evidence midterm discussion
TRANSCRIPT
-
8/3/2019 Evidence Midterm Discussion
1/23
EH 403 || SY 2011-2012
devie.j.bacomo Page 1
Evidence January 17, 2012
Coverage:
Object evidence- rules on DNA
Best Evidence Rule- Electronic, Parol Evide, Cases
OBJECT EVIDENCE
Evidence according to form:
1. Object Evidence evidence address to the senses, and for this purposethis evidence maybe exhibited or viewed or examined by court
Purpose: For the court to see, touch, smell; Covers all the realms of
human senses.
In a case for damages against Vicky Belo, and you want to prove to the
court the extent or negligence of the defendant, you may exhibit your
affected portion of human body, for the court to appreciate the extent,
nature, and condition of the injury.
Or in an action for copyright infringement, for copying for his
original musical work, and to prove your allegation, you may present
and play in the open court the music. This is exhibited to the senses
of the court using sense of hearing.
Or in the crime of murder bec of the poisonous food that the restaurant
served, you may present to the court a portion of the food, and let the
court taste it. If the court dies, hahaha. It is for the court to see
to appreciate the evidence using the various senses.
How do you make object evidence admissible?
There requisites:
a. Object must be relevant must be something which has a relation tothe fact in issue as to induce the probability or improbability or
existence or inexistence of fact
b. Competent must be properly authenticatedc.must be authenticatedby a competent witness
What is authentication? Depends on the kind of object that is
subject to authentication.
2 forms of object evidence: Real and demonstrative, and both
requires authentication for admissibility, but authentication
process varies for the two.
A. O bject Real Evidence refers to the real thing or the very
subject of the case. Ex. Murder weapon (the very weapon involve in
the case)
-
8/3/2019 Evidence Midterm Discussion
2/23
EH 403 || SY 2011-2012
devie.j.bacomo Page 2
- refers to the process of establishing in court that the object isthe very object that it is claimed to be.
- That indeed the kitchen knife, is the every kitchen knife or isthe one used in the crime, for example. Or the torn underwear is
the very thing worn by the victim during the rape. Or you present
a gold watch, and you claim that it is the very thing subject of
theft.
- For purposes of authentication, classifications of real object:o Unique object refers to the object that is
distinguishable from the rest of the object belonging to
the same class. Typical example is the serial number of the
handgun. Without the serial number, it will just simply
look like the other handguns belonging to a particular
class.
o Non-unique but made unique typical ex is a kitchen knife,like a butcher knife. The latter simply looks like other
butcher knife, but it can be made unique by ideally putting
some distinguishable marks on the knife. This mark renders
an otherwise non-unique object distinguishable from the
rest of the object of the same class
o Non-unique example drugs Recall when the object is unique, to authenticate,
you present a witness who has personal knowledge that
this object presented is the very object used in the
killing recovered from the crime scene.
If the same is testified by the witness as the veryobject used in the crime, no problem; The problem
often arises when two or more persons happen to have
taken in possession of the non-unique object, such asdrugs, from the time it is recovered and to the time
it is presented in court. Then the chain of custody
comes in to play.
Chain of custody Sec 21, RA presupposes linkconnected to each other. These chains refer to the
persons who have taken in possession at the time it
is recovered and presented it into the court. All of
these chains must account for the handling of the
object while the object was still in their
possession. Purpose, is so that its integrity and
evidentiary nature of the object is preserved, that
this is the very same object used in the crime.
GR: It is not required that all chain
must take account.
Exc: when the object is non-unique like
drugs all links must take into account,
or else there is a non-compliance of
chain of custody
-
8/3/2019 Evidence Midterm Discussion
3/23
EH 403 || SY 2011-2012
devie.j.bacomo Page 3
Chain of custody recorded authorized
movement from the time the drugs is
recovered, confiscated, up to the time it
is examined to the laboratory, up to the
time it is kept for custody, and up to
the time it is presented in court. All of
these links must be accounted.
How to authenticate non-unique objects in
light of the rule of chain of custody?
Suppose there are three persons who
happened to take possession of the
illegal drugs - the apprehending officer,
forensic examiner, and custodian. So how
does authentication be done in this case?
- FIRST: present the apprehending
officer, and establish the circumstances
of the seizure (when, place, persons from
whom drugs are seized, the circumstances
leading to the seizure), then establish
that apprehending officer did the
physical inventory and photographs, and
that it turned-over to the forensic
examiner
-> Physical inventory and taking
photographs - must be in the presence of
accused, or his counsel/representative
AND representative from DOJ, AND fromMedia, AND any elected official. These
witnesses must sign the inventory and
must be given copy thereof; inventory is
a written inventory
-> Where should the inventory and
taking of photograph be made?
PP vs Sanchez:
SC ruled that the venue of the required
inventory and photograph, depends on the
nature of the seizure, such that if it isseized covered by a search warrant, it
should be made right in the very place
where the Search Warrant is served. But
if seized without the warrant, the venue
should EITHER be in the nearest police
station or the office of the apprehending
team, whichever is practicable. Although
-
8/3/2019 Evidence Midterm Discussion
4/23
EH 403 || SY 2011-2012
devie.j.bacomo Page 4
there is nothing that prevents the
apprehending team to conduct the
inventory and photograph in the very
place that it is seized.
