Evidence Midterm Notes Part 2: EVIDENCE 404 "A Collaboration by Friends "

EVIDENCE 404 “a collaboration by friends ” 2014-2015
EVIDENCE MIDTERM NOTES PART 2
DOCUMENTARY EVIDENCE
I. BEST EVIDENCE RULE

II. PAROL EVIDENCE RULE
I. BEST EVIDENCE RULE
RULE 130
Section 3. Original document must be produced; exceptions. — When the subject of inquiry is the contents of a document,
no evidence shall be admissible other than the original document itself, except in the following cases:
(a) When the original has been lost or destroyed, or cannot be produced in court, without bad faith on the part of
the offeror;
(b) When the original is in the custody or under the control of the party against whom the evidence is offered, and
the latter fails to produce it after reasonable notice;
(c) When the original consists of numerous accounts or other documents which cannot be examined in court
without great loss of time and the fact sought to be established from them is only the general result of the whole;
and
(d) When the original is a public record in the custody of a public officer or is recorded in a public office. (2a)
Section 4. Original of document. —

(a) The original of the document is one the contents of which are the subject of inquiry.
(b) When a document is in two or more copies executed at or about the same time, with identical contents, all such
copies are equally regarded as originals.
(c) When an entry is repeated in the regular course of business, one being copied from another at or near the time
of the transaction, all the entries are likewise equally regarded as originals. (3a)
RULE 132
Section 25. What attestation of copy must state. — Whenever a copy of a document or record is attested for the purpose
of evidence, the attestation must state, in substance, that the copy is a correct copy of the original, or a specific part
thereof, as the case may be. The attestation must be under the official seal of the attesting officer, if there be any, or if he
be the clerk of a court having a seal, under the seal of such court. (26a)
Section 27. Public record of a private document. — An authorized public record of a private document may be proved by
the original record, or by a copy thereof, attested by the legal custodian of the record, with an appropriate certificate that
such officer has the custody. (28a)
If the evidence offered is object evidence or testimonial evidence then forget about best evidence rule.
HOW DO YOU KNOW IF THE EVIDENCE IS OBJECT OR DOCUMENTARY? It depends on the PURPOSE.
a. If the document or writing is offered as proof of its contents then that writing is offered as DOCUMENTARY
EVIDENCE
b. If the document or writing is presented to prove other factors /matters other than the contents of the writing
of the document then that writing is offered as OBJECT EVIDENCE
Note this basic distinction; this is necessary because the best evidence rule applies only to documents. The Best Evidence
Rule is fleshed out in Rule 130 sec 3 which states that when the subject of inquiry is the contents of a document, no
evidence shall be admissible other than the original document itself.
Best Evidence Rule is criticized as a misnomer because it does not suggest that that the original is the better evidence than
the secondary. Best Evidence Rule does not concern itself in the hierarchy of the probative value of the evidence. It only
concerns itself with the primacy of the original over the secondary. Meaning if the original is available then you present the
original. But once the secondary evidence may be allowed after complying with the conditions, then that secondary
evidence for purposes of probative value is as good as the original because the secondary takes the place of the original.
Best Evidence Rule only suggests preference in the presentation of the original evidence.
WHAT is the PRIMARY PURPOSE of Best Evidence Rule?
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 In the case of Heirs of Margarita Prodon vs Heirs of Maximo Alvarez, the SC said that the primary
purpose of Best Evidence Rule is to ensure that the exact contents of a writing are brought before the
court. So obviously, it is for accuracy.
WHY is there a need for bringing before the court the exact terms/contents of the document?
a. The precision in presenting to the court the exact words of the writing is of more than average importance,
particularly as respects operative or dispositive instruments, such as deeds, wills and contracts, because a slight
variation in words may mean a great difference in rights and obligations
b. There is a substantial hazard of inaccuracy in the human process of making a copy by handwriting or
typewriting (Example: manually copying a document as it was done in olden times)
c. As respects oral testimony purporting to give from memory the terms of a writing, there is a special risk of error,
greater than in the case of attempts at describing other situations generally
d. It is designed to prevent fraud. It is to prevent alterations of the contents of the writing by either party.
e. The rule protects against misleading inferences resulting from the intentional or unintentional introduction of
selected portions of a larger set of writings.
But the evils of mistransmission of critical facts, fraud, and misleading inferences arise only when the subject or inquiry
relates to the contents of the writing. Hence, the Best Evidence Rule applies only when the terms of a writing are in issue.
When the evidence sought to be introduced concerns external facts, such as the existence, execution or delivery of the
writing, without reference to its terms, the Best Evidence Rule cannot be invoked. In such a case, secondary evidence may
be admitted even without accounting for the original.
“DOCUMENT”
What is a DOCUMENT in the context of Best Evidence Rule?
Documents as evidence consist of writing or any material containing letters, words, numbers, figures, symbols or other
modes of written expression offered as proof of their contents.
The catch all phrase any other means of written expression may very well include artwork like drawings, this is the ruling in
the case of Seiler vs Lucas.
SEILER vs LUCASFILM
 Facts: Lee Seiler (plaintiff), a graphic designer, accused Lucasfilm (defendant) of copyright infringement with regard
to machines called Imperial Walkers depicted in The Empire Strikes Back. Seiler claimed that Imperial Walkers were
copied from science fiction creatures he created and published in 1976 and 1977 called Garthian Striders. In 1981,
Seiler obtained a copyright on the Garthian Striders, depositing with the Copyright Office “reconstructions” of the
originals as they as had appeared in 1976 and 1977. Lucasfilm argued that Seiler did not obtain his copyright until
after The Empire Strikes Back was released and there is no evidence that Seiler created the Garthian Striders prior
to The Empire Strikes Back. The district court held an evidentiary hearing on the admissibility of the
“reconstructions” of the Striders. It found that Seiler had lost or destroyed the original drawings of the Striders in
bad faith and under the best evidence rule, the reconstructions were not admissible. The district court granted
