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evidence | 1st sem, 2011-2012 ysr

PART ONE

I. GENERAL PROVISIONS

A. Rule128: General Provisions

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. (1)

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. (2a)

Bustos v. Lucero: R128, §1 provides the legal definition of
evidence – Evidence is the mode and manner of proving
competent facts in judicial proceedings.

Proof: result or effect of evidence.
Proof of such fact: when requisite quantum of evidence of a
particular fact has been duly admitted and given weight

Factum probandum: ultimate fact; fact sought to be
established. Refers to the proposition
Factum probans: evidentiary fact; fact by w/c the factum
probandum is to be established. Refer to the materials which
establish that proposition

Law of evidence
• fundamentally a procedural law (Bustos v. Lucero)
• §5[5], Art. VIII, Consti: SC shall promulgate rules

concerning pleadings, practice and procedure w/c shall
be uniform for all courts of the same grade & shall not
diminish, increase or modify substantive rights
o new rules may be validly applied to cases pending

at time of such change (Aldeguer v. Hoskyn)
o BUT in criminal cases, if alteration of evidence rules

would allow reception of lesser quantum of
evidence than what the law required at the time
the offense was committed in order to convict =
retroactive application is unconstitutional for being
ex post facto

primarily found in RoC (R 128-133)
special laws (Ex. RA 4200 [Anti-Wiretapping Law], Code of

Commerce, CC)
Consti – see Part B.

The rules of evidence are specifically applicable ONLY in
judicial proceedings.

• Quasi-judicial proceedings: the same apply by analogy,
or in a suppletory character and whenever practicable
and convenient (R1 §4) EXCEPT where the governing
law or that particular proceeding specifically adopts the
rules of evidence in RoC

Classification of evidence according to form
1) Object (real) evidence (§1, R130)

That which is directly addressed to the senses of the
court and consists of tangible things exhibited or
demonstrated in open court, in an ocular inspection, or
at a place designated by the court for its view or
observation of an exhibition, experiment or
demonstration.
• The ascertainment of the controverted fact is made

through the direct use of the different senses of the
presiding magistrate or his authorized delegate.

• Referred to by Wigmore as evidence by “autoptic
preference,” i.e. by presenting in open court the
evidentiary articles for the observation or inspection
of the tribunal

2) Documentary evidence (§§2-19, R130)
Evidence supplied by written instruments or derived
from conventional symbols, such as letters, by which
ideas are represented on material substances.
• Specific definition found in §2, R130

3) Testimonial evidence
That which is submitted to the court through the
testimony or deposition of a witness

Other classifications of evidence
1) Relevant, material, and competent evidence

a) Relevant evidence: evidence having any value in
reason as tending to prove any matter provable in
an action

b) Material evidence: evidence directed to prove a fact
in issue as determined by the rules of substantive
law and pleadings

c) Competent evidence: one that is not excluded by
the Rules, a statute, or the Constitution

Test of relevancy
The logical relation of the evidentiary fact to the fact in
issue, i.e. whether the former tends to establish the
probability or improbability of the latter

Materiality of evidence
Determined by whether the fact it intends to prove is in
issue or not, w/c is in turn determined by the substantive
law, the pleadings, the pre-trial order and by the
admissions or confessions on file

2) Direct and circumstantial evidence
a) Direct evidence: that which proves the fact in

dispute w/o the aid of any inference or
presumption

b) Circumstantial evidence: the proof of (a) fact/s from
which, taken either singly or collectively, the
existence of the particular fact in dispute may be
inferred as a necessary or probable consequence

3) Cumulative and corroborative evidence
a) Cumulative evidence: evidence of the same kind

and to the same state of facts
b) Corroborative evidence: additional evidence of a

different character to the same point

4) Prima facie and conclusive evidence
a) Prima facie evidence: that which, standing alone,

unexplained, or uncontradicted, is sufficient to
maintain the proposition affirmed

b) Conclusive evidence: that class of evidence which
the law does not allow to be contradicted

5) Primary and secondary evidence
a) Primary evidence: that which the law regards as

affording the greatest certainty of the fact in
question. Referred to in RoC as the best evidence

b) Secondary evidence: that which is inferior to the
primary evidence and is permitted by law only
when the best evidence is not available. Also called
substitutionary evidence

6) Positive and negative evidence

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a) Positive evidence: when the witness affirms that a
fact did or did not occur

b) Negative evidence: when the witness states he did
not see or know of the occurrence of a fact

Positive testimony is entitled to greater weight since the
witness represents of his personal knowledge the
presence or absence of a fact. In negative testimony,
there is a total disclaimer of personal knowledge, hence
without any representation or disavowal that the fact in
question could or couldn’t have existed or happened.

