Evidence Digested Cases (2)

THE REVISED RULES

ON

EVIDENCE:

Codal Provisions, Special Laws & Jurisprudence

Class of 3-C 2003-2004 Atty. Francis Edralin Lim Ateneo De Manila School of Law

— Volume 1 —

Project Heads Glenn Q. Albano Ma. Lourdes O. Dino Frances Joanne D. Miranda Ma. Cristina P. Salvatierra Jose C. Salvosa Project Members & Contributors Frank John S. Abdon Madeleine G. Avanzado Giovanni Bautista Jazel Anne G. Calvo Arnaldo M. Cariño Elon Cris C. Culangen Oliver S. Faustino Jose Miguel A. Fernandez Abigail Joy D. Gamboa Serene A. Go Raymond Joseph R. Ibon Jonas S. Khaw Katherine L. Larios Jaydee Justine B. Legaspi Antonio Paolo S. Lim Romeo D. Lumagui, Jr. Ryan D. Mancera Gary Jay R. Maramag

Marvin V. Masangkay Clarence Rommel C. Nanquil Emerson U. Palad Giancarlo M. Puyo Rodolfo V. Reyno III Aaron Roi B. Riturban Anne Perpetual S. Rivera Jose Marmoi F. Salonga Trina B. San Diego Anna Lyne P. San Juan Beverly L. Santiago Jeovert Lesmes S. Solanoy Christian H. Sorita Marie Angeli P. Uy Fides C. Victorio

Evidence Project Volumes Volume 1:

I. Admissibility of Evidence II. What Need Not Be Proved III. Real Demonstrative Evidence IV. Best Evidence Rule

Volume 2:

V. Parole Evidence Rule VI. Interpretation of Documents VII. Qualifications of Witnesses VIII. Privileged Communications

Volume 3:

IX. Admissions & Confessions X. Conduct & Character

Volume 4:

XI. Hearsay Rule XII. Opinion Rule

Volume 5:

XIII. Burden of Proof & Presumptions XIV. Presentation of Evidence (Part. A., B. , C. 1. to 7.)

Volume 6:

XIV. Presentation of Evidence (Part C. 8. to 10., D., E.) XV. Weight & Sufficiency of Evidence

Volume 1: Table of Contents

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I.

Admissibility of Evidence A. Rule 128, Sections 1-4. 1. Reyes vs. CA 2. People vs. Turco B. Relevance 1. Rule 128, Sections 3 & 4. 2. Bautista vs. Aperece 3. Lopez vs. Heesen 4. State vs. Ball C. Competence 1. Rule 128, Section 3. 2. Exclusionary Rules Under 1987 Constitution (a) Art. III, Sections 2 & 3. (b) Art. III, Section 12. (c) Art. III. Section 17. 3. Statutory Rules of Exclusion (a) Tax Reform Act of 1997, Section 201 (b) RA 1405, Law on Secrecy of Bank Deposits (RA 7653, §135) (c) RA 4200, Anti-Wiretapping Act (i) Ganaan vs. IAC (ii) Salcedo-Ortanez vs. CA (iii) Ramirez vs. CA

II.

What Need Not Be Proved A. Rule 129, Sections 1-4. Rule 10, Section 8. B. Cases 1. Judicial Notice (a) City of Manila vs. Garcia (b) Baguio vs. Vda. De Jalagat (c) Prieto vs. Arroyo (d) Yao-Kee vs. Sy-Gonzales (e) Tabuena vs. CA (f) People vs. Godoy (g) BPI-Savings vs. CTA 2. Judicial Admissions (a) Lucida vs. Calupitan 3C 2003-2004 Evidence Project Vol. 1 - 2 -

(b) Torres vs. CA (c) Bitong vs. CA III.

Real and Demonstrative Evidence A. Rule 130, Sections 1 & 2. B. Cases 1. 2. 3. 4.

IV.

People vs. Bardaje Sison vs. People Adamczuk vs. Holloway State vs. Tatum

Best Evidence Rule A. Rule 130, Sections 2-8 Rule 132, Sections 25 & 27. Electronic Commerce Act (RA 8792), Sections 5, 6-15. Rules on Electronic Evidence, Rule 2, Sections 1, 3, 4. B. Cases 1. Air France vs. Carrascoso 2. Meyers vs. United States 3. People vs. Tan 4. Seiler vs. Lucasfilm 5. People vs. Tandoy 6. US vs. Gregorio 7. Fiscal of Pampanga vs. Reyes 8. Vda. De Corpus vs. Brabangco 9. Compania Maritima vs. Allied Free Workers 10. Villa Rey Transit vs. Ferrer 11. Michael & Co. vs. Enriquez 12. De Vera vs. Aguilar

I.

ADMISSIBILITY OF EVIDENCE A.

RULE 128, SECTION 1-4: RULE 128 3C 2003-2004 Evidence Project Vol. 1 - 3 -

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) SECTION 3. Admissibility of evidence. – Evidence is admissible when it is relevant to the issue and is not excluded by the law or these rules. (3a) SECTION 4. Relevancy; Collateral Matters. – Evidence must have such a relation to the fact in issue as to induce belief in its existence or non-existence. Evidence on collateral matters shall not be allowed, except when it tends in any reasonable degree to establish the probability or improbability of the fact in issue. CASES: Reyes vs. Court of Appeals 216 SCRA 25 (1993) Rule 128, Sec. 1-4 FACTS: Juan Mendoza, the father of defendant Olympio, is the owner of Farm Lots Nos. 46 and 106, devoted to the production of palay. The lots are tenanted and cultivated by Julian de la Cruz, the husband of plaintiff Eufrocina de la Cruz. In her complaint, Eufrocina alleged that upon the death of her husband, she succeeded him as bona fide tenant. However, Olympio in conspiracy with the other defendants prevented her daughter Violeta and her workers from entering and working on the farm lots. Defendants likewise refused to vacate and surrender the lots, which prompted Eufrocina to file a case for the recover of possession and damages with a writ of preliminary mandatory injunction in the meantime. The petitioners in this case, the defendants Reyes, Parayao, Aguinaldo and Mananghaya, are duly elected and appointed barangay officials of the locality, who denied their interference in the tenancy relationship existing between Olympio and Eufrocina. Olympio, for his part, raised abandonment, sublease and mortgage of the farm lots without his consent, and non-payment of rentals as his defenses. The Court of Appeals (CA) affirmed the agrarian court’s decision with modification, which ordered the defendants to restore possession of the farm lots to plaintiff Eufrocina. The CA likewise ruled that the petitioners are solidarily liable to pay to Eufrocina the value of cavans of palay until they have vacated the area.

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On appeal, the petitioners questioned the favorable consideration given to the affidavits of Eufrocina and Efren Tecson, since the affiants were not presented and subjected to crossexamination. ISSUE(S): Whether or not the trial court erred when it gave favorable consideration to the affidavits of plaintiff, even if the affiant was not presented and subjected to cross-examination. RULING: The judgment is affirmed. The trial court did not err when it favorable considered the affidavits of Eufrocina and Efren Tecson although the affiants were not presented and subjected to cross-examination. Section 16 of P.D. No. 946 provides that the “Rules of Court shall not be applicable in agrarian cases even in a suppletory character.” The same provision states that “In the hearing, investigation and determination of any question or controversy, affidavits and counter-affidavits may be allowed and are admissible in evidence,” Moreover, in agrarian cases, the quantum of evidence required is no more than substantial evidence. Thus, this case is an application of the rule with regard the scope of the Rules on Evidence which states that “The rules of evidence shall be the same in all courts and in all trials and hearings except as otherwise provided by law (ex. Section 16 of P.D. No. 946) or these rules.” By: Frances Joanne D. Miranda People vs. Turco 337 SCRA 714 (2000) Rule 128, Sec 1-4 FACTS: Rodegelio Turco, Jr. (a.k.a. “Totong”) was charged with the crime of rape. The prosecution alleged that the victim, Escelea Tabada (12 yrs and 6 months old at the time of the incident) and accused Turco were neighbors. On the night of the incident, upon reaching her home, Escelea heard a call from outside. She recognized the voice to be Turco’s since they have been neighbors for 4 years and are second cousins. When she opened the door, the accused with the use of a towel, covered the victim’s face. Then the accused bid the victim to walk. When they reached a grassy part, near the pig pen which was about 12 meters away from the victim’s house, the accused laid the victim on the grass, went on top of her an took off her short pants and panty. The victim tried to resist by moving her body but to no avail. The accused succeeded in pursuing his evil design by forcibly inserting his penis inside the victim’s private parts. Upon reaching home, the victim discovered that her short pants and panty were filled with blood. For almost ten days, she kept to herself the harrowing experience, until she had the courage to tell her brother-in-law, who in turn told the victim’s father about the rape of his daughter. Thereafter, they did not waste time and immediately asked the victim to see a doctor for medical examination. After the issuance of the medical certificate, they went to the Isabela Municipal Station and filed a compliant against the accused charging him with rape.

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The trial court convicted the accused, stating that the defense of “sweetheart theory” was a mere concoction of the accused in order to exculpate him from criminal liability. Appealing his conviction, the accused-appellant argues that the trial court erred because no actual proof was presented that the rape of the complainant actually happened considering that although a medical certificate was presented, the medico-legal officer who prepared the same was not presented in court to explain the same. ISSUE(S): Whether or not the trial court erred in admitting the medical certificate in evidence, although the medico-legal officer who prepared the same was not presented in court to testify on it. RULING: Conviction affirmed. We place emphasis on the distinction between admissibility of evidence and the probative value thereof. Evidence is admissible when it is relevant to the issue and is not excluded by the law or these rules (Section 3, Rule 128) or is competent. Since admissibility of evidence is determined by its relevance and competence, admissibility is therefore, an affair of logic and law. On the other hand, the weight to be given to such evidence, once admitted, depends on judicial evaluation within the guidelines provided in rule 133 and the jurisprudence laid down by the Court. Thus, while evidence may be admissible, it may be entitled to little or no weight at all. Conversely, evidence which may have evidentiary weight may be inadmissible because a special rule forbids its reception. However, although the medical certificate is an exception to the hearsay rule, hence admissible as evidence, it has very little probative value due to the absence of the examining physician. Nevertheless, it cannot be said that the prosecution relied solely on the medical certificate. In fact, reliance was made on the testimony of the victim herself, which standing alone even without the medical examination, is sufficient evidence. The absence of medical findings by a medico-legal officer does not disprove the occurrence of rape. It is enough that the evidence on hand convinces the court that conviction is proper. In the instant case, the victim’s testimony alone is credible and sufficient to convict. By: Frances Joanne D. Miranda B.

RELEVANCE: 1. SECTIONS 3 AND 4, RULE 128 SECTION 3. Admissibility of evidence. – Evidence is admissible when it is relevant to the issue and is not excluded by the law or these rules. (3a) SECTION 4. Relevancy; Collateral Matters. – Evidence must have such a relation to the fact in issue as to induce belief in its existence or nJon-existence. Evidence on collateral matters shall not be allowed,

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except when it tends in any reasonable degree to establish the probability or improbability of the fact in issue. CASES: Bautista vs. Aparece 51 O.G. 805 (1995) Relevance FACTS: As owner of the lot subject of the case, Nicolas Anasco sold the same to Valentin Justiniani. In the same year, Valentin sold this property to Claudio Justiniani, In October 12, 1935, Claudio Justiniani executed a public instrument whereby he sold the same property for P100 to Apolonio Aparece in whose name it was assessed since 1935. While Aparece was in possession, Hermogenes Bautista illegally entered a part of the land and took possession thereof. Thus, Aparece file a complaint with the guerilla forces then operating in the province of Bohol. When the case was called for hearing, and after inspection was made by a guerilla officer, Bautista executed a public instrument wherein he promised to return the land to Aparece in good will, and recognized Aparece’s lawful ownership over the land. Thus, possession of the land was restored to Aparece. However, claiming that the property belongs to him, and alleging that with the aid of armed men and pretending to be owner, usurped the land, Bautista filed a complaint in the Court of First Instance (CFI) of Bohol. The CFI rendered judgment declaring Aparece as owner of the land. On appeal, Bautista raised as defense the error of the trial court in admitting the public instrument which he executed as evidence. He argued that the document was executed under duress, violence, and intimidation, and that the guerilla officer before whom it was executed, had no jurisdiction over the matter. ISSUE(S): Whether or not the trial court erred in admitting as evidence, a public document executed before an officer who had no jurisdiction over the matter. RULING: This argument is beside the point. The test for the admissibility or inadmissibility of a certain document is whether or not it is relevant, material or competent. The public document is not only relevant, but is also material and competent to the issue of ownership between the parties litigants. Relevant evidence is one that has any value in reason as tending to prove any matter probable in ac action. And evidence is said to be material when it is directed to prove a fact in issue as determined by the rules of substantive law and pleadings, while competent evidence is one that s not excluded by law in a particular case. With these criteria in mind, we hold that the mere fact that the public document was executed before a guerilla officer does not make the same as irrelevant, immaterial or incompetent to the main issue raised in the pleadings. The public document, considered together with the other evidence, documentary and oral, satisfies the Court that the portions of land in question really belong to defendant Aparece. By: Frances Joanne D. Miranda 3C 2003-2004 Evidence Project Vol. 1 - 7 -

Lopez vs. Heesen 365 P.2d 448 (1961) Relevance FACTS: Appellee Heesen, an air Force officer, purchased a J.C. Higgins Model 51 30.06 rifle from the store of appellee Sears. The rifle has a bolt action known as a “Mausser type action” with a “Class 1” safety mechanism. At the time of the purchase, Heesen was given an instruction pamphlet which he read, explaining the composition of the rifle and gave operating instructions, including the method to be pursued to make the gun “safe”. Immediately after the purchase, Heesen left for a deer hunting trip in an area known as Ute Park. He placed a live cartridge in the chamber and placed the gun on safety position. He traveled a good deal during the hours before the shooting and on one of two occasions, he discovered the gun off safety position. This occurred when he had come down a long hill covered with rocks and boulders. Heesen was not aware that the rifle moved from “safe to fire’ position at least twice before the shooting. Ten minutes before the accident began, he left the knoll and he was carrying the gun on his shoulder. He later heard a rustle and saw a deer go between some trees. When he followed the deer, his left foot went down hard on the ground on one side of a log and his right foot slipped on the grass. This brought the rifle down and the rifle discharged, the bullet hitting appellant Lopez, who was nearby. Lopez brought suit against Heesen for allegedly unlawfully assaulting him, thereby inflicting dangerous and painful wounds. He also included as party-defendant, the designer, manufacturer and seller of the rifle, Sears, for allegedly negligently designing and manufacturing the rifle bought by Heesen. Defendants presented expert testimony on the general reputation of other firearms companies who use the same modified leaf safety device as the Higgins Model 51. Lopez objected to this evidence on the ground that it was wholly immaterial and irrelevant to any issue in the case. He likewise objected on the introduction of testimony on the “poundage pressure” required to move the safety levers from safe to fire position on the ground of irrelevance and immateriality. Lastly, he objected to the introduction of opinion evidence regarding the design of the safety mechanism, on the ground that it was a subject which is within the province of the jury to determine. (1) (2) (3)

(1)

ISSUE(S): Whether or not expert testimony on the general reputation of other firearms companies using the same safety device is material and relevant. Whether or not testimony on the “poundage pressure” required is relevant and material. Whether or not the design of the safety mechanism was a proper subject of expert testimony. RULING: The expert testimony is admissible. The allegations on the ultimate facts in issue involve whether the Higgins Model 51 rifle was in a dangerous and defective condition due to its negligent manufacture, in that the safety mechanism moved re4adily from “safe” to “fire” 3C 2003-2004 Evidence Project Vol. 1 - 8 -

position. This is an issue, the proper understanding of which, requires knowledge or experience and cannot be determined independently merely from deductions made and inferences drawn on the basis of ordinary knowledge. Moreover, the conduct of others is proper evidence for a jury to consider, in determining whether the tendency of the thing is dangerous, defective, or the reverse. Considering these principles, the Court held that the testimony as to the reputation of other firearms companies using the same safety device is material and relevant to the issue of whether the safety device on the Higgins Model 51 was unsafe or safe, and that the trial court did not abuse its discretion in admitting this testimony. (2)

The testimony was introduced under Lopez’s contention that the Higgins model was unsafe and thus, the issue arose as to the “poundage pressure’ required to move the safety lever from safe to fire. It was then proper for Sears to show the amount of pressure required to move the safety lever as this was relevant to the issue posed.