summary judgment to Lucasfilm. Seiler appealed.
 Held: Seiler argues that the best evidence rule does not apply to his work, in that it is artwork rather than
"writings, recordings, or photographs." He contends that the rule both historically and currently embraces
only words or numbers. Neither party has cited us to cases which discuss the applicability of the rule to
drawings.
To recognize Seiler's works as writings does not, as Seiler argues, run counter to the rule's preoccupation
with the centrality of the written word in the world of legal relations. Just as a contract objectively
manifests the subjective intent of the makers, so Seiler's drawings are objective manifestations of the
creative mind. The copyright laws give legal protection to the objective manifestations of an artist's ideas,
just as the law of contract protects through its multifarious principles the meeting of minds evidenced in
the contract. Comparing Seiler's drawings with Lucas' drawings is no different in principle than evaluating
a contract and the intent behind it. Seiler's "reconstructions" are "writings" that affect legal relations; their
copyright ability attests to that.
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A creative literary work, which is artwork, and a photograph whose contents are sought to be proved, as in
copyright, defamation, or invasion of privacy, are both covered by the best evidence rule. We would be
inconsistent to apply the rule to artwork which is literary or photographic but not to artwork of other forms.
Furthermore, blueprints, engineering drawings, architectural designs may all lack words or numbers yet
still be capable of copyright and susceptible to fraudulent alteration. In short, Seiler's argument would
have us restrict the definitions of Rule 1001(1) to "words" and "numbers" but ignore "or their equivalent."
We will not do so in the circumstances of this case.
ORIGINAL DOCUMENT
The Best Evidence Rule requires the presentation of the original instead of the secondary evidence but what is an original
document for the purposes of Best Evidence Rule?
a. The original of the document is one the CONTENTS of which are the subject of inquiry.
b. When a document is in two or more copies executed at or about the SAME TIME, with IDENTICAL
CONTENTS, all such copies are equally regarded as originals.
c. When an entry is REPEATED IN THE REGULAR COURSE OF BUSINESS, one being copied from another at
or near the time of the transaction, all the entries are likewise equally regarded as originals.
DISCUSSION:
A. THE ORIGINAL OF THE DOCUMENT IS ONE THE CONTENTS OF WHICH ARE THE SUBJECT OF INQUIRY.
ANY document the contents of which are subject to inquiry is considered original. By this definition, even a
photocopy can be considered an original as long as the subject of the inquiry is the contents of that
photocopy. So if the object being falsified is a photocopy of a deed of sale then that photocopy which is
alleged to be falsified should be presented in court because it is the original. It is the contents of that
photocopied deed of sale which is the subject of inquiry therefore it is original.
B. WHEN A DOCUMENT IS IN TWO OR MORE COPIES EXECUTED AT OR ABOUT THE SAME TIME, WITH
IDENTICAL CONTENTS, ALL SUCH COPIES ARE EQUALLY REGARDED AS ORIGINALS.
A textbook example of this kind of evidence is a document the copies of which are produced by way of
carbon placed in between the sheets. Under this definition of original document, all copies resulting from
placing the carbon in between the sheets of paper are considered equally original. Any one of these copies
may be presented for the purpose of Best Evidence Rule without accounting for the others. As in the ruling
of:
PEOPLE vs HONORABLE TAN
 Facts: Pacita Madrigal-Gonzales and her co-accused were charged with the crime of falsification of public
documents, in their capacities as public officials and employees, for having made it appear that certain
relief supplies and/or merchandise were purchased by Gonzales for distribution to calamity indigents, in
such quantities and at such prices, and from such business establishments or persons as written in said
public documents. The truth was, no such distributions of such relief and supplies as valued and as
supposedly purchased had ever been made.
The prosecution presented as evidence a booklet of receipts from the Metro Drug Corporation in
Magallanes, Cebu City. Said booklet contained triplicate copies, the original invoices of which were sent to
the company’s Manila office, the duplicates given to customers, and the triplicates left attached to the
booklet. One of the Metro Drug’s salesmen who issued a receipt further explained that, in preparing
receipts for sales, two carbon copies were used between the three sheets, so that the duplicates and the
triplicates were filed out of the use of the carbons in the course of the preparation and signing of the
originals.
The trial court judge, Hon. Bienvenido Tan, interrupted the proceeding, holding that the triplicates were
not admissible unless it was proven that the originals were lost and cannot be produced. Another witness
was presented, and he alleged that the former practice of keeping the original white copies no longer
prevails as the originals are given to the customers, while only the duplicates are submitted to the Manila
office.
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Issue: Are the triplicates of the receipts admissible as evidence?
 Held: Yes. Under the law on evidence, the best evidence rule is that rule which requires the highest
grade of evidence obtainable to prove a disputed fact. The admissibility of duplicates or triplicates
under this rule has long been settled. “When carbon sheets are inserted between two or more sheets of
writing paper so that the writing of a contract upon the outside sheet, including the signature of the party
to be charged thereby, produced 2 facsimile upon the sheets beneath, such signatures being thus
reproduced by the same stroke of the pen which made the surface or exposed impression, all of the sheets
so written on are regarded as duplicate originals and either of them may be introduced in evidence as
such without accounting for the nonproduction of the others.”
Doctrine: The best evidence rule is that rule which requires the highest grade of evidence obtainable to prove a
disputed fact. Carbon copies, however, when made at the same time and on the same machine as
the original, are duplicate originals, and have been held to be as much primary evidence as the originals.
C. WHEN AN ENTRY IS REPEATED IN THE REGULAR COURSE OF BUSINESS, ONE BEING COPIED FROM
ANOTHER AT OR NEAR THE TIME OF THE TRANSACTION, ALL THE ENTRIES ARE LIKEWISE EQUALLY
REGARDED AS ORIGINALS.
Typical example of this kind is for example Mr. Querubin is engaged in the business of a sari sari store and
in order to keep his financial records in order he keeps three separate journals one for him another for his
partner and last for the BIR. All of these journals have identical entries and all are considered as original.
What are the INSTANCES WHERE THE BEST EVIDENCE RULE DOES NOT APPLY?
1. The document or writing is merely collateral to the fact in issue