When a witness declares of his own knowledge that a
fact did not take place that is actually positive testimony
since it’s an affirmation of the truth of a negative fact.

RIANO:
Not every circumstance which affords an inference as to the
truth or falsity of a matter alleged is considered evidence.
• Not evidence if it’s excluded by the law or RoC even if it

proves the existence or non-existence of a fact in issue.

Definition under §1, R128 significantly considers “evidence”
not as an end in itself but merely as a “means” of ascertaining
the truth of a matter of fact.

Purpose of evidence
Ascertain the truth respecting a matter of fact in a judicial
proceeding (§1, R128)

Evidence is required because of the presumption that the
court is not aware of the veracity of the facts involved in a
case. It is incumbent upon the parties to prove a fact in issue
through the presentation of admissible evidence.

When evidence is required; when not required
• Where no factual issue exists in a case, there is no need

to present evidence because where the case presents a
question of law, such is resolved by the mere application
of the relevant statutes or rules of this jurisdiction to
which no evidence is required.

• When the pleadings in a civil case do not tender an issue
of fact, a trial need not be conducted since there is no
more reason to present evidence. Case is ripe for judicial
determination through a judgment on the pleadings per
R34

• Evidence may be dispensed with by agreement of the
parties. The parties to any action are allowed by the
Rules to agree in writing upon the facts involved in the
litigation and to submit the case for judgment upon the
facts agreed upon, without the introduction of evidence.

• Evidence is not required on matters of judicial notice (§1,
R129) and on matters judicially admitted (§4, R129)

Applicability of the rules of evidence
§4, R1 provides for the non-applicability of RoC, including
necessarily the rules of evidence, to certain specified
proceedings.

• Administrative bodies are not bound by the technical
niceties of the rules obtaining in a court of law.

• CSC conducts its investigations for the purpose of
ascertaining the truth without necessarily adhering to
technical rules of procedure applicable in judicial
proceedings.

• Ong Chia v. Republic: The rule on formal offer of
evidence is not applicable to a case involving a petition
for naturalization.

• Sasan, Sr. v. NLRC: Technical rules of evidence are not
binding in labor cases.

• Bantolino v. Coca Cola Bottlers, Inc.: The rules of
evidence are not strictly observed in proceedings before
administrative bodies where decisions may be reached
on the basis of position papers only.

Within the field of administrative law, while strict rules of
evidence are not applicable to quasi-judicial proceedings,
nevertheless, in adducing evidence constitutive of substantial
evidence, the basic rule that mere allegation is not evidence
cannot be disregarded. (Marcelo v. Bungubung)

Application of the Rules on Electronic Evidence
The provisions of the REE apply to all civil actions and
proceedings, as well as quasi-judicial and administrative cases.
(§2, R1, REE)

Scope of the rules of evidence
The rules of evidence in the RoC are guided by the principle
of uniformity. As a general policy, the rules of evidence shall
be the same in all courts and in all trials and hearings. (§2,
R128)

Evidence in civil cases v. Evidence in criminal cases
EVIDENCE IN CIVIL CASES EVIDENCE IN CRIMINAL

CASES
The party having the burden
of proof must prove his claim
by a preponderance of
evidence (§1, R133)

Guilt of accused has to be
proven beyond reasonable
doubt (§2, R133)

Offer of compromise is not
an admission of any liability,
and is not admissible in
evidence against the offeror
(§27, R130)

An offer of compromise by
the accused may be received
in evidence as an implied
admission of guilt, EXCEPT in
criminal cases involving
quasi-offenses (criminal
negligence) or those allowed
by law to be compromised

Generally there is no
presumption of innocence
for or against a party EXCEPT
in certain cases provided for
by law

The accused enjoys the
constitutional presumption of
innocence (§14, Art. III,
Constitution)

Distinction between evidence and proof

• Evidence is the medium or means by which a fact is
proved or disproved.