(3)

Expert testimony is admissible because the expert testimony was upon the ultimate issue of whether or not the safety device was dangerous and defective. It was the proper subject of expert testimony. It does not usurp the functions of the jury as the latter may still reject these opinions. Said opinion evidence is not binding on the jury. By: Frances Joanne D. Miranda State vs Ball 339 S.w2d 783 (1960) Relevance FACTS: Ball appeals from an order of the trial court, convicting him of robbery. At about 2:30 in the afternoon, two colored men, one of them tall and the other short, entered the Krekeler Jewelry Store. As the taller man looked at jewelry and made his purchase, the shorter man looked in the cases and moved about in the store. Later in the same day, at around 5:30 p.m., as John Krekeler was placing the rings and watches in the safe preparing for the closing of the store, the two men who had been in the store at 2:30, entered the store. They were immediately recognized by Krekeler, especially the taller man’s narrow-brimmed tall hat, brown jacket, gray short and particularly a scar on his face. The shorter man walked behind the counter and as Krekeler tried to intercept him, the man hit Krekeler on the face using a 0.38 long barreled pistol. With the gun on his back, the two men directed Krekeler to go to the watch repair department, then to the restroom, where he was positioned, facing the wall. Thereafter, he could hear jewelry being dumped in a bag, and the “jingle” of the car register. After hearing the door slam, Krekeler call the police. He reported that the two men took $4,455.21 worth of watched and rings, and $140 in cash. Three weeks later, Ball was arrested by Officers Powell and Ballard while walking in the street. Ball shoved Officer Powell over and ran down the avenue. The officers ran after him and he was only pacified when the Officer’s fired a bullet which fell in his back. Ball claims that this evidence of “flight” was not material or relevant, since it was too remote from the date of the robbery (3 weeks later), to indicate a consciousness of guilt. Ball likewise 3C 2003-2004 Evidence Project Vol. 1 - 9 -

objected to the admissibility of the following articles found in his person during the arrest on grounds of immateriality and irrelevance: a brown felt hat, a brownish windbreaker type jacket, trousers, gray shirt and shoes, and $258.02 in currency and two pennies. (1) (2)

(1)

(2)

ISSUES(S) Whether or not the evidence of flight is inadmissible for reason of remoteness to the time of the commission of the crime. Whether or not the articles found in the person of the accused at the time of his arrest are inadmissible for being irrelevant and immaterial. RULING: Unexplained flight and resisting arrest even thirty days after the supposed commission of the crime is a relevant circumstance. The remoteness of the flight goes to the weight of the evidence rather than to its admissibility. In identifying Ball, Krekeler was impressed with and remembered the brown ensemble, particularly the tall brown hat. These items were of course relevant and admissible in evidence and there is no objection to them. However, the money is inadmissible. The proof of the money here was evidently on the theory that Ball did not have or was not likely to have such a sum of money on his person prior to the commission of the offense. However, Krekeler was not able to identify the money or any of the items on Ball’s person as having come from the jewelry store so that in fact, they were not admissible in evidence. There was no proof as to the denomination of the money in the cash register, it was simply a total of $140. Here, nineteen days had elapsed, there was no proof that Ball had suddenly come into possession of the $258.02 and in all these circumstances “the mere possession of a quantity of money is in itself no indication that the possessor was the taker of the money charged as taken, because in general all money of the same denomination and material is alike, and the hypothesis that the money found is the same as the money taken is too forced and extraordinary to be receivable.” By: Frances Joanne D. Miranda C.

COMPETENCE: 1.

SECTION 3, RULE 128

SECTION 3. Admissibility of evidence. – Evidence is admissible when it is relevant to the issue and is not excluded by the law or these rules. (3a) 2.

EXCLUSIONARY RULES UNDER THE 1987 CONSTITUTION (a) SECTIONS 2 AND 3, ARTICLE III 3C 2003-2004 Evidence Project Vol. 1 - 10 -

SEC. 2, Article III The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. SEC. 3. Article III (1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law. (2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding. (b) SECTION 12, ARTICLE III Section 12, Article III (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 and rehabilitation of victims of torture or similar practices, and their families. (c) SECTION 17, ARTICLE III SEC. 17. No person shall be compelled to be a witness against himself.

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3.

STATUTORY RULES OF EXCLUSION 1.

SECTION 201, TAX REFORM ACT OF 1997

SEC. 201. Effect of Failure to Stamp Taxable Document. - An instrument, document or paper which is required by law to be stamped and which has been signed, issued, accepted or transferred without being duly stamped, shall not be recorded, nor shall it or any copy thereof or any record of transfer of the same be admitted or used in evidence in any court until the requisite stamp or stamps are affixed thereto and cancelled. (b)

RA 1405, LAW ON SECRECY OF BANK DEPOSITS LAW ON SECRECY OF BANK DEPOSITS Republic Act No.1405, as amended

AN ACT PROHIBITING DISCLOSURE OF OR INQUIRY INTO, DEPOSITS WITH ANY BANKING INSTITUTION AND PROVIDING PENALTY THEREFOR Section 1. It is hereby declared to be the policy of the Government to give encouragement to the people to deposit their money in banking institutions and to discourage private hoarding so that the same may be properly utilized by banks in authorized loans to assist in the economic development of the country. Sec 2.1 All deposits of whatever nature with banks or banking institutions in the Philippines including investments in bonds issued by the Government of the Philippines, its political subdivisions and its instrumentalities, are hereby considered as of an absolutely confidential nature and may not be examined, inquired or looked into by any person, government official, bureau or office, except when the examination is made in the course of a special or general examination of a bank and is specifically authorized by the Monetary Board after being satisfied that there is reasonable ground to believe that a bank fraud or serious irregularity has been or is being committed and that it is necessary to look into the deposit to establish such fraud or irregularity, or when the examination is made by an independent auditor hired by the bank to conduct its regular audit provided that the examination is for audit purposes only and the results thereof shall be for the exclusive use of the bank, or upon written permission of the depositor, or in cases of impeachment, or upon order of a competent court in cases of bribery or dereliction of duty of public officials, or in cases where the money deposited or invested is the subject matter of the litigation. (As amended by PD No.1792, January 16, 1981) Sec 3. It shall be unlawful for any official or employee of a bank to disclose to any person other than those mentioned in Section Two hereof, or for an independent auditor hired by a bank to conduct its regular audit to disclose to any 3C 2003-2004 Evidence Project Vol. 1 - 12 -

person other than a bank director, official or employee authorized by the bank, any information concerning said deposits. (As amended by PD No.1792) Sec 4. All acts or parts of Acts, Special Charters, Executive Orders, Rules and Regulations which are inconsistent with the provisions of this Act are hereby repealed. Sec 5. Any violation of this law will subject the offender upon conviction, to an imprisonment of not more than five years or a fine of not more than twenty thousand pesos or both, in the discretion of the court. Sec 6. This Act shall take effect upon its approval. APPROVED, September 9, 1955.

__________ 1

This Section and Section 3 were both amended by Pres. Decree No.1792, issued January 16, 1981, PD 1792 was expressly repealed by Sec. 135 of Rep. Act No.7653, approved June 14, 1993. The original Sections 2 and 3 of Rep. Act No.1405 are hereby reproduced for reference, as follows: "Sec. 2 All deposits of whatever nature with banks or banking institutions in the Philippines including investments in bonds issued by the Government of the Philippines, its political subdivisions and its instrumentalities, are hereby considered as of an absolutely confidential nature and may not be examined, inquired or looked into by any person, government official, bureau or office, except upon written per- mission of the depositor, or in cases of impeachment, or upon order of a competent court in cases of bribery or dereliction of duty of public officials. or in cases where the money deposited or invested is the subject matter of the litigation," "Sec. 3. It shall be unlawful for any official or employee of a banking institution to disclose to any person other than those mentioned in Section two hereof any information concerning said deposits."

(c)

R.A. NO. 4200 WIRETAPPING ACT REPUBLIC ACT NO. 4200

AN ACT TO PROHIBIT AND PENALIZE WIRE TAPPING AND OTHER RELATED VIOLATIONS OF THE PRIVACY OF COMMUNICATION, AND FOR OTHER PURPOSES SECTION 1. It shall be unlawful for any person, not being authorized by all the parties to any private communication or spoken word, to tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a dictaphone or dictagraph or detectaphone or walkie-talkie or tape recorder, or however otherwise described.

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It shall also be unlawful for any person, be he a participant or not in the act or acts penalized in the next preceding sentence, to knowingly possess any tape record, wire record, disc record, or any other such record, or copies thereof, of any communication or spoken word secured either before or after the effective date of this Act in the manner prohibited by this law; or to replay the same for any other person or persons; or to communicate the contents thereof, either verbally or in writing, or to furnish transcriptions thereof, whether complete or partial, to any other person: Provided, That the use of such record or any copies thereof as evidence in any civil, criminal investigation or trial of offenses mentioned in Section 3 hereof, shall not be covered by this prohibition. SECTION 2. Any person who willfully or knowingly does or who shall aid, permit, or cause to be done any of the acts declared to be unlawful in the preceding section or who violates the provisions of the following section or of any order issued thereunder, or aids, permits, or causes such violation shall, upon conviction thereof, be punished by imprisonment for not less than six months or more than six years and with the accessory penalty of perpetual absolute disqualification from public office if the offender be a public official at the time of the commission of the offense, and, if the offender is an alien he shall be subject to deportation proceedings. SECTION 3. Nothing contained in this Act, however, shall render it unlawful or punishable for any peace officer, who is authorized by a written order of the Court, to execute any of the acts declared to be unlawful in the two preceding sections in cases involving the crimes of treason, espionage, provoking war and disloyalty in case of war, piracy, mutiny in the high seas, rebellion, conspiracy and proposal to commit rebellion, inciting to rebellion, sedition, conspiracy to commit sedition, inciting to sedition, kidnapping as defined by the Revised Penal Code, and violations of Commonwealth Act No. 616, punishing espionage and other offenses against national security: Provided, That such written order shall only be issued or granted upon written application and the examination under oath or affirmation of the applicant and the witnesses he may produce and a showing: (1) that there are reasonable grounds to believe that any of the crimes enumerated hereinabove has been committed or is being committed or is about to be committed: Provided, however, That in cases involving the offenses of rebellion, conspiracy and proposal to commit rebellion, inciting to rebellion, sedition, conspiracy to commit sedition, and inciting to sedition, such authority shall be granted only upon prior proof that a rebellion or acts of sedition, as the case may be, have actually been or are being committed; (2) that there are reasonable grounds to believe that evidence will be obtained essential to the conviction of any person for, or to the solution of, or to the prevention of, any such crimes; and (3) that there are no other means readily available for obtaining such evidence. The order granted or issued shall specify: (1) the identity of the person or persons whose communications, conversations, discussions, or spoken words are to be overheard, intercepted, or recorded and, in the case of telegraphic or telephonic communications, the telegraph line or the telephone number involved and its location; (2) the identity of the peace officer authorized to overhear, 3C 2003-2004 Evidence Project Vol. 1 - 14 -

intercept, or record the communications, conversations, discussions, or spoken words; (3) the offense or offenses committed or sought to be prevented; and (4) the period of the authorization. The authorization shall be effective for the period specified in the order which shall not exceed sixty (60) days from the date of issuance of the order, unless extended or renewed by the court upon being satisfied that such extension or renewal is in the public interest. All recordings made under court authorization shall, within forty-eight hours after the expiration of the period fixed in the order, be deposited with the court in a sealed envelope or sealed package, and shall be accompanied by an affidavit of the peace officer granted such authority stating the number of recordings made, the dates and times covered by each recording, the number of tapes, discs, or records included in the deposit, and certifying that no duplicates or copies of the whole or any part thereof have been made, or if made, that all such duplicates or copies are included in the envelope or package deposited with the court. The envelope or package so deposited shall not be opened, or the recordings replayed, or used in evidence, or their contents revealed, except upon order of the court, which shall not be granted except upon motion, with due notice and opportunity to be heard to the person or persons whose conversation or communications have been recorded. The court referred to in this section shall be understood to mean the Court of First Instance within whose territorial jurisdiction the acts for which authority is applied for are to be executed. SECTION 4. Any communication or spoken word, or the existence, contents, substance, purport, effect, or meaning of the same or any part thereof, or any information therein contained obtained or secured by any person in violation of the preceding sections of this Act shall not be admissible in evidence in any judicial, quasi-judicial, legislative or administrative hearing or investigation. SECTION 5. All laws inconsistent with the provisions of this Act are hereby repealed or accordingly amended. SECTION 6. This Act shall take effect upon its approval.

CASES: Gaanan vs. Intermediate Appellate Court 145 SCRA 112 (1986) Competence (Anti-Wiretapping Act) FACTS: Complainant Atty. Pintor and his client Montebon, were in the living room of complainant’s residence, discussing the terms from the withdrawal of the complaint for direct assault which they filed against Laconico. After they decided on the conditions, Atty. Pintor made a phone call to Laconico. 3C 2003-2004 Evidence Project Vol. 1 - 15 -

That same morning, Laconico telephoned Atty. Gaanan to come to his office and advise him on the settlement of the direct assault case. When Atty. Pintor called, Laconico requested Atty. Gaanan to secretly listen to the telephone conversation through a telephone extension so as to hear personally the proposed conditions for the settlement. Twenty minutes later, Atty. Pinto called up again to ask Laconico if he was agreeable to the conditions. Laconico agreed. An amount of P5,000 as settlement money was agreed upon. He was instructed to give the money to give the money to Atty. Pintor’s wife at the office of the Department of Public Highways. However, Laconico insisted that Atty. Pintor himself should receive the money. However, when Atty. Pintor received the money, he was arrested by agents of the Philippine Constabulary. On the following day, Atty. Gaanan executed an affidavit that he heard complainant Atty. Pintor demand P8,000 for the withdrawal of the case for direct assault. Laconico attached the affidavit to the complaint for robbery/extortion which he filed against Atty. Pintor. Since Atty. Gaanan listened to the telephone conversation without Atty. Pintor’s consent, Atty. Pintor charged Atty. Gaanan and Laconico with violation of the Anti-Wiretapping Act (R.A. No. 4200). Atty. Gaanan and Laconico were found guilty by the trial court. The decision was affirmed by the Intermediate Appellate Court (IAC) stating that the “extension telephone” which was used to overhear the telephone conversation was covered in the term “device” as provided in R.A. No. 4200. ISSUE(S): Whether or not an extension telephone is among the prohibited device in Section 1 of the AntiWiretapping Act, such that its use to overhear a private conversation would constitute unlawful interception of communications between the two parties using a telephone line. RULING: The main issue revolves around the meaning of the phrase “any other device or arrangement.” The law refers to a “tap” of a wire or cable or the use of a “device or arrangement” for the purpose of secretly overhearing, intercepting, or recording the communication. There must be either a physical interruption through a wiretap or the deliberate installation of a device or arrangement in order to overhear, intercept, or record the spoken words. An extension telephone cannot be placed in the same category as a dictaphone, dictagraph or the other device enumerated un Section 1 of R.A. No. 4200 as the use thereof cannot be considered as “tapping” the wire or cable of a telephone line. The telephone extension in this case was not installed for that purpose. It just happened to be there for ordinary office use. The phrase “device or arrangement”, although not exclusive to that enumerated, should be construed to comprehend instruments of the same or similar nature, that is, instruments the use of which would be tantamount to tapping the main line of a telephone. It refers to instruments whose installation or presence cannot be presumed by the party or parties being overheard because, by their very nature, they are not of common usage and their purpose is precisely for tapping, intercepting, or recording a telephone conversation.