2. Where the purpose of the evidence is to establish a fact which has an existence independent from the
document or writing although that fact may have been reduced or evidenced into writing
3. The dispute involves an actionable document and the adverse party expressly or impliedly admitted
the genuineness and due execution of the actionable document
4. If the purpose of presenting the evidence is to prove external matters (matters outside the content)
like its existence, its issuance or delivery.
5. If the objection to the admission of an otherwise inadmissible evidence is waived
6. BER does not apply if the matter falls under any of the exceptions specifically mentioned in Section 3
of Rule 130.
- You will appreciate more the principle of the best evidence rule by examining the transactions where it does not
apply.
DISCUSSION:
1. THE DOCUMENT OR WRITING IS MERELY COLLATERAL TO THE FACT IN ISSUE
- The dispute may involve a document but it is merely collateral. It is not the issue involved. This is otherwise
known as the COLLATERAL FACT RULE.
- This principle is illustrated in the case of AIR FRANCE v CARRASCOSO

 This is a suit for damages arising from breach of contract filed by an airline passenger who claimed
that he was unjustly, maliciously bumped off as a passenger. He was supposed to be enjoying a
business class accommodation but relegated to a first class accommodation in favor of a white man.
He was travelling from the Philippines to Rome but this trip consisted of various legs. His trip from
Philippines to Bangkok was okay but when he was in Bangkok, Thailand he was made to vacate his
seat in favor of a white man. Of course, having the blood of Lapu-Lapu in his veins, Mr. Carrascoso
vehemently protested. This resulted in a heated altercation between him and of the crew members of
the aircraft. During the trial, the witness testified recounting the incident and when the witness
testified that the incident was even recorded by another crew member in his notebook, the other
party objected to the admission of the testimony demanding for the presentation of the notebook
arguing that under the best evidence rule, the best evidence should be the notebook and not the
testimony of the witness.
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 The Supreme Court said the best evidence rule applies only if the subject of inquiry is the
contents of the document. In here, while the doc was mentioned by the witness, its existence
is merely collateral to the fact in issue. The issue is about the bumping off and the altercation
which resulted in the unlawful removal of the plaintiff from his accommodation. The mention
of the notebook was merely a collateral fact. The issue here is about the incident between
the plaintiff and the crew member. The testimony of the witness was offered to prove the fact
of the bumping off and the altercation and was never offered to prove the contents of the
notebook. The best evidence rule does not apply.
2. WHERE THE PURPOSE OF THE EVIDENCE IS TO ESTABLISH A FACT WHICH HAS AN EXISTENCE
INDEPENDENT FROM THE DOCUMENT OR WRITING ALTHOUGH THAT FACT MAY HAVE BEEN REDUCED
OR EVIDENCED INTO WRITING
- A fact which has existence independent from the writing but nonetheless it is evidenced by writing.
- This means that the fact may be proved by evidence other than the writing although the writing is available to
prove the fact.
- MEYERS v US
 This involved criminal prosecution for subornation of perjury. Three counts against Meyers. Meyers
was a government official connected with the department of defense of the US. Now, after the war
and wanting to investigate reports of corruption perpetrated by officers of department of defense, the
US Senate conducted an investigation. One of those investigated was Mr. Meyers who was accused of
maintaining financial interest in a certain business entity which conducted substantial business
transactions with the government. This corporation, Aviation Electric Corporation, was engaged in the
business of manufacturing airplane parts and accessories. It was alleged that this corporation
cornered substantial transactions with the government. One of the witnesses and also accused in the
case was Mr. Lamarre who was the president of Aviation Electric Corporation. During his testimony
before the Senate Committee, he testified under oath that Mr. Meyer had no financial interest or has
no connection to Aviation Electric. It was also established that somewhere in the testimony, he also
made a contradictory claim that indeed Mr. Meyer had financial interest in the corporation or
otherwise has substantial interest in the corporation. Because of the allegedly perjurious testimony of
Mr. Lamarre, he was charged with three counts of perjury for falsely denying that Mr. Meyers had
interest in the company when in truth and if fact Mr. Meyers has financial interest in the corporation.
During the arraignment, Mr. Lamarre pleaded guilty to the charges but he confessed that before he
gave his prejurious testimony before the Senate Investigation Hearing, he claimed that Mr. Meyers
instructed him to lie under oath. On the basis of this info, three counts of subornation of perjury were
filed against Mr. Meyers. In the prosecution for subornation of perjury, it is necessary to establish that
someone committed perjury and in the determination of whether that someone committed perjury, it
is necessary to establish that someone made a statement under oath during the senate investigation.
So the crucial issue in the subornation of perjury charges of Mr. Meyers is as to what exactly was the
testimony of Lamarre during the senate investigation. To prove this fact, the prosecution presented
the special counsel who presided the hearing, the one who examined Mr Y as witness to testify as to
what exactly did Mr. Y testify during the hearing. Subsequently, the transcript of the stenographic
notes taken during the testimony of Mr. Lamarre were also presented in court.
 The accused never raised the issue as to the admissibility of the testimony of the special counsel. But
since this issue was raised in the dissenting opinion of the decision, the SC was constrained to address
the issue of whether or not it was proper of the court to admit the testimony of the special counsel
considering that the transcript of stenographic notes was available in the light of the best evidence
rule.
 In this case, the US SC had the occasion to rule that the best evidence rule applies only to a
situation where the subject of the inquiry is the contents of the document which is not the
case here. The purpose of the testimony of the special counsel is to prove the exact
testimony of Mr. Lamarre given during the senate investigation hearing. He was not
presented to prove the contents of the transcript of stenographic notes. While the exact
testimony of Mr. Lamarre could also be proved by the transcript, it does not mean that the
transcript is the only evidence of that fact. The fact of the exact testimony of Mr. Lamarre can
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be proved either by the transcript or someone who heard him testify. In this case, the special
counsel.
- Similar situation could be applicable in a case where the issue or the fact sought to be established is the death
of a party. Murder for example. Of course, in the prosecution for murder you establish the death of the victim.
The fact of death is usually evidenced by a death certificate. But the fact of death can be proved not only by
the death certificate but by any other evidence like the testimony of a witness who saw the victim dead.
Although it is ideal to present the death certificate, but if it is not available it is not the end of your case. You
may present other evidence to prove the fact of death. Death is a fact which has in existence which can be
proved independently from the death certificate.
- The same is true if the issue is about the fact of birth or the fact of marriage. In a petition for nullity of
marriage, you have to first establish the fact of marriage. Marriage is usually evidenced by a marriage contract
but the fact of marriage may also be proved by other evidence available like the testimony of witnesses who
have personal knowledge of the fact of marriage. So the fact of marriage has its own existence because it can
be proved. It has its own existence independent from a writing or a document although it happens that the fact
of marriage can be evidenced by a marriage contract.
3. THE DISPUTE INVOLVES AN ACTIONABLE DOCUMENT AND THE ADVERSE PARTY EXPRESSLY OR
IMPLIEDLY ADMITTED THE GENUINENESS AND DUE EXECUTION OF THE ACTIONABLE DOCUMENT
- This was the ruling in the case of CONSOLIDATED BANK v DEL MONTE MOTOR WORKS
 This is an action for collection of sum of money filed by the bank against the borrower, Del Monte
Motor Works. The loan transaction was evidenced by the promissory note (PN) executed by the
borrower through its officer. As a standard practice in the industry, the officers of the corporation were
also made to sign joint and solidary undertaking so that if the corporation defaults in the payment of
the loan, the officers who signed the promissory note oblige themselves to be liable. For non payment
of the loan, the bank was constrained to file an action to recover. During the trial, the bank presented
a photocopy of the PN signed by the officers who were also impleaded as defendants in this case. In
their answer, the defendant corporation interposed the affirmative defense that the PN was issued
without consideration. On the other hand the officers, the individual defendants, interposed the
defense that they merely signed the PN not in their personal capacities but as officers of the corp.
Because the bank presented only a copy of the PN, the defendants objected the photocopy invoking
the best evidence rule which was sustained by the trial court. When the trial court excluded the
photocopy of the PN, the defendants moved for the dismissal of the case because without proof,
without the PN, the plaintiff cannot be expected to prove its cause of action. The issue was whether or
not the photocopy of the PN is admissible in the light of the best evidence rule.
 The SC said best evidence rule applies only when the dispute or the subject of the inquiry is
the contents of a document. In this case, obviously the defendants never disputed the
contents of the document. In fact, based on their answer, they admitted the genuineness and
due execution of the PN although they interposed defenses which are outside of its
genuineness and due execution. So when they admitted or when they interposed the
defense of lack of consideration, it in effect admitted that the PN contains its exact wordings,
terms and conditions except that it was issued without consideration. On the other hand, the
defendant interposed the defense that they only signed the PN in their capacity as officers.
They are in effect admitting that the PN contains its exact words, terms and conditions. So
obviously, the SC said that contents of the PN were never the subject of the inquiry
and therefore the best evidence rule does not apply.
- So the question then is, when does the content of the document become the subject of the inquiry?
This is easier said than determined. When do you say that in that particular dispute, the subject of the
inquiry is the contents of the document?
 In the same case of CONSOLIDATED BANK v DEL MONTE MOTOR WORKS, the SC had the
occasion to explain how the contents of the document become the subject of the inquiry
 The SC said that for purposes of the best evidence rule, the content of the document is said
to be the subject of the inquiry if there is a dispute as to its exact wordings, exact
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figures, exact terms and conditions. So that when a party claims that a PN or this
document contains this but the other claims otherwise that the document contains this one,
there are contrary claims obviously there is a dispute as to the exact contents of the
document then you apply the best evidence rule. In the case it was not applied because they
all admitted that the contents of the document are in order. They both agreed that the PN
contains exactly the wordings, terms and conditions that they agreed upon only that it was
issued without consideration. But the issue on the lack of consideration is beyond the terms
or contents of the contract.
4. IF THE PURPOSE OF PRESENTING THE EVIDENCE IS TO PROVE EXTERNAL MATTERS (MATTERS OUTSIDE
THE CONTENT) LIKE ITS EXISTENCE, ITS ISSUANCE OR DELIVERY.
- PEOPLE v TANDOY
 Involves the prosecution for violation of dangerous drugs act where the accused was caught in the
very act of peddling, selling marijuana. The prosecution, in order to prove that the transaction
involving the sale of marijuana did in fact take place, presented among others, a photocopy of the ten
peso bills which served as the marked/buy bust money. The presentation for the admission of the
photocopy of the ten peso bill was objected to under the best evidence rule being a photocopy.
 The SC overruled the objection holding that the best evidence rule does not apply because
the presentation of the photocopy of the ten peso bill was only for the purpose of proving its
existence, that in fact money changed hands in the buy bust operation. There was never an
issue as to the wordings, figures, numbers or contents of the marked money.
- The same principle was applied in the case of ARCEO v PEOPLE

