Tender of excluded evidence | Offer and Objection (RULE 132) | EVIDENCE

TENDER OF EXCLUDED EVIDENCE UNDER THE PHILIPPINE RULES OF COURT
(Rule 132, particularly under the provisions on Offer and Objection)

Below is an exhaustive discussion on Tender of Excluded Evidence, its legal basis, procedural mechanics, and practical considerations under Philippine remedial law.

I. LEGAL BASIS AND NATURE

  1. Governing Rule

    • The primary legal provision for Tender of Excluded Evidence is found in Rule 132 of the Rules of Court, particularly Section 40 or 41 (depending on the numbering prior to or after certain amendments). The rule specifies the procedure by which a party can make a “tender of excluded evidence” (also known as an “offer of proof”).

  2. Purpose

    • The rule ensures that if a trial court excludes evidence—whether testimonial or documentary—the proponent of such evidence can still preserve that evidence on the record.
    • This preservation is crucial if the proponent later appeals the case, because the appellate court will not ordinarily consider excluded evidence unless it appears on the record. By formally putting it on record (though excluded), the appellate court can review and determine if the lower court erred in its exclusion.

  3. Definition

    • Tender of Excluded Evidence (or Offer of Proof) is a procedural mechanism wherein the party whose evidence has been disallowed by the court makes a formal offer, accompanied by a short statement or explanation of what the excluded evidence would have shown had it been admitted, and/or appends the excluded documentary or object evidence to the record.

II. WHEN TO MAKE THE TENDER

  1. Timing

    • A tender of excluded evidence is typically made immediately after the court rules against the admissibility of the proffered evidence.
    • It is best practice to do so right away, to avoid any gaps in the record. If it is not feasible to do it right at the moment of exclusion, the party must request an opportunity from the court to make the tender at the soonest possible time (e.g., at the end of the hearing day).

  2. Necessity of Promptness

    • Delay or failure to make a tender of excluded evidence can result in waiver of the right to have that evidence considered on appeal.
    • Appellate courts typically will not consider arguments regarding the erroneous exclusion of evidence unless there is a proper offer of proof in the record.

III. FORM AND CONTENTS OF THE TENDER

  1. Oral Offer vs. Written Offer

    • The Rules generally allow an oral offer of evidence in open court, except when the court directs otherwise or in special proceedings where the court might require a written manifestation.
    • For excluded evidence, the proponent can make an oral manifestation on the record, stating what the evidence is and what it is intended to prove.
    • A written tender may also be done, especially for documentary or object evidence, to ensure clarity and precision.

  2. Specificity of the Offer

    • The tender must describe the evidence being offered and state the purpose for which it is offered. For instance:
      • If the excluded evidence is testimonial, the proponent must summarize or specify the questions to be asked and what answers are expected to be elicited.
      • If the evidence is documentary or object evidence, the proponent must submit the actual document or object (or its copy, if appropriate) as part of the tender and state what the document or object proves.

  3. Short Statement or Argument

    • Typically, the proponent should include a concise argument supporting the admissibility or relevance of the evidence (i.e., why the court erred in excluding it). While the trial judge may not reverse the ruling immediately, this provides the higher court a succinct reasoning behind the proponent’s stance.

IV. PROCEDURE FOR TENDERING EXCLUDED EVIDENCE

  1. Offer

    • The proponent offers the evidence for the record and states its nature, purpose, and relevance.

  2. Marking of the Evidence (If Documentary or Object)

    • If documentary, the proponent usually has it pre-marked during the pre-trial or during the presentation of evidence. Even if excluded, it must still be properly marked and identified.
    • The court stenographer or clerk should be directed to attach or annex the excluded evidence to the record for clarity.

  3. Dictation into the Record (If Testimonial)

    • If it is testimony that was excluded, counsel may request the court that the excluded questions and the expected answers be dictated into the transcript (or an offer of proof in writing may be submitted).
    • This allows the appellate court to see precisely what testimony was offered and excluded, preserving the substance of that testimony for review.

  4. Ruling

    • The trial court typically maintains the exclusion but the proponent’s tender and arguments form part of the record. The court’s ruling stands unless reversed upon motion for reconsideration or on appeal.

V. EFFECT OF FAILURE TO TENDER

  1. Waiver of Objection

    • If a party fails to make a proper tender or offer of proof, they effectively lose the right to question the exclusion of that evidence on appeal. The appellate court will consider the issue as waived, because there is no basis in the record to evaluate whether the exclusion was proper or prejudicial.