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An extension telephone is an instrument which is very common especially now when the extended unit does not have to be connected by wire to the main telephone but can be moved from place to place within a radius of a kilometer or more. An extension telephone is not among such device or arrangements covered by Section 1 of R.A No. 4200. By: Frances Joanne D. Miranda Salcedo-Ortañez vs. Court of Appeals 235 SCRA 111 (1994) Competence (Anti-Wiretapping Act) FACTS: Rafael Ortañez filed a complaint for annulment of marriage with damages against his wife Teresita Salcedo-Ortañez, on grounds of lack of marriage license and/or psychological incapacity of Teresita. Among the exhibits offered by Rafael were three (3) cassette tapes of alleged telephone conversations between Teresita and unidentified persons. These tape recordings were made and obtained when Rafael allowed his friends from the military to wire tap his home telephone. Teresita objected to Rafael’s oral offer of the said tapes. However, the Regional Trail Court (RTC) of Quezon City admitted the tapes into evidence. Teresita filed a petition for certiorari with the Court of Appeals (CA), but the CA upheld the lower court’s order for two reasons: (1) Tape recordings are not inadmissible per se. hey are admissible depending on how they are presented and offered and how the trial judge utilizes them and (2) Certiorari is inappropriate since the order admitting the tape into evidence is interlocutory. The order should be questioned in the appeal from the judgment on the merits and through the special civil action of certiorari. Hence, Teresita filed a petition for review with the Supreme Court (SC). ISSUE(S): (1) Whether or not the recordings of Teresita’s phone conversations, made and obtained through wiretapping are admissible as evidence (not per se inadmissible) (2) Whether or not a petition for certiorari is the appropriate remedy to question an order admitting the tapes into evidence RULING: (1) The tape recordings are inadmissible. Relevant provisions of R.A. 4200 (AntiWiretapping Act) provides that: Section 1: It shall be unlawful for any person, not being authorized by all parties to any private conversation or spoken word, to tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a dictaphone, or dictagraph or detectaphone or walkie-talkie or tape recorder, or however otherwise described x x x

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Section 4. Any communication, or spoken word, or the existence, contents, substance, purport, or meaning of the same or any part thereof, or any information therein contained, obtained, or secured by any person in violation of the preceding section of this Act shall not be admitted in evidence in any judicial, quasi-judicial, legislative, or administrative hearing or investigation. Hence, absent any clear showing that both parties consented to the recording, the inadmissibility of the tapes is mandatory under R.A. No. 4200 (2) Certiorari was the appropriate remedy. Generally, the extraordinary writ of certiorari is not available to challenge interlocutory orders of a trial court. The proper remedy is an ordinary appeal from an adverse judgment, incorporating in the said appeal the grounds fro assailing the interlocutory order. However, where the assailed interlocutory order is patently erroneous and the remedy of appeal would not afford adequate and expeditious relief, the Court may allow certiorari as a mode of redress. By: Aaron Roi B. Riturban Ramirez vs. Court of Appeals 248 SCRA 590 (1995) Competence (Anti-Wiretapping Act) FACTS: Ester Garcia filed a criminal case for violation of R.A. No. 4200 (Anti-Wiretapping Act) against Socorro Ramirez, for secretly taping their confrontation. Socorro filed a Motion to Quash the Information, which the Regional Trial Court (RTC) of Pasay granted, agreeing that the facts charged did not constitute an offense under R.A. No. 4200 since the law refers to the taping of a communication by a person other than a participant to the communication. After which, Ester filed a petition for review with the Court of Appeals (CA), which reversed the ruling of the lower court. Hence, Socorro filed this instant petition where she raised three ISSUES: (2) That R.A. No. 4200 does not apply to the taping of the conversation by one of the parties to the conversation. She contends that R.A. 4200 only refers to unauthorized taping of a conversation of a person other than those involved in the conversation. (3) That the substance or contents of the cnvesation must be alleged in the information; otherwise, the facts charged will not constitute a violation of R.A. No. 4200. (4) That R.A. No. 4200 penalizes the taping of “private communication” not a “private conversation” and that, consequently, her act of secretly taping her conversation with Ester was not illegal under the said Act. RULING: (1) R.A. No. 4200 applies to recordings by one of the parties to the conversation. Section 1 of the Act clearly and unequivocally makes it illegal for any person, not 3C 2003-2004 Evidence Project Vol. 1 - 18 -

authorized by all parties to any private communication to secretly record such communication by means of a tape recorder. The law makes no distinction as to whether the party sought to be penalized by the statute ought to be a party other than or different from those involved in the private communication. The statute’s intent to penalize all persons unauthorized to make such recording is underscored by the use of the qualifier “any”. Consequently, the CA was correct in concluding that “even a person privy to a communication, who records his private conversation with another without knowledge of the latter, will qualify as a violator under R.A. No. 4200.” A perusal of the Senate Congressional Records, moreover, supports such conclusion. (2)

The substance of the conversation need not be alleged in the information. The nature of the communication is immaterial. The mere allegation that an individual made a secret recording of a private communication by means of a tape recorder would suffice to constitute an offense under Section 1 of R.A. No. 4200 As the Solicitor General pointed out, “Nowhere (in the said law) is it required that before one can be regarded as a violator, the nature of the conversation, as well as its communication to a third person should be professed.”

(3)

“Private communication” includes “private conversation”. The word communicate comes from the Latin word communicare, meaning “to share or to impart”. In its ordinary signification, communication connotes an act of sharing or imparting, as in a conversation (“process by which meanings or thoughts are shared between individuals through a common system of symbols”). These broad definitions are likely to include the confrontation between Socorro and Ester. Moreover, any doubts about the legislative body’s meaning of the phrase “private communication” are put to rest by the fact that Senator Tañada in his Explanatory Note to the Bill used “communication” and “conversation” interchangeably.

By: Aaron Roi B. Riturban

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II.

WHAT NEED NOT BE PROVED A.

RULE 129, SECTIONS 1-4; RULE 129 WHAT NEED NOT BE PROVED

SECTION 1. Judicial notice, when mandatory. – A court shall take judicial notice, without the introduction of evidence, of the existence and territorial extent of states, their political history, forms of government and symbols of nationality, the law of nations, the admiralty and maritime courts of the world and their seals, the political constitution and history of the Philippines, the official acts of the legislative, executive and judicial departments of the Philippines, the laws of nature, the measure of time, and the geographical divisions. (1a) SECTION 2. Judicial notice, when discretionary. – A court may take judicial notice of matters which are of public knowledge, or are capable of unquestionable demonstration, or ought to be known to judges because of their judicial functions. (1a) SECTION 3. Judicial notice, when hearing necessary. – During the trial, the court, on its own initiative, or on the request of a party, may announce its intention to take judicial notice of any matter and allow the parties to be heard thereon. After trial, and before judgment or on appeal, the proper court, on its own initiative or on request of a party, may take judicial notice of any matter and allow the parties to be heard thereon if such matter is decisive of a material issue in the case. (n) SECTION 4. Judicial Admissions. – An admission, verbal or written, made by a party in the course of the proceedings in the same case, does not require proof. The admission may be contradicted only by showing that it was made through palpable mistake or that no such admission was made. (2a) RULE 10, SECTION 8 SECTION 8. Effect of amended pleadings. An amended pleading supersedes the pleading that it amends. However, admissions in superseded pleadings may be received in evidence against the pleader; and claims or defenses alleged therein not incorporated in the amended pleading shall be deemed waived.

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CASES: 1.

JUDICIAL NOTICE City of Manila vs. Garcia 19 SCRA 413 (1967) Judicial Notice

FACTS: Finding that it was necessary to expand the school grounds of Epifanio de los Santos Elementary School, Manila’s City Engineer, pursuant to the Mayor’s directive, ordered the illegal occupants/squatters (defendants) to vacate the property contiguous to the school. The defendants refused to vacate, thus, prompting the City of Manila to file a suit to recover possession over the land. The Court of First Instance (CFI) of Manila favored the plaintiff. Consequently, the squatters appealed and questioned the lower court’s finding that the city needs the premises for school purposes. The city’s evidence on this point was the certification of the Chairman Committee on Appropriations of the Municipal Board. The certification recites that the amount of P100,000 had been set aside in Ordinance 4566, the 1962-63 Manila City Budget, for the construction of an additional building of the elementary school. The said document was originally deemed inadmissible, but was, subsequently, admitted into evidence by the lower court. Hence, the defendants appealed. ISSUE: Whether or not the CFI of Manila had properly found that the City of Manila needs the premises for school purposes (considering that it had a contradictory stance regarding the admissibility of the evidence of the City on this point). RULING: The CFI of Manila properly found that the city needs the premises for school purposes. It is beyond debate that a court of justice may alter its ruling while the case is within its power, to make it conformable to law and justice. Such was done here. The defendants’ remedy was to bring the attention of the court to its contradictory stance. Not having done so, the Supreme Court will not reopen the case solely for this purpose. Anyway, elimination of the certification as evidence would not benefit the defendants. For in reversing his stand, the trial judge could have well taken – because he was duty bound to take judicial notice of Ordinance 4566. The reason being that the city charter of Manila requires that all courts sitting therein to take judicial notice of all ordinances passed by the municipal board of Manila. By: Aaron Roi B Riturban

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Baguio vs. . Vda de Jalagat 42 SCRA 337 (1971) Judicial Notice FACTS: GABRIEL BAGUIO filed for the quieting of title to real property against TEOFILA JALAGAT and her minor children with the Court of First Instance (CFI) of Misamis Oriental. The Jalagats filed a motion to dismiss on the ground that the present complaint is barred by a previous judgment rendered by the same court. The previous case involved practically the same property, the same cause of action, and the same parties, with Melecio Jalagat (Teofila’s deceased husband and predecessor in interest) as the defendant. The previous case was terminated with the court dismissing Baguio’s complaint. Acting on the motion and taking judicial notice of its previous judgment, the lower court dismissed the present complaint on the ground of res judicata. Consequently, Baguio appealed the order of dismissal. He claimed that for the ground of res judicata to suffice as a basis for dismissal it must be apparent on the face of the complaint. ISSUE: Whether or not the CFI of Misamis Oriental was correct in finding that there was res judicata by taking judicial notice of its previous judgment. RULING: THE CFI OF MISAMIS ORIENTAL WAS CORRECT IN TAKING JUDICIAL OF ITS PREVIOUS JUDGMENT. It ought to be clear even to the appellant that under the circumstances, the lower court certainly could take judicial notice of the finality of judgment in a case that was previously pending and thereafter decided by it. That was all that was done by the lower court in decreeing the dismissal. Certainly, such an order is not contrary to law. The Supreme Court quoted Chief Justice Morgan, who said: “Courts have also taken judicial notice of previous cases to determine whether or not the case pending is a moot one or whether or not the previous ruling is applicable in the case under consideration.” By: Aaron Roi B Riturban Prieto vs. Arroyo 14 SCRA 549 (1965) Judicial Notice FACTS: ZEFERINO ARROYO and GABRIEL PRIETO were registered owners of adjoining lots in Camarines Sur. After Zeferino died, his heirs had a new certificate of title registered in their names. Subsequently, the heirs discovered that the technical description set forth in their transfer certificate of title and in the original certificate of title did not conform with that embodied in the decision of the land registration court (which registered the land in Zeferino’s name), and was less in area by 157 square meters. They, therefore, filed a petition for the

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correction of the said description in their titles. Thereafter, the court issued an order directing the correction of the technical description of the land covered by their title. Gabriel filed a petition to annul the order granting the correction claiming that the 157 square meters were unduly taken from his lot. However, his petition was dismissed for failure to prosecute. Thus, Gabriel filed a second petition containing similar allegations. As expected, the court dismissed his second petition on the ground of res judicata. Hence, Gabriel appealed to the Supreme Court to question the dismissal of his second petition. He insisted that there was no res judicata since the dismissal of his first petition was erroneous. He claimed that the lower court should have not dismissed his first petition for failure to prosecute because “no ‘parole’ evidence need be taken to support it, the matters therein alleged being part of the records land registration proceedings, which were well within the judicial notice and cognizance of the court.” ISSUE: Whether or not the Court of First Instance (CFI) of Camarines Sur (in dismissing the first petition of Gabriel) erred in not taking judicial notice of the parts of the records of the land registration proceedings that would have supported Gabriel’s allegations, thus, making the dismissal for failure to prosecute erroneous. RULING: THE CFI OF CAMARINES SUR WAS CORRECT IN NOT TAKING JUDICIAL NOTICE OF THE RECORDS THE LAND REGISTRATION PROCEEDINGS. As a general rule, courts are not authorized to take judicial notice, in the adjudication of the cases pending before them, of the contents of other cases, even when such cases have been tried or are pending in the same court, and notwithstanding the fact that both cases may have been tried or actually pending before the same judge. Besides, if Gabriel really wanted the court to take judicial notice of such records, he should have presented the proper request or manifestation to that effect. For failing to do so in the appropriate time, the dismissal of the first petition is now valid and binding on him. Thus, the dismissal on the ground of res judicata must be sustained. By: Aaron Roi B Riturban Yao-Kee vs. Sy-Gonzales 167 SCRA 736 (1988) Judicial Notice FACTS: Sy Kiat, a Chinese national, died intestate, leaving real and personal properties in the Philippines. AIDA SY-GONZALES and the other children of Sy with Asuncion Gillego filed a petition for the settlement of his estate. YAO KEE filed her opposition to the petition claiming that she is the legitimate wife of Sy. The probate court sustained the validity of Yao’s marriage to Sy, but the Court of Appeals (CA) reversed the lower court’s decision and held that the petitioner’s and Yao’s children were all of illegitimate status. The CA ruled that the marriage between Yao and Sy was not proven to be valid under the Chinese laws.