 Involves prosecution for the violation of BP22. During the trial, the prosecution presented only a
photocopy of the subject check. The admission of the photocopy was objected to under the best
evidence rule.
 The SC overruled the objection holding that the gravamen of the offense of violation of BP 22
is the mere issuance of a bank check and never the contents of the check. And so, best
evidence rule does not apply and presentation of the photocopy of the check is sufficient.
5. IF THE OBJECTION TO THE ADMISSION OF AN OTHERWISE INADMISSIBLE EVIDENCE IS WAIVED
Take note that like any other exclusionary rules, best evidence rule is not self-operating. It must be invoked by the party
entitled to it and it must be invoked seasonably. Otherwise, the principle of waiver operates and an inadmissible
secondary evidence becomes admissible for failure to object.
 This is the ruling in the case of DELA CRUZ v CA:

 Facts: The case involves an action involving an ownership property issue over a piece of land. The plaintiffs are the
heirs of their predecessors in interest who claimed that their predecessors in interest bought the subject piece of
land from the defendants. The defendants, after selling the property to the said predecessors in interest sold the
same property to a third party. The heirs filed an action to recover the property claiming that it has already been
bought by their parents. During the trail and in support of their claim that their parents bought the property during
their lifetime from the same defendants, the plaintiffs presented a photocopy of the Deed of Sale (DOS). When the
matter reached the SC, the defendants, for the first time, questioned the admission of the photocopy of the DOS
under the BER but this argument was rejected by the SC.
 Ruling: SC said that they should have objected to the admission of the photocopy of the DOS during trial but in this
case, the defendants did not object. They never invoked BER. In fact, their lawyer even examined the witness who
testified about the DOS. In effect, the defendants waived the privilege or the benefit of the BER. In a way, this is an
instance where in effect, a photocopy of the evidence may be admitted even if the exceptions of the BER are not
present and this is because of the waiver on the part of the defendant.
6. BER DOES NOT APPLY IF THE MATTER FALLS UNDER ANY OF THE EXCEPTIONS SPECIFICALLY
MENTIONED IN SECTION 3 OF RULE 130.
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I’m referring to the secondary evidence rule which says that in the absence of the original, secondary evidence
may be applied.1
SECONDARY EVIDENCE
RULE 130, Sec. 3. Original document must be produced; exceptions. When the subject of the inquiry is the
contents of the document, no evidence shall be admissible other than the original document itself, except in the
following cases:
(a) When the original has been lost, or destroyed, or cannot be produced in court, without bad
faith on the part of the offeror;
(b) When the original is in the custody or under the control of the party against whom the
evidence is offered, and the latter fails to produce it after reasonable notice;
(c) When the original consists of numerous accounts or other documents which cannot be examined
in court without great loss of time and the fact sought to be established from them is only the
general result of the whole; and
(d) When the original is a public record in the custody of a public officer or is recorded in a public
office.
As I said, BER is the rule on the primacy of the original over the secondary meaning if the original is available, no
secondary evidence may be allowed. Conversely therefore if the original is not available, secondary evidence may
be allowed. So what are the instances when original document is not allowed, and therefore, secondary may be
admissible.
1. IF THE ORIGINAL IS LOST, DESTROYED, OR CANNOT BE PRODUCED IN COURT WITHOUT BAD FAITH
ON THE PART OF THE OFFEROR.
Also covers instances where the evidence is neither lost nor destroyed but for any other reason, it cannot be
produced in court. Typical example of this kind is when it is not practicable to bring the original in court.
An evidence may be considered as documentary so long as it contains writings, figures and numbers, etc and the
document is offered as proof of its contents. It may be considered as documentary regardless of the material in
which the writing is found. For example, if the writing is inscribed in a tombstone and there is a dispute, the writings
found in the tombstone become the subject of inquiry. Under the BER, the tombstone there is documentary
evidence in the light of the BER. It contains writings, and the writings become the subject of inquiry. Under the BER,
normally, had it been a movable property, that should have been presented in court physically. But by the very
nature of the tombstone, it is not practicable to bring the tombstone and exhibit it to the court. Legally, the
tombstone as an original document cannot be produced in court, secondary evidence in this situation may be
allowed because of the very nature of the document itself. Or because of practical considerations or when the
writing which is the subject of the inquiry is found in a sensitive part of the human body- maybe, the writing is
found in the female breast or any male sex organ for whatever reason, the writing’s there. The tattoo, the symbols
happen to be the subject of inquiry. That could be technically, legally considered as documentary evidence if it is
offered, the contents of which is the subject of inquiry, but for reason of morality and public policy, you cannot also
just cut off and bring it to court. Or you cannot just ask somebody to strip naked before the court to show the
writing, the tattoo, inscribed in the breast in consideration of morality.
But before secondary evidence may be allowed under this first situation, the rule requires some conditions to be
complied with. What are the requisites? In the case of De Vera v Aguilar, the SC enumerated the requisites
before secondary evidence may be allowed in the situation where the original document is lost, destroyed or cannot
be produced in court.
REQUISITES BEFORE SECONDARY EVIDENCE MAY BE ALLOWED IF ORIGINAL DOCUMENT IS LOST,

DESTROYED OR CANNOT BE PRODUCED IN COURT:
i. The offeror must first establish the existence and due execution of the original
document.
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N.B. Sir first discussed the exception then the conditions to be complied with before secondary evidence may be presented. Then, he moved on to the
succeeding exceptions and their corresponding conditions. Please be guided accordingly. 
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ii. Prove the fact of loss.

iii. Prove the contents of the original document
DISCUSSION:
I. THE OFFEROR MUST FIRST ESTABLISH THE EXISTENCE AND DUE EXECUTION OF THE
ORIGINAL DOCUMENT.
How do you prove that the document alleged to be lost actually existed and that it was duly
executed? This fact may be proved by TESTIMONIAL WITNESSES. And who are these witnesses
who may testify on this fact?
1. Either of the parties to the lost original document.

If it’s a contract, either of the party may testify that indeed this contract existed, it
was duly executed and the original got lost.
2. A witness to the execution to the lost original document or contract.

The practice of having a witness sign during the execution of certain contracts. It’s
not there for nothing. It serves a purpose. And this is one of the reasons why it is
advisable (though not indispensable) that contracts are signed by the witnesses, not
only by the parties.
3. If the document happens to be a public document because it has been notarized by a