• Proof is not the evidence itself. It is merely the probative
effect of evidence and is the conviction or persuasion of
the mind resulting from a consideration of the evidence.
o Proof is the effect of evidence because without

evidence there is no proof.
o Bare allegations unsubstantiated by evidence are

not equivalent to proof.

Positive and negative defenses
GENERAL RULE: Positive evidence is more credible than
negative evidence.

• Reason: the witness who testifies to a negative may have
forgotten what actually occurred, while it is impossible to

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the party adversely affected thereby has the opportunity to
cross-examine the declarant. (People v. Serrano)
• The requirement that the conspiracy must preliminarily

be proved by evidence other than the conspirator’s
admission applies on to extrajudicial admissions. (People
v. Nierra)

An admission by a conspirator is admissible against his co-
conspirator if:
1. Such conspiracy is shown by evidence aliunde;
2. The admission was made during the existence of the

conspiracy; and
3. The admission relates to the conspiracy itself.

Note: These are not required in admissions during the trial as
the co-accused can cross-examine the declarant (People v.
Serrano) and, besides, these are admissions after the
conspiracy has ended. (People v. Vizcarra)

Existence of conspiracy may be inferred from:
• The acts of the accused
• The confessions of the accused
• Prima facie proof thereof

Where there is no independent evidence of the alleged
conspiracy, the extrajudicial confession of an accused cannot
be used against his co-accused as the res inter alios acta rule
applies to both extrajudicial confessions and admissions.
(People v. Alegre)

Extrajudicial admissions made by a conspirator after the
conspiracy had terminated and even before trial are not
admissible against the co-conspirator, EXCEPT:
1. if made in the presence of the latter who expressly or

impliedly agreed therein as, in the latter case, it would be
a tacit admission under §32;

2. where the facts in said admission are confirmed in the
individual extrajudicial confessions made by the co-
conspirators after their apprehension;

3. as a circumstance to determine a witness’ credibility; or
4. as circumstantial evidence to show the probability of the

latter’s participation in the offense.

In order that the extrajudicial statements of a co-accused may
be taken into consideration in judging the testimony of a
witness, it is necessary that the statements are made by
several accused, the same are all in material respects identical,
and there could have been no collusion among said co-
accused in making such statements. (People v. Badilla)

Cases:

PEOPLE V . CABRERA (1974)
Statement not made during the existence of the alleged
conspiracy, but after said alleged conspiracy had already
ceased – rule on admission by conspirator can’t be availed of

PREAGIDO V . SANDIGANBAYAN (2005)
R130.27 applies only to extrajudicial acts or declarations, not
to testimony given on the witness stand at the trial where the
defendant has the opportunity to cross-examine the declarant

3. Admission by privies (§31, R130)
Section 31. Admission by privies. — Where one derives title to
property from another, the act, declaration, or omission of the
latter, while holding the title, in relation to the property, is
evidence against the former. (28)

Requirements to be admissible:
1. Relation of privity between the party and the declarant
2. Admission was made by the declarant, as predecessor-in-

interest, while holding the title to the property
3. Admission is in relation to said property

Privity in estate may have arisen by succession by acts mortis
causa or by acts inter vivos.

RIANO:
“Privies”: persons who are partakers or have an interest in any
action or thing, or any relation to another

Cases:

CITY OF MANILA V . DEL ROSARIO (1905)
Where one derives title to real property from another, the
declaration/act/omission of the latter in relation to the
property is evidence against the former only when made
while the latter holds the title

REPUBLIC V . SANDIGANBAYAN (2003)
The individual and separate admissions of each respondent
bind all of them pursuant to §§29 and 31, R130 of the Rules
of Court. The declarations of a person are admissible against a
party whenever a “privity of estate” exists between the
declarant and the party, the term “privity of estate” generally
denoting a succession in rights. Consequently, an admission
of one in privity with a party to the record is competent.