-> the literal rule does not
require a photograph of the witness, only
the seized illegal drugs. But in many
cases, police went beyond the
requirement.
-supposed the inventory and photograph
taking is complied, then you will now let
your witness (apprehending officer)
testify as to precautionary measures he
undertook while he is in possession,
purpose of which is to establish that
there was no tampering, contamination,
substituted, etc, while in possession of
the seized items; that no other person
had access to the evidence.
-after that, you let the witness testify
as to who is the next custodian, how he
delivered it to the custodian. To
authenticate this one, let your witness
testify that he turned over this to the
next custodian and such transmission
shall be documented. There must be a
FORMAL TRANSMITTAL COMMUNICATIO N LETTER,
signed by him and the next custodian. Ifall these facts are established by your
apprehending officer, then you have the
proper accounting of the handling of the
evidence insofar of your first witness in
concerned.
-NEXT: call to the witness stand the next
custodian, as to how he got the
possession of the illegal drugs, the
time, place, with all the corresponding
documentation. Including the precautions
and procedures to ensure that notampering, contamination, substitution
was made while in possession. These
processes of authentication shall be made
until your last custodian; in order to
present or show to the court that the
seized drug is the very same evidence
used in the crime. So that the integrity
-
8/3/2019 Evidence Midterm Discussion
5/23
EH 403 || SY 2011-2012
devie.j.bacomo Page 5
and the evidentiary value of the evidence
is deemed preserved.
-> What is the effect of failure to
comply with custody requirements, because
one of the links fails? Take note under
prevailing jurisprudence, SC said that
failure to comply the chain of custody
does not render the seizure of drugs
illegal, and thus does not render the
drugs seized inadmissible as evidence.
What is the effect is that when there is
failure of chain of custody, then there
is deemed a failure on the part of the
prosecution to preserve the corpus
delicti.
Corpus delicti is establishing the
identity of the seized drug. The
prosecution must establish proof beyond
reasonable doubt that the seized drug is
the corpus delicti, such as there is no
cloud or doubt as to the identity of the
seized item. Failure to prove the corpus
delicti, is failure to prove that the
crime has been committed. Failure to
comply the authentication as to the chain
of custody, does not affect
admissibility; it only affects the WEIGH
and SUFFICIENCY. CHAIN OF CUSTODY HAS
NOTHING T
ODOWITH THE ADMISSI
BILTY.
->AT WHAT STAGE THAT THE WITNESSES
(DOJ, media, elected official) BE
PRESENT? It is enough that these
witnesses are present DURING THE
INVENTORY, they are not required to be
present at the start of the seizure or
after the inventory. Because, they have
nothing to do with the admissibility of
the evidence, and they are even not
required during the search and seizure
(bec in search and seizure, only the
presence of the accused or his family isrequired.).
-> Can the accused file a Motion to
Suppress illegally seized evidence on the
ground that the law enforcement officer
fail to comply the chain of custody
requirement? Can he object with the
admissibility? In criminal procedure,
-
8/3/2019 Evidence Midterm Discussion
6/23
EH 403 || SY 2011-2012
devie.j.bacomo Page 6
there are remedies provided to the
accused like Motion to Suppress (filed
even before trial) on the ground that it
is a fruit of a poisonous tree, or if
during the trial after the formal offer
of evidence is made the accused may
OBJECT to its admissibility. But these
grounds are no longer available if the
ground is non compliance of chain of
custody. Because Chain of custody has
nothing to do with admissibility.
d.must be formally offered
B. DEMO NSTRATIVE EVIDENCE not the real evidence, but simply the
substitute or replica, it is a representative of the real; but still needsauthentication
Ex. Photograph of the kitchen knife, maps, sketch, motion pictures,
scientific demonstration/test
Recall: Real object evidence Issue to be addressed for
authentication: Is the evidence now presented in court the very thing used
in the crime? If in answer is affirmative, then there is proper
authentication.
Demonstrative Evidence Issue to be addressed for
authentication: Does the evidence accurately depict the real
object it seeks to represent?
How do you authenticate a photograph as demonstrative evidence?
Witness does not need to have a personal knowledge; it is enough
that he is familiar with place, persons, in the picture.
US VS TATUM: Falsification of check.
SC:It is not required that the photograph as demonstrative evidence
must be authenticated by the one who took the photograph, it is
enough that he is familiar with the event, place, persons, in the
photograph.
SISON CASE:
SC held that it is not required to present the photographer. It is
enough that the person is familiar.
How about scientific evidence?
-
8/3/2019 Evidence Midterm Discussion
7/23
EH 403 || SY 2011-2012
devie.j.bacomo Page 7
LIE DETECTOR TEST/POLYGRAPH - premised that when the person lies, theres
some physiological changes; not acceptable as admissible evidence in our
jurisdiction
CASE of CARPO: Lie detector is not yet accepted as a
reliable means of ascertaining truth; not reliable, thus
inadmissible.
PARAFFIN TEST to test presence of nitrates to know whether a person has
fired a gun; not conclusive as to whether the person has fired or did not
fired a firearm, it is only corroborative.
