ALL THERE IS TO KNOW ON “WHEN TO MAKE AN OFFER” UNDER RULE 132 OF THE PHILIPPINE RULES OF COURT
(Focusing on the Rules on Evidence, particularly on Offer and Objection.)

1. Overview: The Concept of Formal Offer of Evidence

Under Philippine procedural law, no evidence is considered by the court unless it has been formally offered. This fundamental principle is embodied in what used to be Section 34 of Rule 132 (now Section 38 under the 2019 Revised Rules on Evidence). The rule ensures that the court takes cognizance only of those pieces of evidence specifically presented for the court’s consideration, thereby safeguarding fair play and due process.

Purpose of the offer: When a party offers evidence, it must clearly state the purpose(s) for which such evidence is being presented (e.g., to prove a fact in issue, to impeach a witness, etc.).
Consequences of failing to offer evidence: Evidence not formally offered—no matter how compelling or relevant—will not be considered by the court in deciding the case.

2. Legal Basis: When to Make an Offer

A. Old Provision (Pre-2019) – Sections 34 and 35 of Rule 132

Section 34 (Offer of Evidence):

“The court shall consider no evidence which has not been formally offered. The purpose for which the evidence is offered must be specified.”
Section 35 (When to Make Offer):

“As regards the testimony of a witness, the offer must be made at the time the witness is called to testify.
Documentary and object evidence shall be offered after the presentation of a party’s testimonial evidence. Such offer shall be done orally unless allowed by the court to be done in writing.”

Under this older formulation, testimonial evidence is deemed offered the moment the proponent calls the witness to the stand and states on record the purpose of the testimony (for example, whether the witness is testifying on personal knowledge of an event, to identify a document, or to provide expert opinion, etc.). Meanwhile, documentary and object evidence must be formally offered only after all the witnesses for that party have completed their testimonies.

B. 2019 Revised Rules on Evidence – Sections 38 and 39 of Rule 132

Effective May 1, 2020, the Supreme Court promulgated amendments to the Rules on Evidence. While the core principle remains the same, the section numbers changed:

Section 38 (Offer of Evidence):

“The court shall consider no evidence which has not been formally offered. The purpose for which the evidence is offered must be specified.”
Section 39 (When to Make an Offer):

“The offer of evidence, documentary or object, shall be made after the presentation of a party’s testimonial evidence. However, the court may, in its discretion, allow the offer to be made at an earlier stage.”

Under the amended rules, the text focuses on documentary and object evidence being formally offered after the party rests its testimonial evidence. The provision that testimonial evidence is “offered at the time the witness is called to testify” is not explicitly recited in the new text, but in practice and principle, it remains effectively the same: one states on the record the purpose of calling the witness when that witness is presented. The shift in wording simply streamlines the process without abandoning the necessity to specify the testimony’s purpose.

3. Detailed Timing Rules

A. Testimonial Evidence

At the moment the witness is presented:
- Traditionally (under the older Section 35), you offer a witness’s testimony when you call the witness to the stand. You typically state:
  - The witness’s name;
  - The subject matter or scope of the testimony (e.g., “to testify on personal knowledge of the incident on [date]” or “to testify on the authenticity of Exhibit A”);
  - Whether the witness is an expert, hostile, etc., if applicable.
Rationale:
- This enables the opposing party (and the court) to know why the witness is testifying and to frame objections accordingly (e.g., objecting if the testimony is irrelevant or if it violates the rules on evidence).
Continued vitality under the 2019 Rules:
- Even though Section 39 of the 2019 Rules is silent about “testimonial evidence,” courts continue to observe that a party must indicate (on the record) why the witness is being presented, thereby effectively “offering” the witness’s testimony for a specific purpose.

B. Documentary and Object Evidence

After completion of testimonial presentation:
- Under both the old and new rules, the standard requirement is that all documentary and object evidence must be offered after the proponent has finished presenting its testimonial evidence.
- This typically happens right after the proponent has rested its case (i.e., when the last witness has been heard).
Why after testimonial evidence?
- Often, the witness’s testimony is needed to properly lay the foundation for the admission of documents or objects (e.g., to authenticate a document, to prove chain of custody, or to identify the nature/condition of an object).
- Once the foundation is laid, the proponent then gathers all the marked exhibits (documentary or object) and makes a formal offer, stating precisely:
  - The exhibit number or letter;
  - A brief description of the exhibit;
  - Its purpose or the fact it intends to prove.
Oral vs. Written Offer:
- As a rule, the offer is done orally in open court.
- However, the trial court may allow a written formal offer (common in more complex cases or when there are voluminous documents). If so, the party files a “Formal Offer of Exhibits” containing a list of exhibits and their respective purposes.
Court’s discretion to allow an earlier offer:
- The 2019 version explicitly states that the court may allow an earlier offer of evidence.
- This can happen, for example, when dealing with a single critical document that the court and counsel wish to address upfront, or when practicality demands immediate identification and admission of certain exhibits.

4. Objections and Rulings on the Offer

A. Immediate Objection to Testimonial Offer

Under the old and continuing practice, if a party calls a witness and states the purpose, the opposing counsel may object immediately if the testimony is irrelevant, incompetent, or otherwise objectionable.

