ANSWER:
Objection overruled. The disclosure received by Domingo from Carla may be regarded as 299
independently relevant statement which is not covered by the hearsay rule; hence admissible. The statement
may be received not as evidence of the truth of what was stated but only as to the tenor thereof and the
occurence when it was said, independently of whether it was true or false. (People v. Cloud, 333 Phil.
306[1996]; People v. Malibiran, etal., G.R. No. 178301, April 24, 2009)
ALTERNATIVE ANSWER:
Objection sustained. The disclosure made by Carla has no other probative value except to identify who shot
Betty. Its tenor is irrelevant to the incident, and the same was made not to a police investigator of the
occurrence but to a nurse whose concern is only to attend to the patient. Hence, the disclosure does not
qualify as independently relevant statement and therefore, hearsay. The nurse is competent to testify only on
the condition of Betty when rushed to the hospital but not as to who caused the injury. The prosecution
should call on Carla as the best witness to the incident.
13. In a prosecution for murder, the prosecutor asks accused Darwin if he had been previously
arrested for violation of the Anti-Graft and Corrupt Practices Act. As defense counsel, you object. The trial
court asks you on what ground / s. Respond. (3%) (2010 Bar Question)
SUGGESTED ANSWER:
The objection is on the ground that the fact sought to be elicited by the prosecution is irrelevant and
immaterial to the offense under prosecution and trial. Moreover, the Rules do not allow the prosecution to
adduce evidence of bad moral character of the accused pertinent to the offense charged, except on rebuttal
and only if it involves a prior conviction by final judgment (Rule 130, Sec. 51, and Rules of Court).
14. Alice, a resident of Valenzuela. Metro Manila, filed with the Metropolitan Trial Court thereat
a complaint for damages against her next-door neighbor Rosa for P100,000.00 with prayer for preliminary
attachment. She alleged that Rosa intrigued against her honor by spreading unsavory rumors about her
among their co-workers at the Phoenix Knitwear factory located at Valenzuela.
After pre-trial the court motu proprio referred the case for amicable settlement between the parties to the
Lupon Tagapayapa of Barangay 2. Zone 3, of Valenzuela where the factory is located. Rosa questioned the
order contending that the court had no authority to do so as both parties had already gone through pre-trial
where amicable settlement was foreclosed and the parties were already going to trial.
1. Comment-on Rosa’s contention. Explain.
2. Rosa also opposed the referral to the Lupon Tagapayapa of Barangay 2, Zone 3,
claiming that the venue was wrong as the proper Lupon was that of Barangay 1, Zone 5,
where she and Alice reside. Is Rosa’s opposition valid? Explain.
3. Suppose that the Lupon of Barangay 2. Zone 3, is successful in forging an amicable
settlement between Alice and Rosa, is the compromise immediately executory? Explain.
4. How, when and by whom shall the compromise agreement be enforced? Explain.
ANSWER:
1. Rosa is not correct. The Local Government Code provides that in non-criminal cases not falling within
the authority of the Lupon, the court may at any time before trial refer the case to the Lupon concerned for
amicable settlement. (Sec. 408)
2. No, because the law also provides that the venue of disputes arising at the workplace of the contending
parties shall be brought in the barangay where such workplace is located. (Sec. 409[d])
3. No, because any compromise settlement shall be submitted to the court which referred the case for
approval. (Sec. 416)
4. Upon approval thereof, it shall have the force and effect of a Judgment of the court and shall be enforced
in accordance with Section 6, Rule 39.
15. An amicable settlement was signed before a Lupon Tagapamayapa on January 3, 2001. On
July 6, 2001, the prevailing party asked the Lupon to execute the amicable settlement because of the non-
compliance by the other party of the terms of the agreement. The Lupon concerned refused to execute the
settlement/agreement.
a) Is the Lupon correct in refusing to execute the settlement/agreement? (3%)
b) What should be the course of action of the prevailing party in such a case? (2%)
SUGGESTED ANSWER:
a) Yes, the Lupon is correct in refusing to execute the settlement/agreement because the execution sought is
already beyond the period of six months from the date of the settlement within which the Lupon is
authorized to execute. (Sec. 417, Local Government Code of 1991)
b) After the six-month period, the prevailing party should move to execute the settlement/agreement in the
appropriate city or municipal trial court. (Id.)
16. What is the difference between a “broadside" objection and a specific objection to the
admission of documentary evidence? (1994 Bar Question)
ANSWER:
A “broadside" objection to the admission of documentary evidence is to be distinguished from a specific
objection in that a “broadside" objection is a general objection such as “incompetent, irrelevant and
immaterial", while a specific objection is limited to a particular ground.
ALTERNATIVE ANSWER:
A “broadside" objection is one which does not specify any ground.
17. What are the two kinds of objections? Explain each briefly. Given an example of each.(1997
Bar Question)
ANSWER:
Two kinds of objections are: (1) the evidence being presented is not relevant to the issue; and (2) the evidence
is incompetent or excluded by the law or the rules. (Sec. 3, Rule 138). An example of the first is when the
prosecution offers as evidence the alleged offer of an insurance company to pay for the damages suffered by
the victim in a homicide case. (See question No. 14).