In a number of cases, SC ruled, that while it is not
conclusive, it may serve as corroborating evidence. It is not
conclusive because when it resulted to positive, meaning presence
of nitrates is determined; this does not conclusively proved that
the one whose nitrates are found has discharged a firearm. It
only shows presence of nitrates, because there are several
sources of nitrates, not only firearm, like pharmaceuticalproducts, fireworks, tobacco, leguminous plants, etc. If result
is negative, it also does not conclusively prove that a person
did not fire a firearm. Because the person may had washed his
hands before the paraffin test is conducted, and there are other
factors.
DNA TEST in the Phil, it is relatively new., and is adopted in our
jurisdiction. Premised on the truth, that no two persons have the same DNA
profile except identical twins. It applies to any proceedings civil,
criminal, administrative.
TIJING VS CA:
This the first time that the SC made a formal declaration
welcoming DNA Test as an admissible evidence. This involves the
case of habeas corpus, to recover the custody of the child.
SC resolved the issue by using the conventional method of
physical comparison. What is important in this case is that SC
made a formal declaration that in future cases, courts are
enjoined to admit DNA Test.
PP vs VALLEJO:
SC considered the result of DNA test in the resolution ofthe case. It was established that the vaginal swabs taken from
the victim matched with the DNA profile of the accused. So the
accused was convicted.
Instances when DNA may be resorted:
a. before the commencement of any action or procedure
-
8/3/2019 Evidence Midterm Discussion
8/23
EH 403 || SY 2011-2012
devie.j.bacomo Page 8
By whom? By any person, or party including law enforcement
agency. NO COURT ORDER is required, obviously because there is
still no action commenced.
b. During the pendency of the suit of proceedingBy
w
hom?REQUIRES COURT
ORDER, because theres already the case.
The order directing the conduct of DNA maybe issued by the COURT
MOTO PROPRIO, or UPON MOTION OF ANY PERSON HAVING LEGAL INTEREST
IN THE LITIGATION.
The order must be issued only UPON NOTICE AND HEARING of the
PARTY. THE ORDER cannot be subject of appeal. The remedy is Rule
65, petition of certiorari, but the mere filing of petition of
certiorari does not stay the execution of the order.
c. Post DNA TESTBy whom? By PROSECUTION. Here theres already a conviction, and
yet the prosecution may initiate the conduct of DNA test, when
the prosecution believes that the DNA Test result might alter the
judgment.
BY THE CONVICT himself. Applies when the convict has
been convicted by FINAL and EXECUTORY JUDGMENT. Final in the
sense that there is no appeal, and final and executory.
Conversely, it cannot be resorted to if the convict has fully
served the sentence. This is actually intended as a last chance
of the convicted to get a reversal judgment or to his acquittal.
What is the effect if the DNA test is favorable to accused?
The prosecution can file a petition for habeas corpus (SC, CA,court of origin) which will reverse the final and executor order,
meaning, acquit the accused and order his released.
The court is duty bound to preserve DNA evidence, and shall
direct the appropriate agency to preserve DNA evidence.
-to preserve the DNA evidence while the case is on trial, or
until the convict has fully served his sentence.
What is the effect if the DNA specimen is lost? Court is
mandatorily to preserve the evidence. But if its lost, in the
case of HUBERT WEBB case, one of the grounds of webb to cause hisacquittal is the failure of the prosecution to preserve the DNA
specimen. SC disagreed with him. Citing Arizona case, due process
does not require the state to preserve the DNA evidence, unless
the defense can prove that there is bad faith. Because during the
time that webb moved for the conduct of DNA test and the trial
court denied the motion, there was no rule yet in our
jurisdiction on DNA evidence. As such, it follows that there was
-
8/3/2019 Evidence Midterm Discussion
9/23
EH 403 || SY 2011-2012
devie.j.bacomo Page 9
no obligation on the part of the state to preserve the specimen,
and Webb did not pursue the denial of trial court to the
appellate court. But as to the prevailing ruling, lost of
specimen by the prosecution does not amount to acquittal, unless
there is bad faith.
Evidentiary Value of DNA Test in relation to Paternity:
A DNA Test may yield to negative (specimen does not match
with the DNA profile of the putative father), or positive (there
is likelihood that the putative father is the real father).
Rule if the result ispositive:
If the probability is less than 99.9%, then this DNA result is a
corroborative evidence of paternity, meaning, it is not enough to
prove paternity, it is just mere additional evidence. But if the
value of probability of paternity is 99.9% or more, such result
creates a disputable presumption of paternity. Meaning it is
sufficient to prove paternity unless overcome by contrary
evidence, and whoever denies paternity should prove otherwise.
If the result is negative, this is conclusive as to NONPATERNITY
that the child is not the child of the putative father, and no
amount of evidence is allowed to prove otherwise.
January 20, 2012
Object address to the senses of the court
Documentary Evidence refers to any writing or material, containing words,letters, figures, number, symbols, or other modes of expression
-does concern itself on which the modes of written
expression is or are found
-simply refers to paper-based material; refers to any
materials so long as it contains letters, etc.