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Hence, Yao filed a petition for review with the Supreme Court claiming that the CA erred in holding that the validity of the foreign marriage between Yao and Sy had not been proven. To support this contention, Yao claimed that the CA should have taken judicial notice of the Chinese laws on marriage which show the validity of her marriage to Sy. ISSUE: Whether or not the CA should take judicial notice of foreign laws (i.e. Chinese laws on marriage), thus, relieving Yao of her duty of proving the validity of her marriage under Chinese laws. RULING: COURTS CANNOT TAKE JUDICIAL NOTICE OF FOREIGN LAWS. Under the Philippine jurisprudence, to establish a valid foreign marriage two things must be proven: (1) the existence of the foreign law as a question of fact; and (2) the alleged foreign marriage by convincing evidence. Though Yao may have established the fact of marriage, she has failed to prove the Chinese laws on marriage that would show the validity of her marriage to Sy. Well-established is the rule that Philippine courts cannot take judicial notice of foreign laws or customs. They must be alleged and proved as any other fact. On this point, Yao cannot rely on a the case of Sy Joc Lieng v. Sy Quia (16 Phil. 137 (1910)) to prove her case. The ruling that case did not show that the court took judicial notice of Chinese laws on marriages. Even assuming for the sake of argument that the court did take judicial notice of Chinese laws or customs on foreign marriages in that case, Yao still failed to show that the law assumed to recognized in Sy Joc Lieng case (wherein the marriage was celebrated in 1847) was still applicable during the time of her marriage to Sy, which took place 84 years later. Hence, the CA was correct in considering that the validity of the marriage between Yao and Sy has not been established. By: Aaron Roi B Riturban Tabuena vs. Court of Appeals 196 SCRA 650 (1991) Judicial Notice FACTS: The subject of the dispute is a parcel of residential land of about 440 sq. meters in Makato, Aklan. In 1973, an action for recovery of ownership was filed by the estate of Alfredo Tabernilla against Jose Tabuena. After trial, the court ordered Tabuena to return the property to Tabernilla. At the trial, it was found that the lot was sold by Juan Peralta, Jr. in 1926 to Tabernilla while they were in the United States. Upon Tabernilla’s return to the Philippines in 1934, Damasa Timtiman, mother of Juan Peralta acting upon Juan’s instructions conveyed the land to Tabernilla. Upon her request, she was supposedly allowed by Tabernilla to remain in the said lot provided she paid the realty taxes on the property which she did do so. She remained on the lot until her death and, thereafter, the property was taken possession by Tabuena. This complaint was filed after a demand for Tabuena to vacate was made. The trial court rejected his defense that the subject of the sale was a different lot and that he was the absolute owner of the said property by virtue of the inheritance he acquired 3C 2003-2004 Evidence Project Vol. 1 - 24 -

from his deceased parent. The Court of Appeals affirmed the decision of the trial court, rejecting therein his claim that the trial court erred in taking cognizance of Exhibits “A”, “B”, & “C’ which had been marked but not formally offered in evidence by Tabernilla. ISSUE(S): (1) Whether or not it was proper for the CA and trial court properly took cognizance of the exhibits even if they were not formally offered during trial? (2) Whether or not the trial court erred in taking judicial notice of Tabuena’s testimony in a case it had previously heard which was closely connected with the case before it? RULING: The SC reversed the decision and ruled in favor of Tabuena. (1) No. The mere fact that a particular document is marked as an exhibit does not mean it has thereby already been offered as part of the evidence of a party. It is true that Exhibits “A,” “B,” and “C” were marked at pre-trial but this was only for identifying them and not for making a formal offer. It is during the trial that the party presenting the marked evidence decides whether to offer the evidence or not. In case they don’t, such documents cannot be considered evidence, nor can they be given any evidentiary value. An exception was given in People vs. Napat-a, wherein the court ruled that evidence even if not offered can be admitted against the adverse party if: first, it has been duly identified by testimony duly recorded and second, it has itself been incorporated in the records of the case. In this case, these requirements had not been satisfied. The documents were indeed testified to but there was no recital of its contents having been read into the records. (2) Yes. The Court of Appeals conceded that as a general rule, “courts are not authorized to take judicial notice in the adjudication of cases pending before them of the contents of the records of other cases, even when such events have been tried or are pending in the same court, and notwithstanding the fact that both cases may have been heard or are actually pending before the same judge.” Nevertheless, it applied the exception that “in the absence of objection,” “with the knowledge of the opposing party,” or “at the request or with the consent of the parties,” the case is clearly referred to or “the original or part of the records of the case are actually withdrawn from the archives” and admitted as part of the record of the case then pending. These conditions however, were not established in this case. Tabuena was completely unaware that the court had taken judicial notice of Civil Case no. 1327. Thus, the said act by the trial court was improper. By: Frank John Abdon

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People vs. Godoy 250 SCRA 676 (1995) Judicial Notice FACTS: This is an automatic review of the decision of the RTC in view of the death sentence imposed upon Danny Godoy, who was charged in two separate informations with rape and another for kidnapping with serious illegal detention. Complainant Mia Taha alleged that Godoy, her Physics Teacher and a married man raped her first on Jan. 21, 1994 in her cousin’s boarding house wherein upon entering the back door, Godoy pointed a knife at her. As Godoy removed her panties and brought out his penis to rape her, a knife was pointed at her neck. As such, she was not able to resist. The next day, Godoy came by their house and asked the permission of her parents if she can join him in soliciting funds, since Mia was a candidate for Ms. Palawan National School (PNS). Mia’s parents allowed her to go with Godoy and she was allegedly brought to the Sunset Garden Motel where she was repeatedly raped again. After three days, they transferred to Edward’s subdivision where she was kept in a lodging house and was again raped. During this time, a police blotter had already been placed for the missing Mia. She was later released by Godoy after a certain Naem interceded and only after her parents agreed to settle the case. It was after Mia’s return that her parents accompanied her to a medico-legal which found lacerations in her vagina concluding that “she just had sexual intercourse.” She and her mother Helen went to the police and executed sworn statements stating that the accused Godoy had raped and abducted Mia. Godoy denied that he raped Mia Taha. He admitted having had sex with her and that they indeed stayed in Sunset Gardens and in Edward’s Subdivision, but it was because they were lovers and that Mia had consented to their having sex. To support his claim that they were lovers, he presented two letters supposedly delivered to him in the provincial jail while he was detained by Mia’s cousin Lorna. There Mia explained that it was her parents who forced her to testify against him. The delivery of the letter was denied by Lorna but the defense presented the provincial jail guard on duty on the supposed date of the delivery and testified that indeed Lorna had visited Godoy on said date. Several witnesses were also presented including two former teachers of Mia who knew the handwriting on the two said letters as belonging to Mia having been their former student and where thus familiar with her handwriting particularly those made in her test papers. Other witnesses were presented by the defense attesting that they saw the two together in a manner that was affectionate and cordial, prior to the said “kidnapping” and even during such. ISSUE: Whether or not the prosecution was able to prove beyond reasonable doubt the guilt of the accused RULING: The Supreme Court acquitted Danny Godoy . Three guiding principles in the appellate review of the evidence of the prosecution for the crime of rape, namely: a) while rape is a most detestable crime, it must be borne in mind 3C 2003-2004 Evidence Project Vol. 1 - 26 -

that it is an accusation easy to be made, hard to be proved, but harder to be defended by the party accused, though innocent; b) the testimony of the complainant must be scrutinized with extreme caution; and c) that the evidence for the prosecution must stand or fall on its own merits and cannot be allowed to draw strength from the weakness of the evidence for the defense. Mia claimed that the appellant always carried a knife but it was never explained how she was threatened with the same in such a manner that she was allegedly always cowed into giving in to his innumerable sexual demands. In taking judicial notice, the Supreme Court said that it is not unaware that in rape cases, the claim of the complainant of having been threatened appears to be a common testimonial expedient and face-saving subterfuge. But it had not been duly corroborated by other evidence nor proved that the accused indeed always carried a knife. The SC also takes judicial cognizance of the fact that in rural areas (such as in Palawan) young ladies are strictly required to act with circumspection and prudence. Great caution is observed so that their reputations shall remain untainted. Any breath of scandal which brings dishonor to their character humiliates their entire families. It could precisely be that complainant’s mother wanted to save face in the community where everybody knows everybody else, and in an effort to conceal her daughter’s indiscretion and escape wagging tongues of their small rural community, she had to weave the scenario of this rape drama. By: Frank John Abdon BPI-Savings vs. Court of Tax Appeals 330 SCRA 507 (2000) Judicial Notice FACTS: This case involves a claim for tax refund in the amount of P112,491.00 representing BPI’s tax withheld for the year 1989. BPI’s 1989 Income Tax Return (ITR) shows that it had a total refundable amount of P297,492 inclusive of the P112,491.00 being claimed as tax refund in this present controversy. However, BPI declared in the same 1989 ITR that the said total refundable amount of P297,492.00 will be applied as tax credit to the succeeding taxable year. On October 11, 1990, BPI filed a written claim for refund in the amount of P112,491.00 with the Commissioner of Internal Revenue (CIR) alleging that it did not apply the 1989 refundable amount to its 1990 Annual ITR or other tax liabilities due to the alleged business losses it incurred for the same year. Without waiting for the CIR to act on the claim for refund, BPI filed a petition for review with the CTA, seeking the refund of the amount of P112,491.00. The CTA dismissed BPI’s petition on the ground that petitioner failed to present as evidence its Corporate Annual ITR for 1990 to establish the fact that BPI had not yet credited the amount of P297,492.00 to its 1990 income tax liability. BPI filed a Motion for Reconsideration which was denied by the CTA. The CA affirmed the CTA. Hence, this Petition. Before the Supreme Court, the petitioner called the attention of the Court to a Decision rendered by the Tax Court in CTA Case No. 4897 involving its claim for refund for the year 1990 wherein the Tax Court held that “petitioner suffered a net loss for the taxable year 1990.” Respondent, however, urges the Supreme Court not to do so. 3C 2003-2004 Evidence Project Vol. 1 - 27 -

ISSUE: Whether or not the Court may take judicial notice of the Decision by the CTA in deciding the present case? RULING: AS A RULE, "courts are not authorized to take judicial notice of the contents of the records of other cases, even when such cases have been tried or are pending in the same court, and notwithstanding the fact that both cases may have been heard or are actually pending before the same judge." Be that as it may, Section 2, Rule 129 provides that courts may take judicial notice of matters ought to be known to judges because of their judicial functions. In this case, the Court notes that a copy of the Decision in CTA Case No. 4897 was attached to the Petition for Review filed before this Court. Significantly, respondents do not claim at all that the said Decision was fraudulent or nonexistent. Indeed, they do not even dispute the contents of the said Decision, claiming merely that the Court cannot take judicial notice thereof. This merely showed the weakness of the respondent’s case because they did not take steps to prove that BPI did not suffer any loss in 1990. Respondents opted not to assail the fact appearing therein - that petitioner suffered a net loss in 1990 – the same way that it refused to controvert the same fact established by petitioner’s other documentary exhibits. The Decision in CTA Case No. 4897 is not the sole basis of petitioner’s case. It is merely one more bit of information showing that the petitioner did not use its 1989 refund to pay its taxes for 1990. By: Frank John Abdon 2.

JUDICIAL ADMISSIONS Lucido vs. Calupitan 27 Phil. 48 (1914) Judicial Admissions

FACTS: The properties of Leonardo Lucido were sold on auction on Feb. 10, 1903 to Rosales and Zolaivar. On March 30, 1903, Rosales and Zolaivar with the consent of Lucido, sold the properties to Calupitan via a public document. On the same day, Calupitan and Lucido executed a document admitting the sale and that their real agreement was that redemption by Lucido can only be effected 3 years. from the date of the document. Lucido tendered the redemption price to Calupitan. For failure of the latter to surrender the properties to Lucido, this case was instituted. Calupitan claimed that the sale was not one with a right to redeem. The lower court decided in favor of Lucido. ISSUE: Whether or not Calupitan’s original answer to the complaint may be used as evidence against him to prove that a sale with a right to redeem was in fact agreed to by both parties? RULING:

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Yes, Calupitan’s original answer to the complaint expressly stated that the transaction was one of sale with right to repurchase. The Court held that its admission was proper, especially in view of the fact that it was signed by Calupitan himself, who was acting as his own attorney. The Court cited Jones on Evidence (sec. 272, 273) which stated that although pleadings were originally considered as inadmissible as admissions because it contained only pleader’s matter (fiction stated by counsel and sanctioned by the courts), modern tendency was to treat pleadings as statements of real issues and herein, admissions of the parties. By: Frank John Abdon

Torres vs. Court of Appeals 11 SCRA 24 (1984) Judicial Admissions FACTS: This is a Petition for Review, treated as a special civil action praying that the decision of the CA be set aside. Lot no. 551 was originally owned by Margarita Torres. Margarita was married to Claro Santillan and out of this union were begotten Vicente and Antonina. Claro died. Antonina married and had six children, who, together with Vicente are the private respondents. After Claro’s death, Margarita cohabited with Leon Arbole, and out of this, petitioner Macaria Torres was born. Lot no. 551, an urban lot, was leased to Margarita, who was the actual occupant of the lot. A Sale Certificate was issued to Margarita by the Director of Lands. The purchase price was to be paid in installments. According to testimonial evidence, Leon paid the installments out of his own earnings. Before his death, Leon sold and transferred all his rights to ½ portion of the lot in favor of petitioner Macaria. Subsequently, Vicente executed an Affidavit claiming possession of Lot no. 551 and petitioned the Bureau of Lands for the issuance of title in his name. A title was then issued in the name of the legal heirs of Margarita (private respondents). On June 3, 1954, respondents filed a complaint against petitioner for forcible entry alleging that petitioner entered a portion of Lot no. 551 without their consent and constructed a house therein. The case was decided against the petitioner. On June 8, 1954, petitioner instituted an action for Partition of Lot. N0. 551 alleging that said lot was conjugal property and the she is the legitimated child of Margarita and Leon. The ejectment case and the partition case was consolidated. The trial court ruled that the lot was paraphernal property of Maragarita and adjudicated 2/3 of the lot to respondents and 1/3 to petitioner Macaria. On Motion for Reconsideration, the decision was amended with Macaria being entitled to 4/6 of the lot. On appeal to the CA, the CA changed Macaria’s share to ½ of the lot and declared that she is not a legitimated child. Petitioner now alleges that although the CA is correct in declaring that she is not a legitimated child of the spouses, it has overlooked to include in its findings of facts the admission made by the respondents that she and Vicente and Antonina are brothers and sisters and they are the legal heirs and nearest of relatives of Maragarita. The admission adverted to 3C 2003-2004 Evidence Project Vol. 1 - 29 -

appears in paragraph 3 of respondents’ original complaint in the Ejectment Case, which was however subsequently amended. ISSUE: Whether or not said statement in the original complaint must be treated as a judicial admission despite the fact that the same statements no longer appears in the amended complaint? RULING: No, in the Amended Complaint filed by respondents in the same ejectment case, the supposed admission was deleted and in fact the statement simply read, “That plaintiffs are the legal heirs and nearest of kin of Margarita.” By virtue thereof, the amended complaint takes the place of the original. The latter is regarded as abandoned and ceases to perform any further function as a pleading. The original complaint no longer forms part of the record. If petitioner had intended to utilize the original complaint, she should have offered it in evidence. Having been amended, the original complaint lost its character as a judicial admission, which would have required no proof, and became merely an extrajudicial admission of which as evidence, required its formal offer. Contrary to petitioner’s submission, therefore, there can be no estoppel by extrajudicial admission in the original complaint, for the failure to offer it in evidence. Teehankee, separate opinion: Such admission did not cease to be a judicial admission simply because respondents subsequently deleted the same in their amended complaint. The original complaint, although replaced by an amended complaint, does not cease to be part of the judicial record, not having been expunged therefrom. By: Frank John Abdon Bitong vs. Court of Appeals 292 SCRA 503 (1998) Judicial Admissions FACTS: Petitioner Nora Bitong, claiming to be a former Treasurer and Member of the Board of Directors of Mr. & Ms. Publishing Co. filed a derivative suit before the Securities and Exchange Commission (SEC) allegedly for the benefit of private respondent Mr. & Ms. Publishing Co., Inc. to hold respondent spouses Eugenia Apostol and Jose Apostol liable for fraud, misrepresentation, disloyalty, evident bad faith, conflict of interest and mismanagement in directing the affairs of Mr. & Ms to its damage and prejudice and its stockholders. She further alleged that respondents Apostol, Magsanoc and Nyuda subscribed to Philippine Daily Inquirer (PDI) shares of stock; the stock subscriptions were paid for by Mr. & Ms. and treated as receivables from officers and employees but no payments were ever received from respondents. The petition principally sought to enjoin respondent spouses from further acting a president-director and director, respectively of Mr. & Ms and disbursing any money or funds except for the payment of salaries and similar expenses in the ordinary course of business. 3C 2003-2004 Evidence Project Vol. 1 - 30 -

