evidence midterm discussion

8/3/2019 Evidence Midterm Discussion

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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)


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- 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


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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


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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


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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,


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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?


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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


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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


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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


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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.


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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:


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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.


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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?


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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.


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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.


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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.


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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.


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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:


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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?


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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


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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


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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.


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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

evidence midterm discussion

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