-the operative fact that made a writing a documentary
evidence is when these writing or material are offered as
proof of the contents of that writing or material, so that
if they are offered as not to prove its contents, then it
is not a documentary evidence but an object
-thus, it is all about the purpose of which that
evidence is presented
-so dont be surprised that your encyclopedia can be
offered either as object (when to prove its existence;
because it is not presented to prove its contents) or
-
8/3/2019 Evidence Midterm Discussion
10/23
EH 403 || SY 2011-2012
devie.j.bacomo Page 10
documentary (when to prove its contents); in the same
manner that a body, normally it is offered as object; but
it is not unlikely that the body can also be presented as a
documentary evidence.
- so it is about the purpose
The best evidence rule is a rule of exclusion; as such it precludes the
admission of certain evidence.
BEST EVIDENCE RULE when the subject of inquiry is the contents of a
document, no evidence shall be admissible other than the original document
itself as proof of its contents.
- The only admissible evidence is the original itself- Because it presupposes a dispute over the contents, the question
to be answered is this: WHAT DOES THE DOCUMENT SAY? SHOW?
CONTAIN?
- How?To prove what the document, says, states or contains, thenyou must present the original document; it cannot be proved by a
photocopy or a testimony of a witness, so present the document
itself, because its content is the subject of inquiry
WHEN DO THE CONTENTS OF A DOCUMENT, SUBJECT OF INQUIRY OR AN ISSUE?
Illustrated in the case of Consolidated bank vs del monte motorworks.
- Subject is the contents.- So we need to emphasize what is an original document in the light
of the evidence rule.
CONSOLIDATED vs Del MONTE:
A photocopy of the promissory note was presented. The borrowers
interposed as their defense, that there was no valuable consideration for the
issuance of the promissory note. On the part of the other defendant
contentions are no valuable consideration, and second that the promissory
notes were signed in their capacity as official.
Defendants raised the issue as to the admissibility of the photocopy of
the PN, that it should not have been admitted in the light of the Best
evidence rule, and that the original must be presented.
SC: Best Ev applies only when the subject of the inquiry is the content
of the document, thus, the parties must have a dispute as to the wordings,the precise terms or tenor in the document. SC furthered that the parties did
not dispute over the precise wordings of the PN, the only issue interposed by
the parties is that there is no valuable consideration and the signing was on
their official capacity. Meaning, there was an implied admission that the
parties agreed as to the tenor of the PN. Thus, Best Evidence rule does not
apply, and the photocopies are admissible. The parties even accepted the due
execution of the PN. So there must be an issue as to the precise wording or
figures.
-
8/3/2019 Evidence Midterm Discussion
11/23
EH 403 || SY 2011-2012
devie.j.bacomo Page 11
WHAT ISANORIGINAL DOCUMENT INTHECONTEXTOFTHE BESTEV RULE?
1. An original document is one the contents of which are the subject ofthe inquiry - therefore, original document does not refer to the
document first produced; not about chronology or order ofexistence/production. What is material is so long as the document,
whether first, second, or third production, the contents of which are
the subject of inquiry. In other words a photocopy can be an original
document if the content thereof is the subject of the inquiry.
-In the case of falsification of a photocopy, the photocopy is the
original copy in the context of the best evidence rule.
2. When the document is executed and produced on or about the same time- There are documents that are produced severally, on or about the
same time, and are identical.
- Just like documents produced using CARBON placed in betweencopies, all these copies are considered original. Thus, it doesnot follow that the first copy is the only original. The
duplicate, triplicate and so on are also original copies.
HON. BIENVINIDO TAN CASE:
The prosecution to prove its case of falsification
presented the triplicate copy of certain receipts, attached to
the stub. This was objected to on the ground of Best Ev rule. The
defense said that prosecution must have presented the first copy.
SC: Triplicate copy is as original as the first copy,
because it falls under the second definition of an original
document.
3. When an entry is repeated, one copied from another at or the same timeof transaction, all copies are considered original.
- The ENTRY is the original document in this transaction.- All the entries are considered original, and any of these entries
maybe presented in the court because all are originals.
- Example, suppose you have a sari-sari store. You require a threerecord book one for you, the other for your husband, and the
third is for the BIR. The entries daily entered in the record
books are all originals, and any of these maybe presented in
court when the issue of the dispute are the contents of these
record books. Any evidence other than three records are
inadmissible under the best evidence rule.
INSTANCES when Best Evidence Rule does not apply:
1. When the document is offered to prove a purpose other than the content such as the purpose is its existence, illustrated in the case of PP
vs TANDOY.
PP. VS TANDOY:
-
8/3/2019 Evidence Midterm Discussion
12/23
EH 403 || SY 2011-2012
devie.j.bacomo Page 12
Photocopy of the marked money was presented instead of the bill itself,
by the prosecution. This was objected to in the light of the BEST EV
Rule.
SC: there is no issue as to the content of the bill, the issue was WON
the buy bust operation and the sale or the existence of the
consideration of the transaction, which is the money, exist. Thus itwas enough to present the photocopy of the bill, even if the one
offered is just a TESTIMONY of a WITNESS, because the BEST EV RULE does
not apply here. Here the issue is whether the photocopy admissible? YES
and the next issue is that WHETHER this photocopy is enough to prove
the presence of consideration. So here, it dwells with sufficiency.
ARCEO CASE:
During the trial the prosecution presented a photocopy of the
check. Arceo said that the photocopy should not have been admitted
under the Best ev rule.