notary public, then a possible witness to establish the fact of its existence is the notary
public himself.
4. Any person, who being neither a party, nor a witness nor a notary public, but one time or
another, he was shown a copy of the original document or the contract. And because
he was familiar with signatures of the party appearing therein, he can confirm that this
contract was indeed executed by the purported party.
This refers to the person who at one time or another was shown the original copy of
the contract and was able to recognize that the signatures appearing therein are the
signatures of the parties who claimed to be parties to the contract. Because of the
fact that this witness is familiar with the signatures of the part.
5. A person who, neither a party, nor a witness, nor the notary public, nor familiar with the
signature but someone who happened to be at the right place at the right time.
Someone who, after the execution of the contract, was made aware by either party about the
execution of the contract.
This refers to close friends or confidants of the parties. This witness is a person who
was made aware by either of the parties of the fact of the execution of the original
contract. This is included as one of the possible witness enumerated by the SC in the
ruling laid down in De Vera v Aguilar.
SIR: But personally, I have reservation on the fifth witness because obviously the
testimony of this witness is hearsay. His testimony as to the fact of existence and
the due execution of the original lost document will be based not on his personal
knowledge but based on the information he received from the parties. And under
the hearsay evidence rule, this kind of testimony is inadmissible, and worse, has no
probative value. So I don’t know why the SC put it there. I don’t think that this
witness can testify on that fact especially if it was objected to by the adverse party
on the ground of hearsay and no probative value.
II. PROVE THE FACT OF LOSS.
De Vera also enumerated the WITNESSES WHO CAN ESTABLISH THE FACT OF LOSS:
1. Any person who is personally aware of the fact of loss.
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So if the original document was lost because it was burned during fire, someone who
saw the document eaten by fire can testify or if the original document was
swallowed by a dog for example, He can be a possible witness.
2. Someone who was not able to personally witness the loss but he can testify that
he exerted reasonable efforts to look for the missing original document in the
place or place where a similar kind of document is usually kept by the custodian.
Not personally aware of the fact of loss but his qualification as a witness lies in the
fact the he exerted efforts to locate the original document. Where should the effort
be directed to? It should be directed to the place where document or documents of
similar character are usually kept by the persons who have the custody of the
documents. So if the original document is a notarized DOS, the repository of these
kinds of documents is the archives office, the Office of the Clerk of Court in Cebu.
These are the usual places where custodians keep these types of records. So the
second possible witness now will just have to testify that he/she exerted efforts to
locate the original at these places and the effort proved to be futile because the
original is not available in these places, he could be a possible witness to prove the
fact of loss.
3. A person who made any other form of examination to locate the original.
TAKE NOTE: the 2nd witness refers to a witness who makes examination at the places
where a similar types of document is usually kept. The third one has also made
reasonable examination in any manner other than the 2 nd. This witness will now
testify, to differentiate it from the 2nd, that he also looked at in some places other
than the place where this document is usually kept. That witness may also testify to
the fact of loss.
In proving the fact of loss, it must be established first how many originals there are. After
establishing this, to establish fact of loss, the loss of all the originals must be duly accounted for.
So it is not enough that you establish the loss of one or some and not all of the originals. Non-
compliance with this requisite will not justify the presentation of secondary evidence
because the fact of loss is deemed not duly established. Precisely in the ruling of:
 De Vera vs Aguilar
This involves a piece of land owned by Marcosa. She has five children. During her lifetime, 2 of
her children obtained a loan from a lawyer and as security for the loan, the property was
mortgaged to the lawyer. For non-payment, the lawyer foreclosed. But 1 of her children, the
daughter who is married to Aguilar redeemed the property from the lawyer. In recognition of the
daughter’s effort, Marcosa executed a Deed of Sale in favor of the daughter. After several years,
the daughter and the husband obtained a title over the said property. But death has its own
misfortune. Marcosa died, other siblings now claimed that the property is still part of the estate of
their mother and being the heirs, they now claim that they are co-owners along with their sibling
Aguilar. They claim that while their mother sold the property, their sibling allegedly executed a
Deed of Sale reselling the property to the mother. So that at the time of Marcosa’s death, the
property is owned by the mother; therefore, inherited by them. So they now demanded partition.
When Aguilar refused, the siblings went to court asking for partition. To prove that indeed it was
resold, they presented a photocopy of the deed of sale. The lawyer who notarized the document
testified during the trial. Lawyer said there are 4-5 original copies. It was also established that one
original copy is forwarded to National Archive Office, the other one to RD, other to provincial
Assessor’s Office and the last one is kept by the lawyer. The admission of the photocopy was
objected to under the Best Evidence Rule. The plaintiffs argued that they were able to prove fact
of loss. So the Issue there is whether or not the requisites for the presentation of Secondary
Evidence were complied.
 SC: Based on the evidence of record, there were 4-5 original copies, but they were only
able to account for the loss of 3 (Lawyer, Assessor, Archive). All these were established
to have been lost. But it was also established that there is one copy with the Register of
Deeds but the plaintiffs never proved the fact that it was no longer available. No
representative from the register of deeds nor a witness testified that he or she made
inquiry to the RD. So the SC said, for failure to account for the loss of all copies, the
presentation of secondary, does not comply with the requirements. (Excerpt from the
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Case: all duplicates or counterparts must be accounted for before using copies. For,
since all the duplicates or multiplicates are parts of the writing itself to be proved, no
excuse for non-production of the writing itself can be regarded as established until it
appears that all of its parts are unavailable (i.e. lost, retained by the opponent or by a
third person or the like).
 Country Bankers Insurance vs Lagman

There was this businessman Santos engaged in warehousing business. Santos undertakes to take
custody and safekeep some agricultural products. Under the existing General Warehouse Law, a
person in this kind of business must provide a warehouse bond. So in compliance with the law,
this businessman availed of services of Country Bankers for the issuance of warehouse bond.
Pursuant to standard operating procedure, it required Santos and Mr. Lagman, the agent, the
execution of another undertaking whereby they are made jointly and severally liable to Country
Bankers if ever the latter is made liable for the bond. Santos is the bond principal and Lagman is
the surely. Fast forward, it turned out that the products inside the warehouse could not be found.
As to the reason why, it wasn’t specified on the records. So pursuant to this, Country Bankers was
made liable to pay for the value of bond. So in order to reimburse itself, it turned into Santos and
Mr. Lagman. But Santos could no longer be found, so Country Bankers went after Lagman. The
defense of Lagman was that he could not be liable because there were 2 bonds issued, 1989 and
1990. The 1989 bond is good only for 1 yr and it was novated by 1990 bond. He admitted he
executed a joint and solidary undertaking under the 1989 bond. But in so far as the 1990 bond
which novated the 1989 bond, he wasn’t made to execute a joint and solidary undertaking.
Therefore, Country has no cause of action against him. Because supposedly the cause of action is
based on the joint and solidary undertaking which he executed in so far as the 1989 but he didn’t
execute in so far as the 1990. So during trial, a photocopy of 1990 bond was presented. Objected
under Best Evidence Rule. It was found that there are actually 4 original copies of 1990 bond. But
the proponent was not able to establish the loss of all the 4 originals.
 SC: photocopy may not be allowed. (Excerpt from the Case: When more than one
original copy exists, it must appear that all of them have been lost, destroyed or cannot
be produced in court before the secondary evidence can be given of anyone. A
photocopy may not be used without accounting for the other originals.)
III. PROVE THE CONTENTS OF THE ORIGINAL DOCUMENT (because precisely this is the
subject of the inquiry).
In the absence of the original, how do you prove the contents? Secondary Evidence:
Section 5. When original document is unavailable. — When the original document has been lost
or destroyed, or cannot be produced in court, the offeror, upon proof of its execution or
existence and the cause of its unavailability without bad faith on his part, may prove its
contents by a copy, or by a recital of its contents in some authentic document, or by the
testimony of witnesses in the order stated. (4a)
1. A copy of the original document
2. The recital of contents of document in some authentic documents

Ex: Excerpt of record with the local civil registrar. Nowadays, when you secure a
copy of Marriage contact or birth certificate, in most cases, the local civil registrar will
not issue a certified copy of the Birth or Marriage contact itself that you signed in the
wedding. A birth certificate there is pro forma, filled-up by the attending physician; it is
pro forma like marriage contract. The rule is to forward to civil reg. because he is the
custodian of the records. So if you want a copy, if it is lost, in most cases, local civil
registrar will not issue the certified copy itself, the one that you signed. The local civil
registrar instead will issue a certification. This will contain entries, the parties, date of
wedding and etc. So this certificate will contain excerpt of the important details found in
the marriage contact signed in the wedding or the birth certificate filled-up by the
physician or the midwife. This is the kind of secondary evidence which the proponent
may establish in case he can’t present the original.
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3. Testimony of witness
Contents can now be established on the basis of memory of the witness. This
type of secondary evidence is presented last. Some commentators said no need to follow
order. BUT for our purposes, to be safe about it, follow the order.
2. WHEN THE ORIGINAL IS IN THE CUSTODY OR UNDER THE CONTROL OF THE PARTY AGAINST WHOM
THE EVIDENCE IS OFFERED, AND THE LATTER FAILS TO PRODUCE IT AFTER REASONABLE NOTICE
Section 6. When original document is in adverse party's custody or control. — If the document is in the custody or
under the control of adverse party, he must have reasonable notice to produce it. If after such notice and after
satisfactory proof of its existence, he fails to produce the document, secondary evidence may be presented as in
the case of its loss.
REQUISITES:
1. Prove the existence of the original

-To prove this, you may use the witnesses mentioned in the De Vera case who can prove the fact of
existence and due execution.
2. Prove that it is in the possession of the adverse party
3. Prove that you gave reasonable notice and that despite the reasonable notice, he is unable or
failed to produce the original.
How do you PROVE REASONABLE NOTICE?
a) Avail of Rule 27. Mode of Discovery Procedure.