Private respondents refuted the allegations of petitioner saying that she was merely a holder-intrust of JAKA shares and only represented and continue to represent JAKA in the board. JAKA, owned by spouses Senator Juan Ponce Enrile and Cristina Ponce Enrile, is one of the original stockholders of Mr. & Ms.. The respondents averred that the real party-in-interest was JAKA and not petitioner. Bitong testified at trial that she became the registered owner of 997 shares of stock of Mr. & Ms. after she acquired them from JAKA through a deed of sale.The SEC Hearing Panel dismissed the derivative suit. The SEC En Banc reversed the decision of the Hearing Panel. The Court of Appeals reversed the decision of the SEC En Banc and held that from the evidence in record, petitioner was not the owner of the shares of stock in Mr. & Ms. and therefore not a real party-in-interest to prosecute the claim. She was merely an agent who cannot file a derivative suit in behalf of her principal. Before the Supreme Court, petitioner submits that in her Amended Petition in the SEC, she stated that she was a stockholder and director of Mr. & Ms. and even declared that “she is the registered owner of 1,000 shares of stock of Mr. & Ms. out of the latter’s 4,088 total outstanding shares, and that she was a member of the Board of Directors and treasurer of said company. She contends that respondents did not deny the above allegations in their answer and are therefore conclusively bound by this judicial admission. ISSUE: Whether or not there was judicial admission on the part of the respondents that petitioner is a stockholder of Mr. & Ms.? RULING: The answer of private respondents shows that there was no judicial admission that petitioner was a stockholder of Mr. & Ms. to entitle her to file a derivative suit on behalf of the corporation. The affirmative defenses of private respondents directly refute the representation of petitioner that she is a true stockholder of Mr. & Ms, by stating unequivocally that petitioner is not the true party to the case but JAKA which continues to be the stockholder of Mr. & Ms. In fact, one of the reliefs prayed for was the dismissal of the petition on the ground that petitioner did not have the legal interest to initiate and prosecute the same. When taken in its totality, the Amended Answer to the Amended Petition and even the Answer to the Amended Petition alone, clearly raises an issue to the legal personality of the petitioner to file the complaint. With regard to the contention of the petitioner that respondents’ admission that she has 1,000 shares of stocks registered in her name forecloses any question on her status and right to bring a derivative suit the Court said: Where the statements of the private respondents were qualified with phrases such as, “insofar as they are limited, qualified and/or expanded by,” “the truth being as stated in the Affirmative Allegations/Defenses of this Answer” they cannot be considered definite and certain enough to be construed as judicial admissions. A party whose pleading is admitted as an admission against interest is entitled to overcome by evidence the apparent inconsistency and it is competent for the party against whom the pleading is offered to show that the statements were inadvertently made or made under a mistake of fact. While an admission is admissible in evidence, its probative value is to be determined from the whole statement and others intimately related or connected therewith. Although acts or facts admitted do not require proof and cannot be contradicted, evidence aliunde can be presented to show that the 3C 2003-2004 Evidence Project Vol. 1 - 31 -

admission was made through palpable mistake. The rule is always in favor of the liberality in construction of pleadings so that the real matter in dispute may be submitted for judgment in the court. By: Frank John Abdon

III.

REAL AND DEMONSTRATIVE EVIDENCE A.

RULE 130; SEC. 1; SEC. 2 Rule 130 RULES OF ADMISSIBILITY B.

OBJECT (REAL) EVIDENCE

SECTION 1. Object as evidence. – Objects as evidence are those addressed to the senses of the court. When an object is relevant to the fact in issue, it may be exhibited to, examined or viewed by the court. C.

DOCUMENTARY EVIDENCE

SECTION 2. Documentary evidence. – Documents as evidence consist of writings or any material containing letters, words, numbers, figures, symbols or other modes of written expressions offered as proof of their contents. Cases: People vs. Bardaje 99 SCRA 388 (1980) Real and Demonstrative Evidence FACTS: The accused, Adelino Bardaje was convicted of Forcible Abduction with Rape and sentenced to death. Thus, the case is brought to the SC for automatic review. The complainant Marcelina Cuizon claimed that she was dragged by the accused together with five other persons from the house of a certain Fernandez by means of force and intimidation and at nighttime. Also, she narrated that Bardaje slapped her rendering her unconscious and when she regained consciousness in a hut, Bardaje was holding her hands and removing her panties. Despite her struggle, Bardaje succeeded in having sexual intercourse with her while his companions kept guard.

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When Cuizon underwent physical examination, the doctor found that there were “old healed lacerations” which may have been caused by possible sexual intercourse or other factors, and if it were intercourse, it could have occurred “two weeks or one month ago.” During trial, Adelino admitted having had carnal knowledge of the victim but denied having raped her. He claims that they eloped as previously planned. ISSUE: Whether or not the guilt of Bardaje was established beyond reasonable doubt? RULING: No. Cuizon’s charge that she was forcibly abducted and afterwards raped was highly dubious and inherently improbable. According to the medical findings, “no evidence of external injuries was found around the vulva or any part of the body.” Considering that complainant was allegedly “dragged,” “slapped” into unconsciousness, “wrestled” with and criminally abused. Physical evidence is of the highest order and speaks more eloquently than all witness put together. The medical findings of “old healed lacerations” in the hymen which according to the testimony of the examining physician would have occurred two weeks or even one month before, if said lacerations had been caused by sexual intercourse. This expert opinion bolsters the defense that Bardaje and Cuizon had previous amorous relations at the same time that it casts serious doubts on the charge of intercourse by force and intimidation. It is impossible that complainant could have been raped by the accused inside a small room occupied by a woman and two children and in a small hut where the owner, his wife and seven children are all present. It is improbable that she could have been sexually abused with so many within hearing and seeing distance. Under the abovementioned circumstances, the Five Others who stood guard outside while Adelino allegedly took advantage of her. Would have taken turns in abusing her if rape indeed happen. The fact that they did not do so, implies a special relationship between Marcelino and Adelino. This is a case where a young girl could not admit to her parents that she had eloped and voluntarily submitted to sexual intercourse. She was left with no choice but to charge Bardaje with rape or incur the ire of her parents and social disrepute from a small community. By: Raymond Joseph Ibon Sison vs. People 250 SCRA 58 (1995) Real and Demonstrative Evidence FACTS: Several informations were filed in court against eleven persons (Sison et al) identified as Marcos loyalists charging them with the murder of Stephen Salcedo, a supporter of Cory Aquino, which happened on the occasion of a rally held by the Marcos loyalists at Luneta. After being asked to disperse the crowd for not having with them the required permit, the loyalists started hurling stones toward the police officers at the scene, and directed their ire 3C 2003-2004 Evidence Project Vol. 1 - 33 -

against Cory supporters. Salcedo, wearing a yellow shirt was ganged upon by several men, and he was beaten and mauled. When he tried to get away from his attackers by running away, the attackers ran after him and when they caught up with him, he was further beaten until he was knocked unconscious. He was dead upon arriving at the PGH. All these were witnessed by Renato Banculo, a cigarette vendor. Banculo and Sumilang (who was also a witness who tried to help Salcedo but to no avail) were principal witnesses for the prosecution. The incident was also witnessed by photographers, whose pictures ere published in major newspapers in Metro Manila and were presented as evidence as to the participation of the accused in the mauling. Several of the accused were photographed with Salcedo. Despite their defense of alibis, the trial court convicted several of the accused of homicide and acquitted the others. Upon appeal to the CA, the charge was qualified to murder. In the SC, the accused question the admissibility of the photographs taken of the victims as he was being mauled at the Luneta, for lack of proper identification by the person or persons who took the same. ISSUE: Whether or not the photographs should be admitted as evidence against the accused? RULING: Yes. The rule in this jurisdiction is that photographs, when presented in evidence, must be identified by the photographer as to its production and testified as to the circumstances which they were produced. The value of this kind of evidence lies in its being a correct representation or reproduction of the original, and its admissibility is determined by its accuracy in portraying the scene at the time of the crime. The photographer, however, is not only the witness who can identify the pictures he has taken. The correctness of the photograph as a faithful representation of the object portrayed can be proved prima facie, either by the testimony of the person who made it or by other competent witnesses, after which the court can admit it subject to impeachment as to its accuracy. Photographs, therefore, can be identified by the photographer or by any other competent witness who can testify to its exactness and accuracy. Even if the person who took the photographs was not presented to identify them, the use of these photos by some of the accused to show their alleged non-participation in the crime is an admission of the exactness and accuracy thereof. That the photos are faithful representations of the mauling incident was affirmed when appellants identified themselves therein and gave reasons for their presence thereat. By: Raymond Joseph Ibon Adamczuk vs. Holloway 13 A.2d.2 (1940) Real and Demonstrative Evidence FACTS:

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Jack Adamczuk brought an action in trespass against defendants car owner Morris Cohon and driven by defendant Elmer Holloway for an incident arising out of the collision between the cars they were driving. The accident took place at 9:30 p.m. at the junction were Highway Route 6 meet with Bridgeville Road. Adamczuk was driving southwardly on the Bridgeville Road and Holloway was driving eastwardly on Route 6. The jury ruled in favor of Holloway. Adamczuk’s motion for a new trial was refused and these appeals followed. It was found that on trial, Jack Adamczuk was on the stand and he was shown “Exhibit no. 3,” a picture and when queried as to what it depicted, he replied, “the conditions represented by that picture truly represents the conditions of the crossing at the time of this accident except for the fact of daylight or dark.” Then the exhibit was offered in evidence. On cross, it was disclosed that the witness did not know who took the picture or when it was taken. He could not relate the circumstances at to how the picture was taken. The court then sustained the objection to the picture’s introduction, wherein the court did not admit it. The none admission of this evidence is the main issue asserted by the plaintiff in this appeal. ISSUE: Whether or not the Photograph (Exhibit no. 3) is admissible as evidence even if the taker is not presented to verify the picture? RULING: The court affirmed the decision. The rule is well settled that a photograph may be put in evidence if relevant to the issue and if verified. It does not have to be verified by the taker. Its verification depends on the competency of the verifying witness and as to that the trial judge must in the first instance decide, subject to reversal for substantial error. The map or photograph must first, to be admissible, be made a part of some qualified person’s testimony. Some one must stand forth as its testimonial sponsor; in other words, IT MUST BE VERIFIED. If a witness is familiar with the scene photographed and is competent to testify that the photograph correctly represents it, it should, if relevant, be admitted. There is also a rule giving the trial judge discretion to reject a picture, on the ground that the evidence is cumulative or that the photograph is unnecessary. This can be done the court in such situations that there are far better photographs of the place taken than the photo offered or the jury had personally visited the place photographed. “The question of the sufficiency of the preliminary proofs to identify a photograph and show that it is a fair representation of the objects which it purports to portray is a question committed to the discretion of the trial judge.” The court thus finds that the exclusion under the facts of this case amounted to reversible error because: a.) the jury had the benefit of other photos of the intersection b.) the testimony of Herbert Dillard c.) Also, it would not support Adamczuk’s contention that he had his head turned at a 45 degree angle and, thus, being able to see for 200 feet only. This caused him not to see the car coming from the west. But Dillard’s testimony stated that at the intersection he had an unobstructed view to the west of 793 feet. 3C 2003-2004 Evidence Project Vol. 1 - 35 -

By: Raymond Joseph Ibon State of Washington vs. Tatum 360 P.2d 754 (1961) Real and Demonstrative Evidence FACTS: William Tousin received monthly welfare checks from the state of Washington. In February of 1960, Tousin did not receive his check which was normally mailed to him. It was discovered that Tousin’s check had been taken by Ralph Tatum who subsequently forged an endorsement on the check to his name and cashed the same at a food store. A criminal case was subsequently brought against Tatum for first degree forgery. During the trial, Caroline Pentecost, an employee of the store, testified that, although she could not recall the specific transaction involving Tatum, the initials appearing on the back of the check were hers. She explained that whenever a check was presented to her for payment at the store, she had been instructed by the manager to initial it and then to insert it into a “regiscope” machine. The machine was designed to simultaneously photograph both the check and the person facing the machine. The Regiscope film of the transaction was then sent to the Regiscope distributor to be developed. The processed film showed both the check and the person of Tatum with the food store in the background. The negative and the print were admitted in evidence and Tatum was convicted and sentenced to life imprisonment. On appeal, Tatum questions the film’s admission into evidence. ISSUE: Whether or not the Regiscope films were authenticated sufficiently to warrant their admission into evidence? RULING: Yes. The quantum of authentication required by the courts before a photograph may be admissible in evidence was stated thus: “that some witness, not necessarily the photographer, be able to give some indication as to when, where and under what circumstances the photograph was taken, and the photograph accurately portray the subject or subjects illustrated.” The photograph need only be sufficiently accurate to be helpful to the court and the jury. Witness Pentecost testified that she recognized the background shown in the picture as that of the food store, and as already mentioned, she testified as to the store’s standard procedure of “regiscoping” each individual who cashed a check at the store. Also, one Philip Dale testified at length concerning the Regiscope process. The testimony of these two witnesses taken together amounted to a sufficient authentication to warrant admission of the photograph into evidence. The authentication supplied by the testimony summarized above, of course, did not preclude appellant from attempting to prove that the individual portrayed was someone other than the appellant, that the photograph was inaccurate in or more respects, the appellant was 3C 2003-2004 Evidence Project Vol. 1 - 36 -

somewhere else at the moment the photograph was taken, or any other such defense. But these arguments go to the weight rather than to the admissibility of the exhibits in question. In our opinion, the Regiscope exhibits, coupled with the other evidence produced by the state, sufficed to establish a prima facie case of first degree of forgery. By: Raymond Joseph Ibon III. A.

BEST EVIDENCE RULE

RULE 130, SEC. 2-8; SECTION 2. Documentary Evidence – Documents as evidence consist of writings or any material containing letters, words, numbers, figures, symbols, or other modes of written expressions offered as proof of their contents. (n) 1.

Best Evidence Rule

SECTION 3. Original document must be produced; exceptions. – When the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document itself, except in the following cases: ii. When the original has been lost or destroyed, or cannot be produced in court, without bad faith on the part of the offeror; iii. When the original is in the custody or under the control of the party against whom the evidence is offered, and the latter fails to produce it after reasonable notice; iv. When the original consists of numerous accounts or other documents which cannot be examined in court without great loss of time and the fact sought to be established from them is only the general result of the whole; and v. When the original is a public record in the custody of a public officer or is recorded in a public office. (2a) SECTION 4. Original of document. – (a) The original of a document is one the contents of which are the subject of inquiry. (b) When a document is in two or more copies executed at or about the same time, with identical contents, all such copies are equally regarded as originals. (c) When an entry is repeated in the regular course of business, one being copied from another at or near the time of the transaction, all the entries are likewise equally regarded as originals. (3a) 3C 2003-2004 Evidence Project Vol. 1 - 37 -

2.