SC: BEST EV RULE does not apply. Bec the issue is whether a check
has been issued, and that it bounced. It was enough to present a
photocopy of the check, or even a testimony of the witness. The
original is not necessary, although it si ideal.
2. When the document is only a mere collateral issue, not a issue factualitself.
Airfrance vs Carrascuso:
The ensuing altercation between carrascusoo and the crew of
aircraft was recorded on the journal. Carrascuso filed a case for
damages.
Carrascuso gave a testimony that there was a recorded notebook
about an altercation. Defense said present the notebook.
SC: Testimony of Carrascuso would suffice. Content of the
notebook is not the subject of inquiry. The factual issue is WON there
was an altercation. But this fact has its existence can be proved in
other way, other than the presentation of the notebook. Testimony can
also prove it.
Meyers Case:
In order to prove the perjurious statement, witness testifies as
to what the accused had testified during the investigation. The
opposing party said that the transcript is the best evidence.
-
8/3/2019 Evidence Midterm Discussion
13/23
EH 403 || SY 2011-2012
devie.j.bacomo Page 13
SC: issue is not about what the transcript contains, although the fact
of perjury maybe found in the transcript. But the perjuries testimony
can be proved by some other evidence such as the testimony. That is why
in this case, the hearing officer is presented.
Examples:
Annulment of marriage
To prove the fact of marriage, it is not indispensable that a
marriage contract be presented. Why? Bec the contents of the marriage
contract is the issue. Fact of marriage maybe proved by testimonial
witnesses. Although Marriage contract is ideal.
Murder
To prove the fact of death, it is not indispensable that
the death cert must be presented. The death maybe presented by other
evidence, such as testimonial evidence, bec this does not involve a
dispute over the precise tenor of the document.
Action for the collection of sum of money
To prove the fact of payment, it is not indispensable to
prove the orig receipt. You can prove payment in some other evidence,
such as photocopy or testimony.
So long as the issue is the content of the document, then the best ev
rule applies.
3. When the parties admitted as to the due execution and genuine ness of adocument. The content is not the issue.
Solidbank vs del monte: best evidence rule does not apply
4. When there is waiver of the right to object. The ground to object onthe basis of parole evidence is waivable, it is not self-executing and
must be invoked. If not raised, then it is deemed waived, and evidence
presented not being objected is admissible.
Dela cruz case:
Photocopy of the Deed of Absolute sale was presented. Is this
admissible in the light of best evi rule?
SC: In this case the defendant failed to object the introduction ofphotocopy when presented during the trial. So there was a waiver.
5. The original need not be presented when any of the exceptions apply.Contents of the document maybe proved other than the original, meaning
secondary ev. What these exceptions?
-
8/3/2019 Evidence Midterm Discussion
14/23
EH 403 || SY 2011-2012
devie.j.bacomo Page 14
A. When the original has been lost or destroyed, or cannot beproduced in court, without bad faith on the part of the offeror;
Orig is lost or destroyed without bad faith on the part of the
offeror there is physical impossibility; the secondary evidence
now becomes as original as the missing original, and now becomes
primary evidence; Cannot be produced in court maybe offensive
or immoral or impractical
-copy of the original
-
-recital or recollection of witnesses
If the issue is the exact wording on the face of the Lapida, you can
justify it under the first exception and present the secondary.
But just because the original is lost or destroyed does not entail production
of secondary ev, bec there are requisites, and they must be duly established:
a. Existence, genuiness, due execution of the original document existence can be be proved by photocopy, or execution can be proved by
the witnesses such as the
o parties;oro a person before whom the document is acknowledge like the
notary public;
o present a person who witness the execution such asinstrumental witnesses;
o or present a witness who was not present during theexecution but at any time after the execution saw the
document and familiar with the document and the signature
appearing with the document;o by one who is neither present during the execution nor
familiar with the signatures but he just happen yo be
someone where one of the parties confided the existence of
the document, so confidant;
No requirements that the above must be in order.
b. Prove the fact of lost present a witnesso One who has personal knowledge of the fact of lost of the
original doc
o One who made sufficient examination he has no personalknowledge of the fact of lost, but he made examinations ofsuch documents
c. Prove the fact there was no bad faith on the part of the offerord. Prove the contents
Take note that when the document has two or more originals, and you want to
present a secondary evidence that he orig was lost, take note that YOU
ACCOUNT OF ALL THE ORIGINALS. So if there are 5 originals, YOU MUST ACCOUNT
ALL THE FIVE ORIGINALS. Otherwise you cannot present secondary evidence.
-
8/3/2019 Evidence Midterm Discussion
15/23
EH 403 || SY 2011-2012
devie.j.bacomo Page 15
January 21, 2012
Take note: When you proposed to present secondary evidence, make sure that
you must account ALL the originals.
De vera Case:
Involves a piece of land owned by Marcosa Bernabe. During the
lifetime of Marcosa, she owns a piece of land. Two of her
children mortgage her property. When the two children were not
able to pay the loan, the other child of Marcosa redeem the
property. Marcosa dsold the property to the child who redeemed.
When Marcosa died, the other heirs claimed that such property was
co-owned by them.