E. Confessions

1. §33, R130
Section 33. Confession. — The declaration of an accused
acknowledging his guilt of the offense charged, or of any
offense necessarily included therein, may be given in
evidence against him. (29a)

Confession: a categorical acknowledgment of guilt made by
an accused in a criminal case, without any exculpatory
statement or explanation.

May be oral or in writing
• If in writing, it need not be under oath

The fact that the extrajudicial confession was made while the
accused was under arrest does not render it inadmissible
where the same was made and admitted prior to the 1973
Constitution.

May be judicial or extrajudicial

• Judicial confession : one made before a court in which
the case is pending and in the course of legal
proceedings therein and, by itself, can sustain a
conviction even in capital offenses

• Extrajudicial confession : one made in any other place or
occasion and cannot sustain a conviction unless
corroborated by evidence of the corpus delicti (R133.3)
o Any form of coercion renders the extrajudicial

confession inadmissible
o The extrajudicial confession of an accused is binding

only upon himself and is not admissible against his
co-accused.

 EXCEPTIONS:

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a. Co-accused impliedly acquiesced in or
adopted said confession by not
questioning its truthfulness

b. Accused persons voluntarily and
independently executed identical
confessions without conclusion
(interlocking confessions), corroborated by
other evidence and without contradiction
by the co-accused who was present

c. Accused admitted facts stated by
confessant after being apprised of such
confession

d. They are charged as co-conspirators of
the crime confessed by one of the
accused and said confession is used only
as corroborating evidence

e. Confession is used as circumstantial
evidence to show the probability of
participation by the co-conspirator

f. Confessant testified for his co-defendant
g. Co-conspirator’s extrajudicial confession is

corroborated by other evidence of record

Requirements for confession to be admissible:
1. Confession must involve an express and categorical
acknowledgment of guilt
2. Facts admitted must be constitutive of a criminal offense
3. Given voluntarily

• Confessions are presumed to be voluntary. The
onus is on the defense to prove that it was
involuntary for having been obtained by violence,
intimidation, threat or promise of reward or leniency

• Why involuntary confessions are inadmissible
o Unreliable
o Humanitarian considerations
o Legal considerations of their being violative of

the constitutional right against self-
incrimination

4. Intelligently made
5. No violation of §12, Art. III of the 1987 Constitution

• Waiver of right to counsel during custodial
investigation must be made with the assistance of
counsel

• When the accused was merely told of his
constitutional rights and asked if he understood
what he was told, but he was never asked whether
he wanted to exercise or avail himself of such rights,
his extrajudicial confession is inadmissible.

• Where the verbal extrajudicial confession was made
without counsel, but spontaneously made by the
accused immediately after the assault, the same is
admissible not under the confession rule, but as part
of the res gestae, aside from the consideration that
no custodial investigation was involved.

Inadmissible evidence termed as “fruit of the poisonous tree”
refers to object, not testimonial evidence; it also refers to an
object seized in the course of an illegal search and seizure. It
does not refer to testimony or a confession obtained through
an illegal arrest.

2. §3, R133
Section 3. Extrajudicial confession, not sufficient ground for
conviction. — An extrajudicial confession made by an
accused, shall not be sufficient ground for conviction, unless
corroborated by evidence of corpus delicti. (3)

Refer to notes under previous part (R130.33).

Corpus delicti : the body or substance of the crime
The actual commission by someone of the particular crime
charged. It’s a common fact made up of 2 things: a) the
existence of a certain act or result forming the basis of the
criminal charge, and b) the existence of a criminal agency as
the cause of the act or the result.

Proved when the evidence on record shows that the
crime prosecuted had been committed

A mere voluntary extrajudicial confession uncorroborated by
independent proof of the corpus delicti is insufficient to
sustain a judgment of conviction. There must be independent
proof of the corpus delicti. The evidence may be
circumstantial but, just the same, there should be some
evidence substantiating the confession. (US v. de la Cruz)

3. §§ 12 & 17, Art. III, 1987 Constitution
Art. III, Sec. 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 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.