-File a motion for production of original document believed to be in the possession of the adverse
party.
b) Ask court to issue subpoena duces tecum
-You can do this not necessarily in the form of motion but by simply writing a letter of request to
the clerk of court, requesting the issuance of subpoena to a particular party or person and
specifying the documents that you want to be produced in court.
c) Manifest your request in open court in the presence of the adverse party
-So you may manifest to the court that one of our evidences is exhibit A; we only have a
photocopy and we believe that the original is with the adverse party, we may request your honor
that the other party to confirm that they have the original and if so, present it in court. So this is
enough notice to adverse party. This is the kind of notice that was resorted to in:
 Shangri-la vs BF Corporation
Parties entered into construction contract for the construction of the hotel located in EDSA.
Shangri-la as owner and BF as contractor. It is in their contract that BF would send Shangri-la their
Progress billing and in turn Shangri-la will pay. Alleging that some of the progress billings were
not paid, BF went to court for collection of sum of money. During the trial and in the effort to
prove that indeed they send a Progress Billings, BF presented the 3 Progress Billings. All are
photocopies. One of the arguments of Shangri-la is the admission of the photocopies. It was
argued that the photocopies should not have been admitted pursuant to Best Evidence Rule.
 SC: Best Evidence Rule provides for certain exceptions where the secondary evidence
may be allowed. One is when the original is in the possession of the adverse party. So it
was established in this case that BF was able to comply with the requisites before the
secondary evidence be allowed. It was established that during one of those hearings, the
lawyer of BF manifested that he believed that the original is in the possession of the
adverse party and they requested for the production. The lawyer of Shangri-la said he
would relay the matter to client. When reminded about it, he said he already told his
client and the latter promised that he will return to him but nothing came out of it. SC
said it is enough that the adverse party is given notice for the reasonable
production and despite such notice is unable or failed to produce.
 TAKE NOTE: if the adverse party who is alleged to be in possession of the original is
unable to produce the original, the proponent may now proceed to present secondary
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evidence in the manner provided for in the 1 st instance, loss of the original. It is now
considered lost. (Excerpt from the Case: The mere fact that the original of the writing is
in the custody or control of the party against whom it is offered does not warrant the
admission of secondary evidence. The offeror must prove that he has done all in his
power to secure the best evidence by giving notice to the said party to produce the
document. The notice may be in the form of a motion for the production of the original or
made in open court in the presence of the adverse party or via a subpoena duces
tecum, provided that the party in custody of the original has sufficient time to produce
the same. When such party has the original of the writing and does not voluntarily offer
to produce it or refuses to produce it, secondary evidence may be admitted.)
 The adverse party who failed to produce the original, cannot anymore after presentation
of secondary evidence, assail such secondary by belatedly claiming that original is
redeemed. Estoppel operates.
3. WHEN THE ORIGINAL IS A PUBLIC INSTRUMENT IN THE POSSESSION OF SOME PUBLIC OFFICER OR
RECORDED IN SOME PUBLIC OFFICE.
Section 7. Evidence admissible when original document is a public record. — When the original of document is in
the custody of public officer or is recorded in a public office, its contents may be proved by a certified copy issued
by the public officer in custody thereof. (2a)
 Standing rule: Legal custodians are prohibited from bringing out of their office the originals of the documents in
their custody.
 Your OPTIONS:
1. Ask the Court for issuance of subpoena duces tecum or ad testificandum addressed to that public
officer. This is however discouraged. There’s great waste of time and public money for the custodian
to attend every hearing.
2. Instead of the original, a certified true copy suffices for purposes of presenting evidence.
4. WHEN THE ORIGINAL CONSISTS OF NUMEROUS ACCOUNTS OF VOLUMINOUS RECORDS WHICH

CANNOT BE EXAMINED IN COURT WITHOUT WASTING SO MUCH TIME AND THE FACT SOUGHT TO BE
ESTABLISHED BY THEM ARE MERE GENERAL RESULT OF THE WHOLE INSTRUMENTS
 Instead of these, you may present the SUMMARY of all these records. This may be relevant in cases of bank
fraud consisting bank records.
 REQUISITES FOR THE SUMMARY to be valid:

1. The proponent must first establish the numerous nature or voluminous nature of the documents. Case
to case basis.
2. You should establish that individual original numerous accounts of records were made accessible to
the adverse party to give the latter opportunity to test accuracy during cross examination. How?
Proponent simply has to notify the court that you are presenting a summary instead of individual
voluminous document. And notify the adverse party that such originals are available at a certain place
ready for examination by the adverse party. (Compania Maritima vs Allied Free Workers Union Case)
 Compania Maritima vs Allied Free Workers UnionCase
 Union became efficient with duties so Compania suffered damages. To prove damages, the compania
presented a SUMMARY of the audited financial statements of the shipping company. This Summary was
objected to under BER because the individual original documents upon which the summary was based was
not presented in court.
 The argument of Compania was that under the 4th exception to BER, summary can be sufficient.
 SC disagreed and said for this exception to apply, two requisites must be complied with. (See above
discussion)
 Plaintiff failed to comply with the above-mentioned requisites. Hence summary cannot be allowed as a
secondary evidence.
Other relevant provisions:

Section 8. Party who calls for document not bound to offer it. — A party who calls for the production of a document and
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inspects the same is not obliged to offer it as evidence. (6a)
ELECTRONIC EVIDENCE
 Rules on Electronic Evidence took effect on August 1, 2001.
I. COVERAGE: Before, it was expressly made applicable ONLY to civil actions and administrative or quasi-judicial
proceedings. Not to criminal cases. BUT after a year, October 14, 2002, this time, it was expressly made applicable also to
criminal cases.
 Rustan Ang vs. CA

 Criminal case for Violation of VAW-C law between former lovers who broke up but the man cannot move on so he
regularly sent nasty text messages or lustful photo messages to the girl.
 Girlfriend went to court and presented the evidences of lustful photo messages.
 Issue: WON the evidence was admissible
 SC: The clueless court ruled that Rules of Electronic Evidence finds no application to criminal cases. Crime was
committed in 2005, decision was in 2010. So obviously, amendment was already in force.
 PP vs Enojas
 SC correctly ruled this time, pursuant to amendment in 2002, Rules on Electronic Evidence applies to criminal cases
as well. This is a murder case resulting to a death of a policeman.
 During the trial, prosecution presented the transcript of the text messages between Nuez and other robbers. This
was objected to being a criminal case. But SC said, it was admissible.
II. COMMON FORMS.
1. Digital Images sourced out from DigiCams or Phones with Cameras