Photocopy of the deed of sale was presented. They presented three
witnesses to prove the fact of lost of the original. The notary public
testified that the original cannot be produced. They also presented the
reps of the national archive and the register of deeds. But it was
established in the testimony of the notary public that there were four
original copies.
SC: while the plaintiffs was able to prove the existence of the
original, they failed the fact of lost of ALL the originals, as they were
only able to account for the lost of the three originals. The plaintiff
failed to account for the lost of the copy that was forwarded to the
provincial assessor. For failing to account of all the original copies, then
th e presentation of the photocopy is not justified under the Best ev rule.
B.When the original is in the custody or under the control of theparty against whom the evidence is offered, and the latter fails
to produce it after reasonable notice;
Reasonable notice to produce the original. It is not necessary
that the adverse party admits that he has the original. It is
enough that the plaintiff claims that the orig was with the
adverse party, and despite reasonable notice, the party wa not
able to produce.
EDSA Shangri la case:
Edsa and BF entered into a cinstruction contract. Thy agreed that
BF will send progress billing. Durig the existence of the contract, BF saidthat EDsa refused to pay the billing. To prove its claim that shangrila
refused to pay its progress billings, BF presented a photocopy of the
progress billing.
SC: under the second exception, when th eorig was with the adverse party and
was bot able to present despite reasonable notice, is applicable in ths case.
-
8/3/2019 Evidence Midterm Discussion
16/23
EH 403 || SY 2011-2012
devie.j.bacomo Page 16
During the trial the lawyer of BF, manifested in open court that the
orig was with EDSA Shang. The latter did not respond to their request for
the original progress report. SC said that this is sufficient compliance with
the rules of presentation of the secondary evidence, under the second
exception.
How do you serve the notice (EDSA SHANG vs BF)?
a. Through availing rule 27, 1997 Rules of civ Procedure to request.b. May be served by an oral motion in the presence of the adverse party or
his counsel
c. Subpoena duces te cumC. When the original consists of numerous accounts or records. And
they cannot be presented or voted. And they cannot go to court
without great loss of time and the fact sought to be proved from
them is only the result of the whole;
When the orig consists of numerous account of record..etc.
Compania Maritima Case:
Action for damages filed by Maritim against union. The company
presented an auditors report containgthe records of the summary of the
damages made by the union. This was objected bythe union, bec such is not the
orig.
SC: under the third exception, it is necessary that:
a. Voluminous record must be establishedb. Numerous accounts or records themselves must be made
accessible to the adverse party for purposes of cross
examination in order for them to validate the report. Meanng,
you have to present the individual voluminous record.
Here Estafa is one of the normal cases under this exception.
D.When the original is a public document or in custody of a publicofficer or recorded in some public office.
When the orig is a orig public doc in the custody of the public
officer. You only need to present the CERTIFIED TRUE COPY of the
document. Normally, the custodian is not allowed to bring the
orig outside the office, unless there exist a compelling nature.
Take note: The Certified True Copy should be attested to by the custodian,NOT the one in the photocopy machine.
Magdayao Case: Mere allegation that the orig document is with the adverse
party, would not suffice, you have also to support it with a justification.
Otherwise, it will be serve serving. There must be an honest, good faith
invocation of the exception that the original was with the adverse party.
-
8/3/2019 Evidence Midterm Discussion
17/23
EH 403 || SY 2011-2012
devie.j.bacomo Page 17
ELECTRONIC EVIDENCE
Disclaimer by Sir: I am not so fascinated with computers. So ill try my best
to simplify the rules, the best way I can, but more the theoretical aspects.
Before the rules on Electronic Evidence, the traditional way is to bring a
computer in court, and using it, display the data, and displayed to thecourt. You do actual demonstration. Thats how we did it during the olden
times.
PP vs BURGOS:
What the prosecution did was the court to allow them to bring the
computer. There was yet no rule on electronic evidence at that time. But
anyway, the court allows the motion of the prosecution.
What are the common forms ofELECTRONICEvidence?
1. Digital Images from digi cams, digi video presentations2. E-mail, text messages, voice mail3. Fax messages
An electronic ev, may be admitted when it complies with the requirement:
1. Relevant2. Competent for it to be competent, it must comply with the rules on
exclusion the best ev rule and the rules on authentication
Best EV in relation to Electronic
Applies only to electronic documents, insofar as best ev rulesapplies.
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.
NPC VS CODILLA:
Photocopies of documents were presented. NPC argued that under
the electronic ev, a photocopy is a functional equivalent of the orig.
SC: WON the photocopies are equivalent to orig under the best ev rule
in relation to the electronic ev rule.
-
8/3/2019 Evidence Midterm Discussion
18/23
EH 403 || SY 2011-2012
devie.j.bacomo Page 18
SC said that the document themselves are not even electronic.
Thus, there is no point in determining whether the photocopies are
functional equivalent. Not all entries of the documents were processed
electronically, in fact it contains signatures that were manually
affixed, thus negates the electronic character of the document. ALL THE
ENTRIES FOUND THEREIN MUST BE PROCESSED ELECTRONICALLY.
WHAT ISTHEORIGINALELECTRONICEVIDENCE for purpose of the BESTEV rule?