Art. III, Sec. 17. No person shall be compelled to be a witness
against himself.

Cases:
PEOPLE V . COMPIL (1995)
Right to counsel attaches upon the start of investigation
(when investigating officer asks questions to get info etc.). At
such point, the person being interrogated must be assisted by
counsel. The belated arrival of the lawyer, even if prior to the
signing of the uncounseled [extrajudicial] confession does not
cure the defect.

PEOPLE V . WANG CHUEN MING (1996)
Signatures of the accused on the boxes [they were made to
sign while at NAIA and again on bags when already taken in
custody], which are tantamount to uncounseled extrajudicial
confessions, are inadmissible as evidence for being
unconstitutional.

PEOPLE V . SUAREZ (1997)
Doctrine of interlocking confessions (EXCEPTION to RIAA and
hearsay rule
• Although an extrajudicial confession is admissible only

against the confessant, jurisprudence makes it admissible

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Not only the prior and coetaneous actuations of the accused
in relation to the crime but also his acts or conduct
subsequent thereto can be considered as circumstantial
evidence of guilt.

While the motive of the accused is generally immaterial not
being an element of the crime, such motive becomes
important when the evidence of the crime is purely
circumstantial.

RIANO:
A conviction based on circumstantial evidence must exclude
each and every hypothesis consistent w/ innocence. If the
totality of the circumstances eliminates beyond reasonable
doubt the possibility of innocence, conviction is proper.

Cases:

UNGSOD V . PEOPLE
• Circumstantial evidence: that w/c goes to prove a fact or

series of facts other than the facts in issue, which, if
proved, may tend by inference to establish a fact in issue.

• Standard that courts should observe in appreciating
circumstantial evidence, as discussed in People v.
Modesto:

“No general rule can be laid down as to the
quantity of circumstantial evidence which in any case
will suffice. All the circumstances proved must be
consistent with each other, consistent with the
hypothesis that the accused is guilty, and at the same
time inconsistent with the hypothesis that he is innocent,
and with every other rational hypothesis except that of
guilt.

It has been said, and we believe correctly, that the
circumstances proved should constitute an unbroken
chain which leads to one fair and reasonable conclusion
which points to the accused, to the exclusion of all
others, as the guilty person. From all the circumstances,
there should be a combination of evidence which in the
ordinary and natural course of things leaves no room for
reasonable doubt as to his guilt.”

MARTURILLAS V . PEOPLE
Conviction in a criminal case does not require a degree of
proof that, excluding the possibility of error, produces
absolute certainty. Only moral certainty is required or that
degree of proof that produces conviction in an unprejudiced
mind.

PEOPLE V . VILLANUEVA
To sustain a conviction under a single prosecution witness,
such testimony needs only to establish sufficiently: 1) the
identity of the buyer, seller, object and consideration; and 2)
the delivery of the thing sold and the payment thereof.

PEOPLE V . DEL MUNDO
On the non-presentation of the informant, the rule is that his
presentation in an illegal drugs case is not essential for the
conviction nor is it indispensable for a successful prosecution
because his testimony would merely be corroborative and
cumulative. Informants are generally not presented in court
because of the need to hide their identity and preserve their
invaluable service to the police. Here, the agents directly
testified regarding the entrapment, and the testimony of the
informant would merely have been corroborative

PEOPLE V . PADUA
Conviction based on circumstantial evidence can be upheld,
provided the circumstances proven constitute an unbroken
chain which leads to one fair and reasonable conclusion that
points to the accused, to the exclusion of all others, as the
guilty person.

C. Administrative cases (R133.5)
Sec. 5. Substantial evidence. — In cases filed before
administrative or quasi-judicial bodies, a fact may be deemed
established if it is supported by substantial evidence, or that
amount of relevant evidence which a reasonable mind might
accept as adequate to justify a conclusion. (n)

Substantial evidence doesn’t necessarily mean preponderant
proof as required in ordinary civil cases, but such kind of
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion (Biak-na-bato Mining Co. v.
Tanco), or evidence commonly accepted by reasonably
prudent men in the conduct of their affairs. (EO 292)

Cases:

REYES V . MANGINO
• It is settled that in administrative proceedings, the burden

of proof that the respondent committed the acts
complained of rests on the complainant.