Secondary Evidence

SECTION 5. When original document is unavailable. – When the original document has been lost or destroyed, or cannot be produced in court, the offeror, upon proof of its execution or existence and the cause of its unavailability without bad faith on his part, may prove its contents by a copy, or by a recital of its contents in some authentic document, or by the testimony of witnesses in the order stated. (4a) SECTION 6. When original document is in adverse party’s custody or control. – If the document is in the custody or under the control of the adverse party, he must have reasonable notice to produce it. If after such notice and after satisfactory proof of its existence, he fails to produce the document, secondary evidence may be presented as in the case of its loss. (5a) SECTION 7. Evidence admissible when original document is a public record. – When the original of a document is in the custody of a public officer or is recorded in a public office, its contents may be proved by a certified copy issued by the public officer in custody thereof. (2a) SECTION 8. Party who calls for document not bound to offer it. – A party who calls for the production of a document and inspects the same is not obliged to offer it as evidence. (6a) RULE 132, SEC. 25 AND 27; SECTION 25. What attestation of copy must state. – Whenever a copy of a document or record is attested for the purpose of the evidence, the attestation must state, in substance, that the copy is a correct copy of the original, or a specific part thereof, as the case may be. The attestation must be under the official seal of the attesting officer, if there be any, or if he be the clerk of court having a seal, under the seal of such court. (26a) SECTION 27. Public record of a private document. – An authorized public record of a private document may be proved by the original record, or by a copy thereof, attested by the legal custodian of the record, with an appropriate certificate that such officer has the custody. (28a) ELECTRONIC COMMERCE ACT (R.A. 8792), SEC. 5, 6-15;

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SECTION 5. Definition of Terms. - For the purposes of this Act, the following terms are defined, as follows: a. “Addressee” refers to a person who is intended by the originator to receive the electronic data message or electronic document. The term does not include a person acting as an intermediary with respect to that electronic data message or electronic document. b. “Computer” refers to any device or apparatus which, by electronic, electromechanical or magnetic impulse, or by other means, is capable of receiving, recording, transmitting, storing, processing, retrieving, or producing information, data, figures, symbols or other modes of written expression according to mathematical and logical rules or of performing any one or more of those functions. c. “Electronic Data Message” refers to information generated, sent, received or stored by electronic, optical or similar means. d. “Information and Communication System” refers to a system intended for and capable of generating, sending, receiving, storing or otherwise processing electronic data messages or electronic documents and includes the computer system or other similar device by or in which data is recorded or stored and any procedures related to the recording or storage of electronic data message or electronic document. e. “Electronic Signature” refers to any distinctive mark, characteristic and/or sound in electronic form, representing the identity of a person and attached to or logically associated with the electronic data message or electronic document or any methodology or procedures employed or adopted by a person and executed or adopted by such person with the intention of authenticating or approving an electronic data message or electronic document. f. “Electronic Document” refers to information or the representation of information, data, figures, symbols or other modes of written expression, described or however represented, by which a right is established or an obligation extinguished, or by which a fact may be proved and affirmed, which is received, recorded, transmitted, stored, processed, retrieved or produced electronically. g. “Electronic Key” refers to a secret code which secures and defends sensitive information that crosses over public channels into a form decipherable only with a matching electronic key. h. “Intermediary” refers to a person who in behalf of another person and with respect to a particular electronic document sends, receives and/or stores or provides other services in respect of that electronic document. i. “Originator” refers to a person by whom, or on whose behalf, the electronic document purports to have been created, generated and/or sent. The term 3C 2003-2004 Evidence Project Vol. 1 - 39 -

does not include a person acting as an intermediary with respect to that electronic document. j. “Service Provider” refers to a provider of – (i) On-line services or network access, or the operator of facilities therefore, including entities offering the transmission, routing, or providing of connections for online communications, digital or otherwise, between or among points specified by a user, of electronic documents of the user’s choosing; or (ii) The necessary technical means by which electronic documents of an originator may be stored and made accessible to a designated or undesignated third party; Such service providers shall have no authority to modify or alter the content of the electronic data message or electronic document received or to make any entry therein on behalf of the originator, addressee or any third party unless specifically authorized to do so, and who shall retain the electronic document in accordance with the specific request or as necessary for the purpose of performing the services it was engaged to perform. CHAPTER II LEGAL RECOGNITION OF ELECTRONIC WRITING OR DOCUMENT AND DATA MESSAGES SECTION 6. Legal Recognition of Data Messages. - Information shall not be denied legal effect, validity or enforceability solely on the grounds that it is in the data message purporting to give rise to such legal effect, or that it is merely referred to in that electronic data message. SECTION 7. Legal Recognition of Electronic Documents. – Electronic documents shall have the legal effect, validity or enforceability as any other document or legal writing, and (a) Where the law requires a document to be in writing, that requirement is met by an electronic document if the said electronic document maintains its integrity and reliability and can be authenticated so as to be usable for subsequent reference, in that (i) The electronic document has remained complete and unaltered, apart from the addition of any endorsement and any authorized change, or any change which arises in the normal course of communication, storage and display; and (ii) The electronic document is reliable in the light of the purpose for which it was generated and in the light of all the relevant circumstances. (b) Paragraph (a) applies whether the requirement therein is in the form of an obligation or whether the law simply provides consequences for the document not being presented or retained in its original form. 3C 2003-2004 Evidence Project Vol. 1 - 40 -

(c) Where the law requires that a document be presented or retained in its original form, that requirement is met by an electronic document if (i) There exists a reliable assurance as to the integrity of the document from the time when it was first generated in its final form; and (ii) That document is capable of being displayed to the person to whom it is to be presented: Provided, That no provision of this Act shall apply to vary any and all requirements of existing laws on formalities required in the execution of documents for their validity. For evidentiary purposes, an electronic document shall be the functional equivalent of a written document under existing laws. This Act does not modify any statutory rule relating to the admissibility of electronic data messages or electronic documents, except the rules relating to authentication and best evidence. SECTION 8. Legal Recognition of Electronic Signatures. - An electronic signature on the electronic document shall be equivalent to the signature of a person on a written document if that signature is proved by showing that a prescribed procedure, not alterable by the parties interested in the electronic document, existed under which (a) A method is used to identify the party sought to be bound and to indicate said party’s access to the electronic document necessary for his consent or approval through the electronic signature; (b) Said method is reliable and appropriate for the purpose for which the electronic document was generated or communicated, in the light of all the circumstances, including any relevant agreement; (c) It is necessary for the party sought to be bound, in order to proceed further with the transaction, to have executed or provided the electronic signature; and (d) The other party is authorized and enabled to verify the electronic signature and to make the decision to proceed with the transaction authenticated by the same. SECTION 9. Presumption Relating to Electronic Signatures. - In any proceedings involving an electronic signature, it shall be presumed that (a) The electronic signature is the signature of the person to whom it correlates; and (b) The electronic signature was affixed by that person with the intention of signing or approving the electronic document unless the person relying on the electronically signed electronic document knows or has notice of defects in or unreliability of the signature or reliance on the electronic signature is not reasonable under the circumstances. 3C 2003-2004 Evidence Project Vol. 1 - 41 -

SECTION 10. Original Documents. - (1) Where the law requires information to be presented or retained in its original form, that requirement is met by an electronic data message or electronic document if: (a) the integrity of the information from the time when it was first generated in its final form, as an electronic data message or electronic document is shown by evidence aliunde or otherwise; and (b) where it is required that information be presented, that the information is capable of being displayed to the person to whom it is to be presented. (2) Paragraph (1) applies whether the requirement therein is in the form of an obligation or whether the law simply provides consequences for the information not being presented or retained in its original form. (3) For the purposes of subparagraph (a) of paragraph (1): (a) the criteria for assessing integrity shall be whether the information has remained complete and unaltered, apart from the addition of any endorsement and any change which arises in the normal course of communication, storage and display; and (b) the standard of reliability required shall be assessed in the light of the purpose for which the information was generated and in the light of all relevant circumstances. SECTION 11. Authentication of Electronic Data Messages and Electronic Documents. - Until the Supreme Court by appropriate rules shall have so provided, electronic documents, electronic data messages and electronic signatures, shall be authenticated by demonstrating, substantiating and validating a claimed identity of a user, device, or another entity in an information or communication system, among other ways, as follows: (a) The electronic signature shall be authenticated by proof that a letter, character, number or other symbol in electronic form representing the persons named in and attached to or logically associated with an electronic data message, electronic document, or that the appropriate methodology or security procedures, when applicable, were employed or adopted by a person and executed or adopted by such person, with the intention of authenticating or approving an electronic data message or electronic document; (b) The electronic data message and electronic document shall be authenticated by proof that an appropriate security procedure, when applicable was adopted and employed for the purpose of verifying the originator of an electronic data message and/or electronic document, or detecting error or alteration in the communication, content or storage of an electronic document or electronic data message from a specific point, which, using algorithm or codes, identifying words or numbers, encryptions, answers back or acknowledgment procedures, or similar security devices.

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The Supreme Court may adopt such other authentication procedures, including the use of electronic notarization systems as necessary and advisable, as well as the certificate of authentication on printed or hard copies of the electronic document or electronic data messages by electronic notaries, service providers and other duly recognized or appointed certification authorities. The person seeking to introduce an electronic data message and electronic document in any legal proceeding has the burden of proving its authenticity by evidence capable of supporting a finding that the electronic data message and electronic document is what the person claims it to be. In the absence of evidence to the contrary, the integrity of the information and communication system in which an electronic data message or electronic document is recorded or stored may be established in any legal proceeding (a) By evidence that at all material times the information and communication system or other similar device was operating in a manner that did not affect the integrity of the electronic data message and/or electronic document, and there are no other reasonable grounds to doubt the integrity of the information and communication system; (b) By showing that the electronic data message and/or electronic document was recorded or stored by a party to the proceedings who is adverse in interest to the party using it; or (c) By showing that the electronic data message and/or electronic document was recorded or stored in the usual and ordinary course of business by a person who is not a party to the proceedings and who did not act under the control of the party using the record. SECTION 12. Admissibility and Evidential Weight of Electronic Data Message and Electronic Documents. - In any legal proceedings, nothing in the application of the rules on evidence shall deny the admissibility of an electronic data message or electronic document in evidence a. On the sole ground that it is in electronic form; or b. On the ground that it is not in the standard written form and electronic data message or electronic document meeting, and complying with the requirements under Sections 6 or 7 hereof shall be the best evidence of the agreement and transaction contained therein. In assessing the evidential weight of an electronic data message or electronic document, the reliability of the manner in which it was generated, stored or communicated, the reliability of the manner in which its originator was identified, and other relevant factors shall be given due regard. SECTION 13. Retention of Electronic Data Message and Electronic Document. - Notwithstanding any provision of law, rule or regulation to the contrary 3C 2003-2004 Evidence Project Vol. 1 - 43 -

(a) The requirement in any provision of law that certain documents be retained in their original form is satisfied by retaining them in the form of an electronic data message or electronic document which – i. Remains accessible so as to be usable for subsequent reference; ii. Is retained in the format in which it was generated, sent or received, or in a format which can be demonstrated to accurately represent the electronic data message or electronic document generated, sent or received; iii. Enables the identification of its originator and addressee, as well as the determination of the date and the time it was sent or received. (b) The requirement referred to in paragraph (a) is satisfied by using the services of a third party, provided that the conditions set forth in subparagraphs (i), (ii) and (iii) of paragraph (a) are met. SECTION 14. Proof By Affidavit. - The matters referred to in Section 12, on admissibility and Section 9, on the presumption of integrity, may be presumed to have been established by an affidavit given to the best of the deponent’s knowledge subject to the rights of parties in interest as defined in the following section. SECTION 15. Cross-Examination. - (1) A deponent of an affidavit referred to in Section 14 that has been introduced in evidence may be cross-examined as of right by a party to the proceedings who is adverse in interest to the party who has introduced the affidavit or has caused the affidavit to be introduced. (2) Any party to the proceedings has the right to cross-examine a person referred to in Section 11, paragraph 4, sub-paragraph c.

RULES ON ELECTRONIC EVIDENCE (“REE”), RULE 2, SEC. 1; RULE 3; RULE 4. RULE 2 DEFINITION OF TERMS AND CONSTRUCTION SECTION 1. Definition of Terms. - For purposes of these Rules, the following terms are defined, as follows: (a) “Asymmetric or public cryptosystem” means a system capable of generating a secure key pair, consisting of a private key for creating a digital signature, and a public key for verifying the digital signature. (b) “Business records” include records of any business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit, or for legitimate purposes.

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(c) “Certificate” means an electronic document issued to support a digital signature which purports to confirm the identity or other significant characteristics of the person who holds a particular key pair. (d) “Computer” refers to any single or interconnected device or apparatus, which, by electronic, electro-mechanical or magnetic impulse, or by other means with the same function, can receive, record, transmit, store, process, correlate, analyze, project, retrieve and/or produce information, data, text, graphics, figures, voice, video, symbols or other modes of expression or perform any one or more of these functions. (e) “Digital Signature” refers to an electronic signature consisting of a transformation of an electronic document or an electronic data message using an asymmetric or public cryptosystem such that a person having the initial untransformed electronic document and the signer’s public key can accurately determine: (i) whether the transformation was created using the private key that corresponds to the signer’s public key; and (ii) whether the initial electronic document had been altered after the transformation was made. (f) “Digitally signed” refers to an electronic document or electronic data message bearing a digital signature verified by the public key listed in a certificate. (g) “Electronic data message” refers to information generated, sent, received or stored by electronic, optical or similar means. (h) “Electronic document” refers to information or the representation of information, data, figures, symbols or other modes of written expression, described or however represented, by which a right is established or an obligation extinguished, or by which a fact may be proved and affirmed, which is received, recorded, transmitted, stored processed, retrieved or produced electronically. It includes digitally signed documents and any print-out or output, readable by sight or other means, which accurately reflects the electronic data message or electronic document. For purposes of these Rules, the term “electronic document” may be used interchangeably with electronic data message”. (i) “Electronic key” refers to a secret code which secures and defends sensitive information that crosses over public channels into a form decipherable only with a matching electronic key. (j) “Electronic signature" refers to any distinctive mark, characteristics and/or sound in electronic form. Representing the identity of a person and attached to or logically associated with the electronic data message or electronic document or any methodology or procedure employed or adopted by a person and executed or adopted by such person with the intention of 3C 2003-2004 Evidence Project Vol. 1 - 45 -

authenticating, signing or approving an electronic data message or electronic document. For purposes of these Rules, an electronic signature includes digital signatures. (k) “Ephemeral electronic communication” refers to telephone conversations, text messages, chatroom sessions, streaming audio, streaming video, and other electronic forms of communication the evidence of which is not recorded or retained. (l) “Information and Communication System” refers to a system for generating, sending, receiving, storing or otherwise processing electronic data messages or electronic documents and includes the computer system or other similar devices by or in which data are recorded or stored and any procedure related to the recording or storage of electronic data message or electronic document. (m) “Key Pair” in an asymmetric cryptosystem refers to the private key and its mathematically related public key such that the latter can verify the digital signature that the former creates. (n) “Private Key” refers to the key of a key pair used to create a digital signature. (o) “Public Key” refers to the key of a key pair used to verify a digital signature. RULE 3 ELECTRONIC DOCUMENTS SECTION 1. Electronic documents as functional equivalent of paper-based documents. – Whenever a rule of evidence refers to the term of writing, document, record, instrument, memorandum or any other form of writing, such term shall be deemed to include an electronic document as defined in these Rules. SEC. 2. Admissibility. – An electronic document is admissible in evidence if it complies with the rules on admissibility prescribed by the Rules of Court and related laws and is authenticated in the manner prescribed by these Rules. SEC. 3. Privileged communication. – The confidential character of a privileged communications is not solely on the ground that it is in the form of an electronic document. RULE 4 BEST EVIDENCE RULE SECTION 1. Original of an electronic document. – An electronic document shall be regarded as the equivalent of an original document under the Best Evidence Rule if it is a printout or output readable by sight or other means, shown to reflect the data accurately. 3C 2003-2004 Evidence Project Vol. 1 - 46 -

SEC. 2. Copies as equivalent of the originals. – When a document is in two or more copies executed at or about the same time with identical contents, or is a counterpart produced by the same impression as the original, or from the same matrix, or by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent techniques which is accurately reproduces the original, such copies or duplicates shall be regarded as the equivalent of the original. Notwithstanding the foregoing, copies or duplicates shall not be admissible to the same extent as the original if: (a) a genuine question is raised as to the authenticity of the original; or (b) in the circumstances it would be unjust or inequitable to admit a copy in lieu of the original.