Lets take up an email. What is the original? It includes the following:
a. The digi messages or data as stored in the computer.b. If using the computer you display the e-data in the electronic
screen, that data appearing is also original.
c. If you send a copy to the email to other person, then this copyas stored in the device of this person is still an orig
d. If this person prints out the data messages of the email, thenthis prints out is also an original document.
e.Or if the other person sent copies to other person.
Sec 2, Rule 4:
Copies or counterparts regarded as equivalent of original, if:
a. It consists of two or more copy executed at or the same timewith identical contents.
b. Copies which are produced of the same impression, or from tesame matrix, or same mechanical or re-recording, or mechanical
process or equivalent techniques. Any reproduction of the
original, so long as the production produces the identical as
that of originals, in short in electronic, there are no
copies. Because everything are originals.
WHATABOUTA PHOTOCOPYOFA PRINTOUT?
A print out is equivalent of an original, bec it is an output
readable by sight and is accurately the same as that of the
original. But if it is photocopied using a photocopier, then
that document which is the photocopy of the print out is NOT
an original electronic document. In the light of Ssanyog, a
paper based which originates from a paper based document
cannot be an electronic document. In an ordinary Fax
transmission, its source is a hard copy and the print out is a
hard copy, thus it cannot be a an electronic document.
Thus a scanned copy is not an electronic evidence, because
the origin is a paper based.
SSANYONG CASE:
-
8/3/2019 Evidence Midterm Discussion
19/23
EH 403 || SY 2011-2012
devie.j.bacomo Page 19
Pursuant to their contract MCC Sales Industrial transmitted
using fax machine some invoices to SSanyong in South Korea.
Ssanyong filed a case in court. To prove that both entered in to
a contract, Ssanyong presented the photocopy of the Invoices via
Fax received by them from MCC.
Issue: WON the photocopy of the invoice was admissible as
evidence in the light of the best ev rule in rel to electronic ev
rule.
SC: An electronic document does not include Facsimile
transmission. SC traced its ruling the Electronic commerce Act in
UN. When our legislature came up with our own version of
Electronic Commerce Act, it expressly excludes telex and telecopy
or FAX Machine as an electronic data/document. Thus our framers
intended to exclude those documents produced by FAX Machine. This
is consistent with the purpose of the rule on Electronic
evidence, which presupposes a paper less info, environment.
However this is not the case in an ordinary fax machine. Bec in a
fax machine, its starts with a paper based documents and its with
a paperbased document. But theres also a computer generated fax
which starts at paper less then ends as paper based.
SC said that if a paper based document originated from a paper
based document, then it is not an electronic document. What made
the document not electronic because its source is paper-based.
BY THE WAY, ELECTRONIC DATA OR DOCUMENTS ARE JUST THE SAME.
3.Formally offered
Authentication of Electronic Evidence
Authentication the process of preserving the integrity of a
document, that it has not been adulterated, etc.
1. Digital Signature2. By evidence that the appropriate security procedures adopted by the SC
or prescribed by aw for authentication has been applied with thedocument.
3. By any evidence showing that the integrity of the documentary evidenceis sufficiently preserved this is a general means of authenticating a
document.
There are also electronic evidence that are offered as object evidence How do
you authenticate?
-
8/3/2019 Evidence Midterm Discussion
20/23
EH 403 || SY 2011-2012
devie.j.bacomo Page 20
1. Testimony of the person who recorded2. Or by the person, competent, who has the knowledge of the recording.3. Ephemeral Electronic Communications - telephone conversation, text
messages, streaming video, streaming audio
4. Same digi signatures, evidence allowed by SC or law, any otherevidence
PAROL EVIDENCE
What is the meaning of parol evidence?
-Presupposes the existence of a written agreement.
-presupposes a dispute over the contents of the document, just like the
best evidence rule. In fact, best ev and parole v always interplay in a given
situation.
Example: If Ms. A sold a property to Ms. C. After months ofnegotiations, they reduce the agreement into writing stating that Ms. A sold
Ms. C a property. Wala ni execute sa contract c Ms. A kay niingon c Ms. A na
lot B , dili lot A ang gibaligya. Ms A called x to the witness stand as her
witness.
Under the best ev rule, when the subject of the inquiry is the content,
the orig deed of sale must be presented. Any testimony of X contrary to that
written in the deed of sale cannot be admitted.
While ev rule has been complied with, bec the orig is there, Xs
testimony is not allowed by reason of the parol evidence rule, bec under
which, the only admissible evidence is the document itself. Anythig thatwould tend to vary or modify the deed of sale is not admissible. So xs
testimony is not admissible.
Purpose: to give certainty to written agreement, because of the frailty of
human memory.
BEST EVIDENCE VS. PAROL EVIDENCE
1. The question to be answered under best ev: What does the document say,state, show, contain?; concerns more on the document itself
Parol: What has the parties to the contract agreed upon?; concerns
with the agreement of the parties that is reduced in writing
2. BER: Concerns to primacy of evidencePER: you first comply with BER.
3. BER: any party to a case may invoke the BER, whether he is a party ornot to the document or contract, so long as you are a party to a case
PER: applies only in a case where the parties of the case are parties
to the contract, the reason being that contracts are binding only to
the parties.