2. Digital Images sourced out from Digital Video presentation (Projectors/Ppt. Presentation)
3. Digital Images sourced out from Scanned Process
4. Electronic Mail
5. Text Messages
6. Voice Messages
 Take Note: Electronic Evidence may be Object or Document, should be treated in the same manner as ordinary
object or documentary evidence EXCEPT for specific variations. Electronic Evidence must also comply with RULES
ON ADMISSIBILITY like:
a) Must be relevant
b) Must be admissible
c) Must be competent (complying with exclusionary rules)
d) Duly authenticated
e) Comply with Best Evidence Rule if a document.
RULE 2. SECTION 1(h). “Electronic document” refers to information or the representation of information, data, figures,
symbols or other modes of written expression, described or however represented, by which a right is established or an
obligation extinguished, or by which a fact may be proved and affirmed, which is received, recorded, transmitted, stored
processed, retrieved or produced electronically. It includes digitally signed documents and any print-out or output, readable
by sight or other means, which accurately reflects the electronic data message or electronic document. For purposes of
these Rules, the term “electronic document” may be used interchangeably with electronic data message”.
One COMMON DENOMINATOR: ELECTRONIC
For purposes of the Best Evidence rule, to consider a document as electronic document, ALL the PROCESSES must be
ELECTRONIC.
 The processes mentioned here must be free from any manual intervention. The moment manual intervention
supervenes, it cannot be considered as an electronic document. This is the ruling in the case of NPC vs
Codilla:
NPC VS CODILLA
 This case involves an action filed by NPC arising from an incident where a foreign vessel rammed into
one of NPC’s barges. During the trial, NPC presented various documents, but NPC formally offered in
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evidence only the photocopies of their documentary exhibits. This was objected to by the defendant
under the BER. The court gave NPC time to produce the original but NPC did not bother to care. The
lower court ruled against NPC. On appeal, NPC argued that under the Rules on Electronic Evidence,
there is no more original or copies to speak of, all are considered originals.
 The SC held that by its definition, the contents must be processed electronically. In this case,
the document in question appears to have been manually signed. By no stretch of the
imagination can a person’s signature affixed manually in the photocopies be considered as
information ELECTRONICALLY received, recorded, transmitted, stored, processed, retrieved or
produced. The presence of the MANUAL signature as PART of the CONTENTS of these
documents disqualifies the document from being electronic. Not being electronic, it should be
treated as an ordinary paper-based document, and under the BER, a photocopy can only be
allowed as secondary if the original is accounted for, which NPC failed to do in this case.
 SC even went on to castigate NPC because what happened there was that NPC in their last
ditch effort to present the original, asked the SC that they be allowed this time to present the
original. SC said that NPC was given ample opportunity to present the original but NPC was
bull-headed so it is already late in the day for NPC to submit the original.
 If it is manually signed, cannot be considered electronic document.
If the contents of the electronic document is the subject of an inquiry, the original electronic document must also be
presented.
Before the advent of the electronic evidence rule, electronic evidence was already in existence. How did they do it?
 PEOPLE VS. BURGOS: we were taught how the past dealt with the electronic evidence. This case involves the
criminal prosecution of alleged violation of the anti-subversion law, Burgos was arrested and charged with the
crime. When his rented house was searched and during the search, several alleged subversive materials were
recovered in the premises. Some of these materials were computer diskettes. The prosecution theorized that the
diskettes contained computer data which were subversive. It was then critical for the prosecution to demonstrate to
the court that the data inside was indeed subversive. What the prosecution did was to move that they be allowed to
demonstrate the inside of the diskettes. Bringing their computer in the court, have the data inside displayed in the
computer screens for the court to view.
 That is the traditional way of presenting electronic evidence. You do not have to bedevil yourselves with this
traditional way of doing things. It is now addressed by the electronic evidence rule.
RULES ON ELECTRONIC EVIDENCE (RULE 4)

SECTION 1. Original of an electronic document. – An electronic document shall be regarded as the equivalent of an
original document under the Best Evidence Rule if it is a printout or output readable by sight or other means,
shown to reflect the data accurately
SECTION 2: Copies as equivalent of the originals. – When a document is in two or more copies executed at or about the
same time with identical contents, or is a counterpart produced by the same impression as the original, or from the same
matrix, or by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent techniques which is
accurately reproduces the original, such copies or duplicates shall be regarded as the equivalent of the original.
Example: Email – equivalent to an original, you can present the printout without accounting for the digital data stored in your
computer.
WHAT IS THE ORIGINAL OF AN ELECTRONIC DOCUMENT?
1. The digital data as stored inside the diskette, USB, or computer.

 Before: You may show it by bringing the computer and displaying the contents before the court.
2. A printout or output readable by sight or other means, shown to reflect the data accurately.
(regarded as the equivalent of an original document)
 Now: you may choose to present a printout of the electronic document.
3. Copies as equivalent of the originals:
TWO TYPES OF COUNTERPARTS OR COPIES REGARDED AS EQUIVALENT OF THE ORIGINAL:
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i. When the electronic document is in two or more copies executed at or about the same
time with identical contents all the copies of the original of the electronic document are
regarded as original.
 Example: an email sent to numerous recipients. All these email copies are regarded as
original and if a dispute arises as to the contents of this email, any of these copies may
be presented in court without accounting for the others.
ii. A counterpart produced by the same impression as the original, or from the same
matrix, or by mechanical or electronic re-recording, or by chemical reproduction, or by
other equivalent techniques which accurately reproduces the original, such copies or
duplicates shall be regarded as the equivalent of the original.
All these counterparts or copies mentioned in the second group are photocopies or counterparts which are
merely reproductions of the original but the common denominator is:
a) It should be based from the same matrix
b) Impression
c) Or by this mechanical, electronic or chemical techniques that reproduce the original
accurately
Example 1: Ms. Burdeos received an E-mail (love letter) from Mr. Alo. Because Ms. Burdeos is too insanely proud of
it, she saved it in her diskette, now USB. She goes to class and brags about it: “I have here in my usb, a copy of Mr.
Alo’s love letter and as proof, I want you to save it in your USB”. You now have several copies in the USBs of
everyone. All these copies stored in everyone’s USBs are counterparts or copies produced by the same impression,
matrix as that of the original. Or they are copies or counterparts produced by electronic, mechanical, chemical or
any other equivalent technique.
Example 2:, you also saved an electronic document. You used a recordable medium and burned it, like CD-R or
DVD-R. They are electronic documents which are burned through some electronic recordable medium. That’s also
another form of a counterpart or copy of the original, produced from the same matrix or same impression or
produced by mechanical, electronic, chemical reproduction or other similar techniques
Example 3: Your electronic documents are scanned or converted into digital format/form. That’s also another kind
of counterpart or copy regarded under Section 2 as equivalent of the original.
“FACSIMILE COPY”
What about a FACSIMILE COPY?
Facsimile copies are considered electronic subject to the qualification provided for under the case of MCC Industrial Sales vs.
Ssanyong Corporation.
MCC Industrial Sales vs. Ssanyong Corp.
 MCC Industrial Sales is a domestic corporation engaged in the business of importing and selling stainless steel bars.
One of the suppliers of its products is Ssanyong, an international trader. Ssanyong also, sourced their products from
manufacturers abroad. Over the years, they entered into various transactions and their practice was for Ssanyong
to send by fax, the invoices detailing the specifications, design, qualities and quantities of the products ordered.
And if MCC Sales approves it, then their officer would affix his signature to indicate conformity to the invoices. MCC
Sales would open a letter credit before the items are shipped to the Philippines. One of these transactions bugged
down for failure of MCC Sales to open the required letter of credit but in the meantime, Ssanyong already ordered
the products from its suppliers/manufacturers. Then Ssanyong, because of the delay of the shipment of the items,
incurred some cost for storage of the items. So to cut the long story short, Ssanyong was forced to go to court to
collect damages arising from the alleged breach of contract.
 During the trial and in order to prove the existence of the contract, Ssanyong presented a photocopy of the
facsimile copy of the invoices. Not the original but the photocopy of the facsimile copy. The issue on the
admissibility of the photocopy of the facsimile copy of the invoices subject of the case was brought to the fore
because it was objected to under the BER. Ssanyong argued that under the new rules of electronic evidence,
photocopies of the facsimile copies are now considered as functional equivalents of the originals.
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 What we have here are photocopies of the facsimile copies, but in order to resolve the issue whether the photocopy
of a facsimile copy are admissible under the BER, we need to determine first whether, in the first place, a facsimile
copy is an electronic document because if it is, the photocopy may be considered a functional equivalent of the
original.
 Critical issue: WON a facsimile copy can be considered as an electronic document
 SC: The facsimile copies, subject of the case, are not electronic evidence. Although the SC said, not all
facsimile copies are not electronic because in this case, SC distinguished TWO KINDS OF FACSIMILE
PROCESSES/MACHINES:
a) Traditional or ordinary, where the information originated from an ordinary paper-based