CASES: Air France vs. Carrascoso 18 SCRA 155 (1966) Best Evidence Rule FACTS: Carrascoso, bought a first class ticket to go to Rome. From Manila to Bangkok, plaintiff traveled in first class but on their stop-over in Bangkok, the Manager of the defendant airline forced the plaintiff to vacate his seat in order to make room for a “white man”, who, the Manager aleeged, had a better right to the seat. After a brief commotion wherein Carrascoso said he would leave his seat on over his “dead body,” he gave it up. The CFI decided in favor of Carrascoso , while the CA affirmed the decision but reduced the award further. During the trial, one piece of evidence that was admitted was the alleged entry by the purser employed by the defendant and testified to by the plaintiff. The alleged notebook entry, read “First class passengers was forced to go to tourist class against his will and that the captain refused to intervene”. Defendant charges that such testimony by Carrascoso is incompetent for being hearsay. It is claimed by Air France that such piece of evidence comes within the proscription of the Best Evidence rule they are claiming such entry could not have been proven by mere testimony but by presenting the notebook itself. ISSUE: Whether or not the entry in the notebook is incompetent as evidence? RULING: Yes. The subject of inquiry is not the entry but the ouster incident. Testimony on the entry does not come within the Best Evidence rule. It is admissible. Besides, from a reading of the transcript above mentioned, when the dialogue happened, the impact of the startiling occurrence was still fresh and continued to be felt. The 3C 2003-2004 Evidence Project Vol. 1 - 47 -

excitement had not as yet died down. Statements then, in this environment, are ADMISSIBLE AS PART OF THE RES GESTAE. For they grow out of “the nervous excitement and mental and physical condition of the declarant.” The utterance of the purser regarding his entry in the notebook was spontaneous, and related to the circumstances of the ouster incident. Its trustworthiness has been guaranteed. It thus escapes the operation of the hearsay rule. It forms part of the res gestae. It is not within the Best Evidence Rule as the entry was made outside the Philippines by the employee of Air France. It would have been an easy matter for petitioner to have contradicted Carrascoso’s testimony. If it were true that no entry was made the deposition of the purser could have cleared up the matter. By: Raymond Joseph Ibon Meyers vs. United States 171 F.2d 800 (1948) Best Evidence Rule FACTS: Meyers, an officer of the US army, organized a Corp. called the Aviation Electric Corp. for the manufacture of parts & accessories for airplanes & paid into its treasury $500 to cover the authorized capital stock. 224 shares went to June Ballabu and the remaining shares to David Johnson & Robert Pine. It had orders worth $20,000 from the Signal Corps of the US Army. Lamarre was made Secretary-treasurer and the 224 shares were transferred to him & he later became President. At the end of the war, there was reduced demand and led to the dissolution of the corp. The US Senate created an investigating committee to look into instances of waste, fraud, corruption, excessive profits during the war. Meyers testified (and so did Lamarre) that: 1. Meyers was not financially interested/connected with Aviation Electric Corp. 2. A Cadillac automobile was purchased for the corp. & for its use 3. the sum of $10,000, paid by means of Aviation checks for furnishing Meyer’s apartment was a “gift from Lamarre” Based on this testimony, Meyers was charged and convicted of the charge of subordination for perjury by the trial court. On appeal, he alleges that the trial court took on a bizarre procedure when it accepted the testimony of William Rogers who examined his codefendant Lamarre in the Senate investigation and also allowed the introduction of a stenographic note transcript of Lamarre’s testimony on the same hearing. This is based on the theory that the transcript itself was the best evidence of Lamarre’s testimony before the Senate and there was no need for Roger’s testimony. ISSUE: Whether or not the best evidence rule is applicable RULING: No. The best evidence rule applies only when contents of a writing are to be proved which does not obtain in the case at bar.

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In prosecution for perjured testimony given before the Senate committee, the testimony by chief counsel of the senatorial committee as to what witnesses had sworn to was not barred under the best evidence rule, and it was not unfair or prejudicial to permit transcript of testimony given before the subcommittee to be introduced after chief counsel had testified, though counsel testified early in protracted trial and transcript was introduced near its close, since both methods of proving the perjury were permissible, and prosecution could present its proof in any order it chose. Here, there was no attempt to prove the contents of a writing. The issue was what Lamarre had said, not what the transcript contained. The transcript was evidence of what he had said but it was not the only admissible evidence concerning it. The testimony of Rogers, chief counsel to the committee, was equally competent and admissible whether given before or after the transcript was received in evidence. Statements alleged to perjuries may be proved by any person who heard them, as well as, by the reporter who recorded them in shorthand. By: Raymond Joseph Ibon People vs. Tan 105 Phil. 1242 (1959) Best Evidence Rule FACTS: Pacita Gonzales and others were charged with the crime of falsification of public documents in their capacities as public officials and employees. It was alleged that they have made it appear that certain relief supplies were purchased by Gonzales for distribution to calamity victims in such quantities and at such prices and from such business establishments or persons as are made to appear in the said public documents, when in truth and in fact, no such distributions of such relief and supplies as valued and supposedly purchased by said Pacita Gonzales in the public and official documents had ever been made. The prosecution presented to a witness a booklet of receipts containing blue invoices of the Metro Drug Corporation. The booklet contained the triplicate copies, and according to said witness the original invoices were sent to the Manila office of the company, the duplicates to the customers, so that the triplicate copies remained in the booklet. The witness further testified that in preparing receipts, two carbons were used between the three sheets, so that the duplicates and the triplicates were filled out by the use of the carbons. While the witness was testifying, the trial court judge interrupted and said that the triplicates are not admissible unless it is first proven that the originals were lost and cannot be produced. Another witness was presented by the prosecution to testify. The witness testified that the original practice of keeping the original white copies no longer prevails as the originals are given to the customers. After the cross-examination of this last witness, the prosecution again went back to the identification of the triplicate invoice. At this point, the judge told the prosecutor that the originals must be produced. The prosecution filed a petition for certiorari with the Supreme Court. ISSUE:

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Whether or not triplicates formed by the use of carbon papers are admissible in evidence without accounting first for the loss of the originals. RULING: The Court said that the admissibility of duplicates or triplicates has long been a settled question. It quoted with approval the opinion of Moran, a commentator on the Rules of Court. When carbon sheets are inserted between two or more sheets of writing paper so that the writing of a contract upon the outside sheet, including the signature of the party to be charged thereby, produces a facsimile upon the sheets beneath, such signature being thus reproduced by the same stroke of the pen which made the surface or exposed the impression, all of the sheets so written on are regarded as duplicate originals and either of them may be introduced in evidence as such without accounting for the non-production of the others. By: Elon Cris C. Culangen Seiler vs. Lucas Film, Ltd. 797 F.2d 1504 (1986) Best Evidence Rule FACTS: Lee Seiler, an artist and designer of science fiction creatures and machines brought copyright infringement action against the producers and creators of the movie “The Empire Strikes Back.” Seiler claimed that creatures known as Imperial Walkers infringed his copyright on his own creatures called Garthian Striders. He contended that he created and published his Garthian Striders in 1976 and 1977 and that George Lucas copied these. Because Seiler possessed no originals of any work he contended was copied, he sought to introduce secondary evidence in the form of copies, reconstructions, and the like. He proposed to exhibit his Striders in a blown-up comparison to Lucas’ Walkers at opening statement. The district judge held an evidentiary hearing on the admissibility of the reconstructions of the Striders. Applying the best evidence rule, the court found that Seiler lost or destroyed the originals in bad faith and consequently no secondary evidence, such as the post-Empire Strikes Back reconstructions, was admissible. The court granted summary judgment to Lucas after the evidentiary hearing. Seiler appealed. ISSUE: Whether or not Seiler’s drawings constituted “writings” for purposes of the best evidence rule. RULING: Yes. The Court of Appeals affirmed the district judge. It held that Seiler’s drawings were “writings” within the meaning of Rule 1001 (1) which defined writings and records as “letters, words, or numbers, or their equivalent, set down by handwriting, typewriting, printing, Photostatting, photographing, magnetic impulse, mechanical or electronic recording, or other forms of data compilation.” According to the Court, Seiler’s drawings consist not of “letters, words or numbers” but of “their equivalent.”

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The Court said that to recognize Seiler’s works as writings does not run counter to the rule’s preoccupation with the centrality of the written word in the world of written legal relations. Comparing Seiler’s drawings with Lucas’ drawings is no different in principle than evaluating a contract and the intent behind it. Seiler’s works are “writings” that affect legal relations; their copyright ability attests to that. A creative literary work and a photograph whose contents are sought to be proved are both covered by the best evidence rule. It would be inconsistent to apply the rule to artwork which is literary or photographic but not to artwork of other forms. By: Elon Cris C. Culangen

People vs. Tandoy 192 SCRA 98 (1990) Best Evidence Rule FACTS: On May 27, 1986, detectives of the Makati Police conducted a buy-bust operation at Solchuaga St., Barangay Singkamas, Makati. The target area was a store along the said street, and detective Singayan was to pose as the buyer. He stood alone near the store waiting for any pusher to approach. Soon, three men approached him. One of them was Mario Tandoy who said: “Pare, gusto mo bang umiskor?” Singayan answered yes. The exchange was made then and there—two rolls of marijuana for one P10.00 and two P5.00 bills marked ANU (meaning Anti-Narcotics Unit). The team then moved in and arrested Tandoy. The marked money and eight foils of marijuana were found on Tandoy’s body. An information was filed against Tandoy. The RTC of Makati found him guilty of violating RA 6425. Tandoy appealed. In his appeal, Tandoy invoked the best evidence rule and questioned the admission by the trial court of the Xerox copy only of the marked P10.00 bill. ISSUE: Whether or not the Xerox copy of the marked P10.00 bill is excludible under the best evidence rule. RULING: No. The Supreme Court quoted with approval the Solicitor General’s Comment which refuted the contention of Tandoy. The best evidence rule applies only when the contents of the document are the subject of inquiry. Where the issue is only as to whether or not such document was actually executed, or exists, or in the circumstances relevant to or surrounding its execution, the best evidence rule does not apply and testimonial evidence is admissible. Since the aforesaid marked money was presented by the prosecution solely for the purpose of establishing its existence and not its contents, other substitutionary evidence, like a Xerox copy thereof, is therefore admissible without the need of accounting for the original. By: Elon Cris C. Culangen

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U.S. vs. Gregorio 17 Phil. 522 (1910) Best Evidence Rule FACTS: In a case filed by Pedro Salazar, as creditor, against Eustaquio Balistoy for the payment of a sum of money, judgment was rendered wherein the debtor was sentenced to pay to the plaintiff P275.92 with interest thereon. For the execution of the judgment, two rural properties of the debtor were attached. The date for the sale and adjudication of the attached properties to the highest bidder was set on May 27, 1908. On the 18 th of the same month, Bernardo Gregorio requested the deputy sheriff to exclude the said realty from the attachment, alleging that he was the owner of one of the properties levied upon for the reason that he had acquired it by purchase from the debtor Balistoy in 1905, prior to the filing of the complaint. Bernardo presented to the sheriff a document at the end of which appears a memorandum which states that Eustaquio Balistoy bought the land referred to in the said document from Luis Balistoy and sold it to Bernardo Gregorio. Subsequently, falsification charges were brought against Gregorio and Balistoy. The complaint for falsification alleged that the defendants simulated a conveyance of one of the attached properties in favor of Gregorio. However, the original document setting forth the memorandum was not presented. Only a copy thereof was produced in court. The trial court found the defendants guilty. They appealed. ISSUE: Whether or not in a criminal case for the falsification of a document, the original document alleged to have been falsified must be produced RULING: Yes. The Court reversed the lower court. Defendants were acquitted. In a criminal case for the falsification of a document, it is indispensable that the judges and the courts have before them the document alleged to have been simulated, counterfeited, or falsified, in order that they may find, pursuant to the evidence produced at trial, whether or not the crime of falsification was actually committed; in the absence of the original document, it is improper to conclude, with only a copy of the said original in view, that there has been a falsification of a document which was neither found nor exhibited, because, in such a case, even the existence of such original may be doubted. By: Elon Cris C. Culangen Fiscal of Pampanga vs. Reyes 55 Phil 905 (1931) Best Evidence Rule FACTS: The fiscal of Pampanga filed two informations for libel against Andres Guevarra. The informations alleged that Guevarra, with malicious intent, published on page 9 of the weekly paper Ing Magumasid, a squib in verse, of which a translation into Spanish was included 3C 2003-2004 Evidence Project Vol. 1 - 52 -

therein, intended to impeach the honesty, integrity, and reputation of Clemente Dayrit and of Mariano Nepomuceno. The fiscal attempted to present as evidence for the prosecution copies of the Ing Magumasid containing the libelous articles with the innuendo, another article in the vernacular published in the same weekly, and its translation into Spanish. Defendant Guevarra’s counsel objected to this evidence, which objection was sustained by the trial court. The fiscal filed a petition for a writ of mandamus with the Supreme Court to compel the lower court to admit the copies of the weekly as evidence for the prosecution. The petitioner fiscal contended that the exhibits in question are the best evidence of the libel, the subject matter of the information, and should be admitted. Respondents maintained that since the libelous article was not quoted in the information, said evidence cannot be admitted without amending the information. ISSUE: Whether or not the copies of the weekly are admissible. RULING: Yes. The general rules regarding the admissibility of evidence are applicable to cases of libel or slander. This being so, the rule of procedure which requires the production of the best evidence is applicable to the present case. The copies of the weekly where the libelous article was published, and its translation, constitute the best evidence of the libel charged. The newspaper itself is the best evidence of an article published in it. By: Elon Cris C. Culangen Vda. de Corpus vs. Brabangco 59 O.G. 8262 (1963) Best Evidence Rule FACTS: Defendant Tiburcia Brabangco is the owner of a certain parcel of land. Plaintiffs, the surviving widow and children of the deceased German Corpus alleges that the land was sold by defendant Tiburcia Brabangco to their father German Corpus for and in consideration of P450 of which P300 was paid right upon the execution of the Deed of sale in due form witnessed by Pablo Albeza and Bonifacio Villareal (now deceased) and acknowledged be defendant Brabangco before notary Public Jose Tirador (also deceased). At the same time, Plaintiffs Corpus allege that their predecessor in interest was and is in possession of said lands up to his death until Defendants with the aid and protection of policemen entered the premises and got bamboos and corn. Defendants, on the other hand, allege that a sale never took place. Defendants’ answer avers “that they simply accommodated and allowed the Plaintiffs Corpus to build their evacuation cottage when Japanese forces occupied the Philippines. Plaintiffs filed a case against the defendants. With reference to the deed of sale from which the plaintiffs’ case draw its cause of action was said to be lost during the war. The trial court ruled in favor of the plaintiffs and upheld the sale. The defendants appealed claiming that the sale never took place since the document of sale could not be produced and the plaintiff has failed to establish the contents of the deed of sale as required by Rule 130, Sec. 3. 3C 2003-2004 Evidence Project Vol. 1 - 53 -