4. BER: covers all forms of documents
-
8/3/2019 Evidence Midterm Discussion
21/23
EH 403 || SY 2011-2012
devie.j.bacomo Page 21
PER: only to contracts; so not all documents are subject to parol
evidence, only those docs that are contracts
YU TEK vs Gonzales:
Yu entered a contract with mr Gonzalez for the delivery of
pickles of sugar. Yu tek filed an action for a breach of contract.
Gonzalez contended that he was not able to deliver because he was not able to
harvest his own partition, and claimed that their agreement were to be
sourced from he=is own plantation, and since there was no harvest yet, then
there is obligation to deliver. The written agreement simply and plainly
states that Gonzalez has to deliver without qualifications as to the source
of the sugars.
SC: pursuant to the parol ev rule, the agreement was admissible. The
testimony of Gon cannot be admitted to vary what has been agreed upon.
INSTANCES WHERE Parol evidence does not apply:
1. When the document involve is not a contractCRUZ vs CA case:
The receipt is not a contract. Hence, parol evidence rule does
not apply. Bec the receipt contains only a statement of a particular
fact.
2. Where at least one of the parties of the case is not a party to thecontract. Because contract is binding only against a party to acontract, who has a right to object the evidence.
Lechugas case:
Victoria Lechugas alleges that the land occupied by defendant was
her own, bought by certain Leoncia. Defendant Lasengue said that the
land they occupied was not the one bought by Victoria.
SC: Parol ev does not apply bec lansengue is not a party to the
contract. Only those who are parties to the contract and their privies
can invoke the parole v rule..
3. What is prohibited is the intro of extraneous ev which will prove aprior or contemporaneous agreement. Conversely, if the evidence provesa prior or contemporaneous which will not vary the agreement, parol ev
does not apply. COLLATERAL AGREEENT RULE
Robles Case:
To recover the value of the improvement.
SC: Parole ev applies only where an extraneous ev is presented to
modify the contemporaneous or prior agreement. The agreement between
-
8/3/2019 Evidence Midterm Discussion
22/23
EH 403 || SY 2011-2012
devie.j.bacomo Page 22
robles and emanos as to the improvement is an independent agreement
which is not inconsistent with deed of sale. It is separate and
distinct, although related. The contract is a complete contract
independent from that of the contract of sale. Parol ev rule does not
apply.
4. When the case falls under any of the exception of the parol ev rule.When the parties raised it as an issue in the pleading any of the ff facts:
a)An intrinsic ambiguity, mistake or imperfection in the written agreement;
(b)The failure of the written agreement to express the true intent andagreement of the parties thereto;
(c)The validity of the written agreement; or
(d)The existence of other terms agreed to by the parties or their successors
in interest after the execution of the written agreement.
a. Intrinsic ambiguity,mistake, or imperfection
If raised as an issue of the pleading, the proponent is not
precluded to present evidence, even if such will vary the terms
of the agreement. Bec it has not=w become an issue in the case.
So if not raised in the pleading, any evidence tending to vary
the agreement is inadmissible even if there is ambiguity, etc,
because it has not been raised as an issue of the pleading. You
cannot prove not alleged. Thus plead it as an issue!
b. failure of the written agreement to express the true intent and agreement of the parties
Enriquez vs ramos:
SC: this is an exception to the parol evidence rule. Bec the
defendant has raised it as an issue in the pleading, then any
evidence tending to vary is admissible.
Land settlement vs Garcia:
The letter was presented in order to prove the fact of extension
of a period.
Sc: this is an exception to the parole evidence rule. While the
condition precedent is not stated in the letter, the LADESCO was
able to plead it as an issue in their REPLY.
c. Validity of the written agreementIf the party pleads its as an issue in the pleading that the
contract was void bec there was no consideration, then any
evidence to prove consideration is admissible.
-
8/3/2019 Evidence Midterm Discussion
23/23
EH 403 || SY 2011-2012
devie.j.bacomo Page 23
d. When the parties entered into a transaction after the writtenagreement
CANUTO vs MARIANO:
SC: What is prohibited is the extraneous which tends to prove
a prior or contemporaneous agreement with the writtenagreement, But here, what was sought to be proved is the
existence of a written contract executed subsequent to the
original agreement. Thus does not modify, vary the original
terms of the agreement, Parole v does not apply.
e. Theres the LAST ONE: Extraneous evidence which wouldotherwise modify if the party entitled to object, fails to
object. Thus there is a WAIVER.
Willex plastic CASE:
SC: there was a contract one of the parties tried to prove the
existence of an agreement not contained in the orig. But the
other party fails to object.
SC: there is a waiver, even if originally it is not
admissible.
Distinguish parol evidence in Crim vs parol under Civil Code
Statute of fraud
kind of parole ev rule under civil, par 2 1483 Can only be proved through a written memorandum, and
cannot be prove through testimonial evidence.
Make sure that you have a written contract, otherwiseyou cannot present a witness; thus unenforceable.
cannot be validly entered into orally, otherwise,cannot be enforced.
So, COVERAGE: object up to parole evidence and cases
God bless!
Do all the good you can, by all the means you can, in all the ways you can, in all the places
you can, at all times you can, by all the ways you can, as long as you can. John Wesley