B. Objection to Documentary and Object Evidence after Formal Offer

Timing:
- The adverse party objects to each documentary or object exhibit right after the proponent makes the formal offer in open court (or within the period granted by the court for a written comment/opposition if the offer is in writing).
- The grounds for objection must be specifically stated (e.g., authenticity not proven, hearsay, irrelevance, best evidence rule violation, etc.).
Court Ruling:
- The judge then admits or rejects each piece of evidence, or may reserve resolution of the objection if more time is needed.
- If the court reserves, the resolution typically is included in a subsequent written order.

C. Effect of Failure to Timely Object

If the opposing counsel fails to object at the time the offer is made, the general rule is that the objection is waived (unless it concerns a matter of substantial public policy like incompetent or illegal evidence, but that is exceptional).

5. Strategic Considerations

Laying Proper Foundation:
- Before you can successfully offer a document or object, you must ensure you have presented witnesses who can authenticate or identify it, and who can testify on its relevance (e.g., chain of custody in drug cases, authenticity of signatures in civil actions, etc.).
Ensuring Timeliness:
- Failure to offer evidence at the proper time can result in exclusion of that evidence. Courts are strict in implementing the rule that they will not consider evidence that has not been formally offered.
Avoiding Premature Formal Offer:
- Even though the new rules allow the court, in its discretion, to admit an earlier offer, counsel must be prudent. If a foundation is not laid before the offer, the court may sustain an objection for lack of proper authentication or foundation.
Documentary/ Object Marking vs. Formal Offer:
- Marking an exhibit during pre-trial or during a witness’s testimony is not equivalent to a formal offer. Marking merely identifies the evidence for reference. The final step to make it part of the record for consideration is the formal offer, stating its purpose.

6. Key Jurisprudence

While numerous Supreme Court decisions affirm the basic rule that no evidence is considered unless formally offered, a few noteworthy points from case law are:

Heirs of Pedro Pasag vs. Parocha (a commonly cited authority): Reiterates that marking documents as exhibits and using them during trial does not constitute a formal offer.
People v. Napud: Emphasizes that the court must exclude evidence not formally offered, even if no objection was made, because the rule is mandatory.
Reman Recio v. Heirs of Spouses Altamirano: Explains the rationale behind requiring a formal offer—to afford both the court and the opposing party clarity as to the purpose of each piece of evidence, and to enable them to pass upon its admissibility or weigh it properly.

7. Practical Workflow in a Philippine Trial

Marking during Pre-Trial:
- Parties mark documents in the presence of the judge (or during preliminary conferences) to streamline trial.
Presentation of Witnesses (Testimonial Offer):
- Each witness is called, identified, and qualified. Counsel states the purpose of the testimony (offer of testimonial evidence).
Cross-Examination and Re-Direct:
- The opposing party exercises cross-examination; clarifications may follow.
Completion of Testimonial Evidence:
- Once the proponent is done presenting all witnesses, the court typically orders the proponent to formally offer documentary and object evidence.
Formal Offer of Documentary and Object Evidence:
- Counsel recites or files a list enumerating each documentary or object exhibit.
- Counsel states the exhibit number/letter and the specific purpose(s).
Opposition/Objection:
- The opposing party states objections per exhibit (e.g., “Exhibit A is hearsay, not authenticated”).
Court Ruling:
- The judge rules on the admissibility of each exhibit, admitting or rejecting it.
- If admitted, that piece of evidence is considered part of the case record.

8. Common Pitfalls to Avoid

Failure to Formally Offer:
- Some lawyers forget to do a formal offer of documentary evidence, especially if they have used the documents extensively during cross or direct examination. If not formally offered, the court cannot consider those documents.
Inadequate Foundation:
- Not presenting a witness to authenticate or identify the document or object can lead to rejection upon formal offer.
Late Presentation/ Offer:
- Attempting to offer evidence after the court has declared the case submitted for decision or after resting one’s case can lead to the evidence being denied admission.
Cumulative or Redundant Evidence:
- While typically not a bar to offering evidence, the court may exclude repetitive or cumulative evidence if it does not aid in clarifying the issues.

9. Summary of Key Points

Rule: No evidence is considered by the court unless formally offered.
Testimonial Evidence: Offered at the time the witness takes the stand (stating the purpose or scope).
Documentary and Object Evidence: Offered after all the presenting party’s witnesses have testified (unless the court permits an earlier offer).
Objection: Must be made at the time of offer; otherwise, it may be deemed waived (subject to some exceptions).
Foundation: Must be laid before offering evidence; authentication and relevance must be established through testimonial evidence.
Court’s Ruling: The court admits or rejects offered evidence; only admitted evidence is weighed in deciding the case.

10. Conclusion

“When to Make an Offer” is a crucial aspect of trial practice in Philippine courts. Proper timing ensures that each piece of evidence—testimonial, documentary, or object—is clearly identified, its purpose is articulated, and any foundational requirements (e.g., authentication) are satisfied. Counsel must be vigilant in offering evidence immediately for testimonial evidence (when calling the witness) and after completion of the party’s witnesses for documentary or object evidence. Failure to do so risks the exclusion of potentially crucial evidence.

Ultimately, the guiding principle remains:

The court shall consider no evidence which has not been formally offered.

Observing this rule—and the specific timing mandated—is indispensable for effective advocacy and the orderly administration of justice in Philippine courts.