ISSUES (1) Whether or not the Plaintiffs have sufficiently proven the existence, due execution and subsequent loss of the Deed of sale. (2) Whether or not the plaintiffs have adduced sufficient evidence to prove the contents of the loss deed of sale? RULING: Yes. The plaintiff declared that the original deed of sale signed by defendant Tiburcia was lost during the war. The record of the present case will bear that its existence was convincingly proven not only by the testimony of Heraclea Vda. De Corpus, the surviving widow, and by the environmental facts disclosed by the evidence, but also by the disinterested testimony of Pablo Albeza. After proper proof of the due execution & delivery of the instrument & its loss or destruction, oral evidence may be given of its contents by any person who signed the document, or who read it. As to the second issue, it is not necessary, in order to admit evidence of the contents of a lost instrument, that the witness should be able to testify with verbal accuracy to its contents; it is sufficient if they are able to state it in substance. Witnesses cannot be expected to recite the content word for word. It is enough if intelligent witnesses have read the paper & can state substantially its contents & import with reasonable accuracy. Thus, it was held sufficient if the witness can recollect and testify to facts showing the presence of essential elements of a contract, namely; consent, subject matter, consideration and form in certain instances. In the case at bar, the evidence adduced by the plaintiffs are more than enough to satisfy the statutory requirements as to execution and subsequent loss of the deed of sale as well as to its contents. By: Abigail Joy D. Gamboa Compania Maritima vs. Allied Free Workers Union 77 SCRA 24 (1977) Best Evidence Rule FACTS: Plaintiff-appellee Compania Maritima (company) and the Defendant- appellant Allied Free Workers Union (union) entered into a written contract whereby the union will perform arrastre and stevedoring work for the company’s vessels, effective for 1 month, renewable upon agreement. The company could terminate the contract if the union failed to render proper service. The union agreed that the company would not pay for the loading, unloading and deliveries of cargoes and that these would be paid by the owners and consignees of the cargoes as has been the practice in the port of Iligan. However, shippers and consignees refused to pay the union for the stevedoring services because the bill of lading provided that the unloading of the cargo was at the ship owner’s expense. The company, on the other hand, refused to pay for the stevedoring services because this was provided for in the contract between the company and the union. This became the root of all the problems between the two parties. Despite of the fact that the set-up was disadvantageous on the Union, it did not terminate the contract because its members were in 3C 2003-2004 Evidence Project Vol. 1 - 54 -

dire need of work, which although not adequately compensated, was preferable to having no work at all. Thus, upon the expiration of the one month period, the contract was verbally renewed. Then, the union sent the company a letter requesting that it be recognized as the exclusive bargaining unit. The company ignored the demand. The union then filed with the CIR a petition that it be certified as the sole collective bargaining unit. The company then terminated the contract. The union filed an Unfair Labor Practice case. Then, the company entered into a new stevedoring contract with Iligan Stevedoring. On the following day, the Union members picketed the wharf and prevented the Iligan Stevedoring from performing arrastre and stevedoring work. The company sued the union. Thereafter, a legal battle ensued with the trial court in the end ruling in favor of the company. Also, the Trial court awarded actual damages, amounting to P450, 000 and other damages on the basis of the auditor’s reports, Exhibits A to I. Plaintiff Company to bolster its case presented Teves, the company’s manager who testified in its favor. One of the pieces of evidence he presented was a statement showing the alleged cost of 3 forklifts, pallet boards, wire rope slings and tarpaulins in the sum of P27, 215. (The company alleges that it was forced to purchase the equipment in order to improve the arrastre & stevedoring services.) He claims that the damages to the company by reason of depreciation of the said equipment amounted to P38, 385 or more than the cost thereof. Also presented was Accountant Demetrio Jayme who was a personal friend of Teves and company’s branch manager in Ozamis. His testimony is basically that the Company due to the act of Union members, the company suffered losses as shown in the books of the as to unrealized freight and passenger revenue. The Company also claims damages on lost cargoes and freight as set forth by Salvador Magante, the company’s chief clerk in Iligan City in his statement. Magante did not testify on his statement, instead it was Jayme who testified on behalf of Magante. ISSUE: Whether the Trial Court erred in awarding to the plaintiff company actual damages, moral damages, and attorneys fees on the ground that the Auditors report on which they were based were hearsay? RULING: The company argues that the accountant’s (auditor’s) reports are admissible in evidence because of the rule that “when the original consists of numerous accounts or other documents which cannot be examined in court without great loss of time and the fact sought to be established from them is only the general result of the whole, the original writings need not be produced. That rule cannot be applied in this case because the voluminous character of the records on which the accountant’s reports were based was not duly established. Moreover, in order for said rule to be applied, the records and accounts should be made accessible to the adverse party so that the correctness of the summary may be tested on cross-examination. What applies is the general rule “that an audit made by or the testimony of a private auditor is inadmissible in evidence as proof of the original records, books of accounts, reports or the like. The company failed to make a preliminary showing as to the difficulty or impossibility attending the production of the records in court and their examination and analysis as evidence by the court 3C 2003-2004 Evidence Project Vol. 1 - 55 -

As to the statement presented by Teves, SC said that the best evidence on the cost of the equipment would have been the sales invoice instead of his mere oral testimony of. Also, he should have produced the sales invoice. The same is true with regard to Jayme’s estimates as recoverable damages. The pertinent records of the company should have been produced in Court. As to Magante’s report, Jayme was not competent to take his place since the statement was prepared by Magante and not by Jayme. More appropriate still, the documents and records on which the statement was based should have been presented as evidence or at least brought to the Court for examination. Lower court’s award of damages is reversed and set aside. By: Abigail Joy D. Gamboa Villa Rey Transit vs. Ferrer 25 SCRA 845 (1968) Best Evidence Rule FACTS: Jose Villarama was an operator of a bus company (Villa Rey Transit) pursuant to CPCs granted him by the PSC. In 1959, he sold 2 CPCs to Pangasinan Transpo. Co. (Pantranco) with the condition that Villarama shall not, for 10 years, apply for any TPU service competing with buyer. 3 months later, Villa Rey Transit Inc. (VRTI) was formed wherein the wife and relatives of Jose Villarama were the stockholders and the incorporators. The Corporation. then bought 5 CPCs from Valentin Fernando. The Sheriff levied 2 out of the 5 CPCs pursuant to a writ of execution in favor of Eusebio Ferrer, Fernando’s judgment creditor. The 2 CPCs were sold at auction with Ferrer as highest bidder. Ferrer then sold these 2 CPCs to Pantranco . Thus, VRTI filed a complaint for annulment of the sheriff’s sale of the CPCs in favor of Ferrer and its subsequent sale to Pantranco. The CFI declared these sales as null and void. Hence, this appeal. It is the contention of Pantranco that Jose Villarama and the Corporation were one and the same. Therefore, the non competition clause embodied in the deed of sale entered into by Jose Villarama is also binding to the Corporation. The evidence presented by Pantanco to prove its contention is Photostatic copies of ledger entries and vouchers. Jose Villarama has assailed the admissibility of these exhibits, contending that no evidentiary value whatsoever should be given to them since “they were merely photostatic copies of the originals, the best evidence being the originals themselves”. ISSUE: Whether or not photostatic copies of ledger entries and vouchers (Exh. 6 to 19 and 22) showing that Villarama had co-mingled his personal funds and transactions with those made in the name of VRTI are admissible in evidence? RULING: Yes. Exhibits 6 to 19 and Exhibit 22 which are photostatic copies of the ledger entries and vouchers showing that Villarama had co- mingled his personal funds and transactions with those made in the name of the Corporation are very illuminating evidence. The requisites for the admissibility of secondary evidence when the original is in the custody of the adverse party are: a.) opponent’s possession of the original; b.) reasonable notice to opponent to produce the 3C 2003-2004 Evidence Project Vol. 1 - 56 -

original; c.) satisfactory proof of its existence; d.) failure or refusal of opponent to produce the original in court. Said requisites have been complied with. Villarama has practically admitted the 2nd and th 4 . As to the 3rd, he admitted their previous existence in the files of VRTI and had even seen some of them. As to the 1st, he said that the originals were missing and that VRTI was no longer in possession of the same. However, it is not necessary for a party seeking to introduce secondary evidence to show that the original is in the actual possession of the adversary. It is enough that the circumstances are such as to indicate that the writing is in his possession or under his control. Neither is it required that the party entitled to the custody of the instrument, on being notified to produce it, admit having it in his possession. Secondary evidence is admissible where he denied having it in his possession. The party calling for such evidence may introduce a copy thereof as in the case of loss because among the exceptions to the best evidence rule is “when the original has been lost, destroyed or cannot be produced in court.” The original of the vouchers must be deemed to have been lost as even VRTI admit such loss. Thus, said evidence, though secondary, are admissible. By: Abigail Joy D. Gamboa Michael & Co. vs. Enriquez 33 Phil. 87 (1915) Best Evidence Rule FACTS: This is an appeal from a judgment of the CFI of Cebu dismissing the action after trial on the ground that the plaintiff did not prove facts sufficient to constitute a cause of action. This action is based on a sale with right to repurchase made by Enriquez in favor of E. Michael and E. Michael & Co.,sociedad en comandita, of which Michael and Company (MCI) claims to be a successor by reason of an instrument duly executed and deliverd by the former to the latter transferring property, business and assets of every kind including the land which is the subject of this litigation. It is alleged that the period to repurchase had expired thus consolidating ownership in MCI. During the trial, MCI sought to prove the execution and delivery of the conveyance transferring to it the land described in the pacto de retro. The TC prevented MCI from proving that fact. MCI also attempted to prove the fact that the instrument so executed and delivered was lost, it being his purpose to lay the basis for the introduction of secondary evidence as to its contents. The TC also prevented appellant from proving that. While the efforts of MCI’s counsel to prove the execution and delivery of the document were at times rather informal and objections to such questions were properly sustained, at others the questions put for the purpose of proving those facts were well framed and answers should have been allowed to them; but, even in such cases, the TC also sustained & objections to the questions and the evidence sought to be adduced was excluded. ISSUE:

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Whether or not the TC erred in preventing MCI from proving existence and the delivery of the conveyance transferring to it the land in question? RULING: Trial courts do well in refusing at all times to permit the introduction of incompetent evidence and particularly secondary evidence of the contents of written instruments unless the facts required by the Code of Civil Procedure as the conditions precedent for such evidence are clearly shown to exist. Section 321 of the Code provides: “An original writing must be produced and proved, except as otherwise provided in this Act. If it has been lost, proof of the loss must first be made before evidence can be given of its contents. Upon such proof being made, together with proof of the due execution of the writing, its contents may be proved by a copy or by a recital of its contents in some authentic document or by the recollection of a witness.” As will be seen in this section, the writing itself must be produced unless it has been lost or destroyed in which case, before its contents may be proved by other evidence, it must be shown by the party offering secondary evidence (1) that the document was duly executed and delivered, where delivery is necessary (2) that it has been lost or destroyed. The execution or delivery of the document maybe established by the person or persons, who executed it, by the person before whom its execution was acknowledged, or by any person who was present and saw it executed and delivered or who, after its execution and delivery, saw it and recognized the signatures; or by a person to whom the parties to the instruments have previously confessed the execution thereof. The destruction of the instrument may be proved by any person knowing the fact. The loss may be shown by any person who knew the fact of its loss, or by anyone who has made, in the judgment of the court, a sufficient examination in the place or places where the document or pares of similar character are usually kept by the person in whose custody the document lost was, and has been unable to find it; or who has made any other investigation which is sufficient to satisfy the Court that the document was indeed lost. If it appears , on an attempt to prove the loss , that the document is in fact in existence , then the proof of loss or destruction fails and secondary evidence is inadmissible unless section 322 of the Civil code of Procedure should be applicable. After proper proof of the due execution and delivery and its loss or destruction, oral evidence maybe given of its contents by any person who signed the document, or who read it, or heard it read knowing, or it being proved from other sources, that the document so read was the one in question. Such evidence may also be given by any person who was present when the contents of the document was being talked over between the parties thereto to such an extent as to give him reasonably full information as to its contents; or the contents maybe proved by any person to whom the parties to the instrument have confessed or stated the contents thereof; or by a copy thereof; or by a recital of its contents in some authentic document. By: Abigail Joy D. Gamboa De Vera vs. Aguilar 218 SCRA 602 (1983) Best Evidence Rule

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FACTS: Petitioners (all surnamed De Vera) and respondent Leona (married to Mariano Aguilar) are the children and heirs of the late Marcosa Bernabe. Marcosa Bernabe owned the disputed parcel of land. Such property was mortgaged by petitioners to Bordador. When the mortgage had matured, the respondents Spouses Aguilar redeemed the property, and in turn Bernabe sold the same to them as evidenced by a deed of absolute sale. Then, an OCT was issued in their name. Three years later, the petitioners wrote to the respondents claiming that as children of Bernabe, they were co-owners of the property and demanded partition thereof. The petitioners also claimed that the respondents had resold the property to Bernabe. Petitioners De Vera filed a suit for reconveyance of the lot. The TC rendered its decision ordering the reconveyance of the lot. In ruling for the petitioners de Vera, the TC admitted, over the objection of the respondents Aguilar, a Xerox copy of an alleged deed of sale executed by respondents in favor of Bernabe. On appeal to the CA, the decision was reversed. The CA found that the loss or destruction of the original deed of sale has not been duly proven by petitioners, so secondary evidence (Xerox copy of deed of sale) is inadmissible. Hence, this petition for review on certiorari. RULING: Secondary evidence is admissible when the original documents were actually lost or destroyed. But prior to the introduction of such secondary evidence, the proponent must establish the former existence of the instrument. The correct order of proof is as follows: existence, execution, loss, contents although this order may be changed if necessary in the discretion of the court. The sufficiency of proof for the admission of an alleged lost deed lies within the judicial discretion of the TC. In the case at bar, the TC merely ruled in the existence and dye execution of the alleged deed of sale. The existence of the alleged deed was proved by the Xerox copy. In establishing the execution of a document, the same may be accomplished by the person(s) who executed it; by the person before whom its execution was acknowledged; or by any person who was present and saw it executed or who, after its execution saw it and recognized the signatures, or by a person to whom the parties had confessed the execution thereof. The petitioners have sufficiently established the due execution of the alleged deed through the testimony of the notary public. The loss or destruction of the deed may be proved by any person who knew the fact of its loss or by anyone who had made, in the judgment of the court, a sufficient examination in the place(s) where papers of similar character are usually kept by the person in whose custody the document lost was, and has been unable to find it; or who has made any other investigation which is sufficient to satisfy the court that the instrument is indeed lost. However, all duplicates must be accounted for before using copies. For since all the duplicates are parts of the writing itself to be proved, no excuse for non-production of the writing itself can be regarded as established until it appears that all of its parts are unavailable. In the case at bar, the notary public testified that the alleged deed of sale has about 4 or 5 original copies. Hence, all these must be accounted for before secondary evidence can be given of any one. These petitioners failed to do. Decision affirmed. By: Abigail Joy D. Gamboa 3C 2003-2004 Evidence Project Vol. 1 - 59 -

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