• Even in administrative cases, the Rules of Court requires
that if a judge should be disciplined for grave
misconduct or any graver offense, the evidence against
him should be competent and derived from direct
knowledge. The judiciary to which the respondent
belongs demands no less. Before any of its members
could be faulted, competent evidence should be
presented, since the charge is penal in character. Thus,
the ground for the removal of a judicial officer should be
established beyond reasonable doubt. Such is the rule
where the charge on which removal is sought is
misconduct in office, willful neglect, corruption, or
incompetence. The general rules in regard to
admissibility of evidence in criminal trials apply.

RAMOS VDA . DE BRIGINO V . RAMOS
Findings of fact of administrative agencies and quasi-judicial
bodies, which have acquired expertise because their
jurisdiction is confined to specific matters, are generally
accorded not only respect, but finality when affirmed by the
Court of Appeals. Such findings deserve full respect and,
without justifiable reason, ought not to be altered, modified
or reversed.

D. Credibility of witnesses

RIANO:
Credibility of the witness refers to the believability of the
witness and has nothing to do with the law or the rules. It
refers to the weight and trustworthiness or reliability of the
testimony.
• 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.

Cases:

PEOPLE V . DOMINGCIL

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The evaluation by the trial court of the credibility of witnesses
is entitled to the highest respect and will not be disturbed on
appeal unless certain facts of substance and value were
overlooked which, if considered, might affect the result of the
case.

PEOPLE V . ALCANTARA
We have followed the rule in accord with human nature and
experience that honest inconsistencies on minor and trivial
matters serve to strengthen, rather than destroy, the credibility
of a witness, especially of witnesses to crimes shocking to
conscience and numbing to senses.

E. Termination of presentation of evidence (R133.6)
Sec. 6. Power of the court to stop further evidence. — The
court may stop the introduction of further testimony upon
any particular point when the evidence upon it is already so
full that more witnesses to the same point cannot be
reasonably expected to be additionally persuasive. But this
power should be exercised with caution. (6)

The court has the power to stop the introduction of
testimony which will merely be cumulative. (Guinea v. Vda de
Pamonal)

Case:

PEOPLE V . SUBIDA
While justice must be administered with dispatch, the
essential ingredient is that the proceedings must be orderly
expeditious and not merely speedy. The judicial conscience
certainly cannot rest easy on a conviction based solely on
prosecution evidence just because the presentation of the
defense evidence had been barred by technicality.

• Records show that respondent was present during the
trial and presumably was ready to continue with the
presentation of his evidence and the testimony of his
witnesses. He had no inkling why his counsel did not
appear for trial. That the absence of his counsel could
not have been deliberate is evidenced by the fact that it
was only he who was absent.

F. Evidence on motion (R133.7)
Sec. 7. Evidence on motion. — When a motion is based on
facts not appearing of record the court may hear the matter
on affidavits or depositions presented by the respective
parties, but the court may direct that the matter be heard
wholly or partly on oral testimony or depositions. (7)

While the court may hear and rule upon motions solely on
the basis of affidavits or counter-affidavits, if the affidavits
contradict each other on matters of fact, the court can have
no basis to make its findings of fact and the prudent course is
to subject the affiants to cross-examination so that the court
can decide whom to believe. (Sapida v. De Villanueva)

Cases:

BRAVO , JR . V . BORJA
Evidence of petitioner's minority was already a part of the
record of the case [copy of birth cert attached in his
memorandum in support of the motion for bail]. It was
properly filed in support of a motion. It would be a needless
formality to offer it in evidence. Respondent Judge therefore
acted with grave abuse of discretion in disregarding it.

PEOPLE V . MONTEIRO
The trial court should have applied R133.7 on evidence on
motion. In Sapida v De Villanueva, the SC had ruled that
“while the court may rule upon motions solely on the basis of
affidavits and counter-affidavits, if the affidavits contradict
each other on matters of fact, the court can have no basis to
make its findings of facts and the prudent course is to subject
the affiants to cross-examination so that the court can decide
whom to believe.”

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