Examples of the second are evidence obtained in violation of the Constitutional prohibition against
unreasonable searches and seizures and confessions and admissions in violation of the rights of a person
under custodial investigation.
ALTERNATIVE ANSWERS:
1) Specific objections : Example: parol evidence and best evidence rule
General Objections: Example: continuing objections (Sec. 37 of Rule 132).
2) The two kinds of objections are: (1) objection to a question propounded in the course of the oral
examination of the witness and (2) objection to an offer of evidence in writing. Objection to a question
propounded in the course of the oral examination of a witness shall be made as soon as the grounds therefor
shall become reasonably apparent, otherwise, it is waived. An offer of objection in writing shall be made
within three (3) days after notice of the offer, unless a different period is allowed by the court. In both
instances the grounds for objection must be specified. An example of the first is when the witness is being
cross-examined and the cross examination is on a matter not relevant. An example of the second is that the
evidence offered is not the best evidence.
18. Linda and spouses Amulfo and Regina Ceres were coowners of a parcel of land. Linda died
intestate and without any issue. Ten (10) persons headed by Jocelyn, claiming to be the collateral relatives of
the deceased Linda, filed an action for partition with the Regional Trial Court praying for the segregation of
Linda’s 1/2 share, submitting in support of their petition the baptismal certificates of seven of the
petitioners, a family bible belonging to Linda in which the names of the petitioners have been entered, a
photocopy of the birth certificate of Jocelyn, and a certification of the local civil registrar that its office had
been completely razed by fire. The spouses Ceres refused to partition on the following grounds: 1) the
baptismal certificates of the parish priest are evidence only of the administration of the sacrament of
baptism and they do not prove filiation of the alleged collateral relatives of the deceased; 2) entry in the
family bible is hearsay; 3) the certification of the registrar on non- availability of the records of birth does
not prove filiation; 4) in partition cases where filiation to the deceased is in dispute, prior and separate
judicial declaration of heirship in a settlement of estate proceedings is necessary; and 5) there is need for
publication as real property is involved. As counsel for Jocelyn and her co-petitioners, argue against the
objections of the spouses Ceres so as to convince the court to allow the partition. Discuss each of the five (5)
arguments briefly but completely. (10%) (2000 Bar Question)
SUGGESTED ANSWER:
1) The baptismal certificate can show filiation or prove pedigree. It is one of the other means
allowed under the Rules of Court and special laws to show pedigree. (
2) Entries in the family bible may be received as evidence of pedigree. (Sec. 40, Rule 130, Rules of Court).
3) The certification by the civil registrar of the non-availability of records is needed to justify the
presentation of secondary evidence, which is the photocopy of the birth certificate of Jocelyn. (Heirs of
Ignacio Conti v. Court of Appeals, supra.)
4) Declaration of heirship in a settlement proceeding is not necessary. It can be made in the ordinary action
for partition wherein the heirs are exercising the right pertaining to the decedent, their predecessor-in-
interest, to ask for partition as co-owners (Id.).
5) Even if real property is involved, no publication is necessary, because what is sought is the mere
segregation of Linda’s share in the property. (Sec. 1 of Rule 69; Id.)
19. While sleeping under a tree, Kintanar was stabbed several times by a man, sustaining multiple
stab wounds on his chest with blood spurting therefrom. Bathed in his own blood, Kintanar rushed to his
house where he was met by his wife. Kintanar informed his wife that it was Gonzales who stabbed him. On
the way to the hospital, Kintanar kept on saying that it was Gonzales who stabbed him. He died while
undergoing surgery at the hospital.
Convicted for the killing of Kintanar, Gonzales questioned the admission in evidence of the ante-mortem
statement of Kintanar to his wife. He argued that from the abovecited facts, there is no indication that the
aforesaid statement was made by the victim under consciousness of an impending death.
Can the subject statement be considered a dying declaration? Why? (1993 Bar Question)
ANSWER:
Yes, the statement that it was Gonzales who stabbed him can be considered a dying declaration because it
concerned the crime and surrounding circumstances of declarant's death; it was made with consciousness of
impending death as shown by the fact that he died while undergoing surgery at the hospital; the declarant
was competent as a witness; and the declaration was offered in a criminal case in which declarant was the
victim.
ALTERNATIVE ANSWER:
Even if the statement cannot be considered a dying declaration, it was admissible as part of the res gestae.
20. 1. If the accused on the witness stand repeats his earlier uncounseled extrajudicial confession
implicating his co-accused in the crime charged, is that testimony admissible in evidence
against the latter? (3%)
2. What is the probative value of a witness’ Affidavit of Recantation? (2%]
SUGGESTED ANSWER:
1. Yes. The accused can testify by repeating his earlier uncounseled extrajudicial confession, because he can
be subjected to cross-examination.
2. On the probative value of an affidavit of recantation, courts look with disfavor upon recantations because
they can easily be secured from witnesses, usually through intimidation or for a monetary consideration.
Recanted testimony is exceedingly unreliable. There is always the probability that it will be repudiated.
(Molina vs. People, 259 SCRA 138.)