  2. Protecting the Right to Appeal

    • Therefore, from a litigation strategy standpoint, a timely tender of excluded evidence is vital. It is a hallmark of effective representation to ensure the record is complete for potential appellate review.

VI. JURISPRUDENTIAL GUIDANCE

  1. Supreme Court Rulings on Tender

    • The Philippine Supreme Court has repeatedly emphasized that a trial court’s ruling excluding evidence is not automatically reversible error. The appellant must show both:
      1. The nature and purpose of the evidence, and
      2. How the exclusion of that evidence caused prejudice to the proponent’s case.
    • Without a proper tender of excluded evidence, it is nearly impossible to prove on appeal that the exclusion was prejudicial.

  2. Illustrative Cases

    • Reman Corp. v. Court of Appeals, G.R. No. ____ (example placeholder). Some decisions highlight that an offer of proof is a must. The Supreme Court often cites the principle that “an appellate court will not consider an excluded document or testimony unless it appears in the record by an offer of proof.”
    • Although no single Supreme Court case exhaustively covers every nuance on tender of excluded evidence, the principle is well established in multiple rulings dealing with evidentiary challenges on appeal.

VII. BEST PRACTICES AND TIPS

  1. Prepare in Advance

    • Anticipate possible objections by the opposing party or the court. Have your justification for admissibility ready in written form, so if exclusion happens, you can quickly read it into the record or attach it.

  2. Be Thorough Yet Concise

    • When making the tender, provide all relevant details (exhibit numbers, references, nature of the document) but do not ramble. Concision aids clarity and helps appellate courts easily see the issue.

  3. Coordinate with the Court Stenographer

    • If testifying, it is helpful to instruct the stenographer on ensuring that your tender (and the proposed answers) are accurately taken down. Provide a copy of your questions, if possible, so the record remains precise.

  4. Written “Offer of Proof”

    • If the hearing is extended or the presiding judge requests it, be prepared to submit a short, written “Offer of Proof” that restates the purpose of the evidence, its relevance, materiality, and the prejudicial effect of its exclusion.

  5. Maintain a Civil Demeanor

    • Even if you believe the exclusion is erroneous, remain respectful and professional. The manner of objecting or tendering can affect how the court perceives your advocacy and might influence future rulings.

VIII. SPECIAL CONSIDERATIONS UNDER RECENT RULES

  1. 2019 Amendments to the Rules of Civil Procedure

    • While the Rules on Evidence were also amended (the 2019 Amendments to the Rules on Evidence), the general principle and methodology for tender of excluded evidence remained consistent with prior practice. The amendments clarified certain aspects of marking evidence and timeframes for formal offers, but the concept of preserving excluded evidence for appellate review remains the same.

  2. Electronic Evidence

    • In the case of electronic documents or electronically stored information, you must likewise ensure they are offered following the applicable rules (e.g., the Rules on Electronic Evidence). If excluded, a summary or printout should be appended to the record in your tender.

  3. Relevance for Criminal Cases

    • Although generally discussed in the context of civil proceedings, the mechanism of tender of excluded evidence applies analogously to criminal trials as well. Both the defense and prosecution must keep the record complete if they intend to challenge the exclusion of evidence on appeal.

IX. CONCLUSION

Tender of Excluded Evidence is an indispensable procedural safeguard under Philippine remedial law. It serves as the mechanism by which counsel preserves for the appellate court’s scrutiny any piece of evidence that has been disallowed by the trial court. Without a proper tender or offer of proof, an appellate challenge to the exclusion of evidence generally fails, as the excluded item or testimony remains unverified in the record.

Given its importance, every litigator should master the timing, form, and substance of a tender of excluded evidence. Properly implementing this procedure will ensure that meritorious evidence—initially set aside by the trial court—can be reconsidered at the appellate level if an appeal becomes necessary.

Key Takeaways:

  1. Always make a prompt tender immediately upon exclusion.
  2. Clearly state or summarize what the evidence is and the purpose for which it was offered.
  3. Attach or mark documentary/physical evidence, and dictate the proposed testimony into the record if it is oral.
  4. Failure to make a tender generally waives any objection to the exclusion.
  5. Maintain clarity, precision, and respect when making your tender—both for the trial court’s understanding and for a clear appellate record.

This procedure, though seemingly technical, is one of the bedrocks of ensuring fairness and completeness in judicial proceedings, safeguarding a litigant’s right to a thorough appellate review of evidentiary rulings.

Disclaimer: This content is not legal advice and may involve AI assistance. Information may be inaccurate.

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