document fed into the machine, scanned, sent through the telephone line and reprinted at the
receiving end.
b) Computer-generated fax machine: machine where the original information/data is
electronically generated, does not originate from a paper-based document but already electronic
then sent to the other end through the telephone line resulting in a facsimile copy
 The ordinary, traditional type of facsimile machine which originated from an ordinary paper-based document
resulting in a facsimile copy also in a paper-based form, cannot be considered electronic.
 SC cited TWO JUSTIFICATIONS:
A. The obvious purpose of the framers in enacting the Electronic commerce act and then the electronic
evidence rule is to promote a paperless writing as the functional equivalent of an ordinary
paper-based document. It should be treated similarly in all respects.
B. The Model Law mentioned a list of electronic processes which include "telegram, telex, telecopy". SC noted
that the last phrase "Telecopy, telex, telegraph" was deleted/not adopted in our own definition of
Electronic Evidence.
DISCUSSION:
FIRST REASON: In this case however, SC said, the facsimile copies in question as received originated from an ordinary
paper-based document (the invoices), which were scanned and then, sent through the telephone line and reprinted at the
other end. In other words, it started with an information/data originated from an ordinary paper-based document and ended
up with an ordinary paper-based facsimile copy as received. This is contrary to the obvious purpose of the rules which is to
promote a paperless environment. What started out as ordinary will result to an ordinary document in this context.
SC said if the source of the data/information is purely electronic (like in the case of a computer-generated fax machine) the
resulting facsimile copy will be considered as electronic because it did not start with a paper-based document.
The ruling in Ssanyong was reiterated in Torres vs. CSC: Indeed, ordinary facsimile copies are not electronic evidence.
 SC said, since even the original facsimile copy is not an electronic evidence, then obviously, there is no sense
considering a photocopy as original under the electronic evidence rule. In the first place, even its original is not
electronic. And so since it is just an ordinary paper-based document, then for purposes of admissibility, it
should comply with the BER. Unfortunately, Ssanyong failed to comply with the BER.
QUESTION: if the data or information originated from an ordinary paper-based document and subsequently subjected to
electronic, mechanical or chemical processes for purposes of reproduction, what will become of the resulting copy?
I’m referring to the process of SCANNING. The ordinary scanning procedure is that there is a paper-based document, feed it
to the machine and then a digital image of the paper-based document will be created in the process. Judging it in the light of
the Ssanyong ruling, it would appear that the resulting copy will not be considered electronic.
For example, ordinary paper-based document, you scan it, and then a digital image is created and you print it out. You will
then have another paper-based copy resulting from the scanning. There is parallelism here with facsimile transmission as
what happened in the case of Ssanyong. So to be consistent with Ssanyong, an argument can be made that the resulting
printout, which is the same as a facsimile transmission copy cannot be considered electronic because it started with an
ordinary paper-based document.
17
But this question has already been answered in the many cases involving election protest: Mayor Maliksi and
Liwayway Vinzons-Chato. All these cases involved the admissibility of picture images of ballots created through
the process of scanning using PCOS machine (Precinct Count Optical Scanner).
CHATO VS. HRET

 Liwayway Vinzons-Chato ran for representative of Camarines Norte, but she lost in the elections. But
typical of a Filipino politician who would either proclaim victory or decry being a victim of electoral fraud,
she filed an election protest, an initial recount of votes was conducted. The other candidate noticed that
the result of the initial recount, Chato was able to establish a pattern of fraud. Initial tally showed that
Chato was actually ahead in the counting. So the other party moved that the recount should not be based
on the actual ballots but on the picture images of the ballots stored in the PCOS. The other candidate
moved that the picture images stored in the PCOS be printed and should be used as basis for the recount.
 The issue there is whether or not the printout of the picture images of the ballots can be considered as
official ballots and therefore can be used in the recount of the votes without accounting for the actual
paper-based ballots. Because the origin of the picture messages were paper-based ballots, the one filled-
up by the voters at the precinct level.
 SC: Under the rules on electronic evidence and even in the rules promulgated by the COMELEC,
the picture images of the paper-based ballots as scanned and stored and printed out are
functional equivalents of the paper-based ballots. So therefore, they are considered as equivalent
of the original and considered official ballots.
 TN: Print-out resulted from a scanning process, the origins of which are paper-based ballots
which are not electronic and yet, in these cases, SC said that printouts of the picture images
created through the scanning of the paper-based ballots are electronic evidence.
So this debunks any argument which will be based on the ruling in the case of Ssanyong. The first reason advanced
by the SC in ruling that the facsimile transmission copy is not an electronic. Because there really is parallelism
between facsimile process and scanning. In fact, facsimile transmission presupposes a scanning process.
SECOND REASON Advanced by the Supreme Court. Our definition on Electronic data message, our own EER and Electronic
Commerce Act are patterned from the MODEL LAW adopted by the UN Commission of International Trade Law (UNCITRAL).
The Electronic Data message here is "as something that is processed electronically". The Model Law mentioned a list of
electronic processes which include "telegram, telex, telecopy".
SC noted that the last phrase "Telecopy, telex, telegraph" was deleted/not adopted in our own definition of Electronic
Evidence. Taking cue from this omission/deletion, SC concluded that the intention of the congress was really to
exclude them from being considered as Electronic Data. SC said that “telecopy” there refers to facsimile
transmission.
So the RULE NOW is:
 If the resulting copy as received originated from an ordinary paper-based document and scanned and sent thru the
use of ordinary facsimile machine, the controlling doctrine is that of SSANYONG, therefore cannot be considered
as ELECTRONIC. But this rule should again only refer to FACSIMILE.
 Because notwithstanding the parallelism, SC in other cases said that a copy/document resulting from a scanning
process is considered as ELECTRONIC.2
What happens now when you received an email, you print it out and you have a printout of an electronic document which is
considered by section 1 as a functional equivalent of the original? In other words, the PRINTOUT of the EMAIL is
SUBJECTED TO SOME MECHANICAL, ELECTRONIC, CHEMICAL REPRODUCTION?(sec.2, Rule 4)
ex. Mr. Erojo is a writer, wrote a masterpiece on Kamasutra. He printed a hard copy of his Kamasutra out of the soft
copy from his computer, and photocopied it many times. These PHOTOCOPIES can be argued as functional
2
So, remember: ORDINARY FACSIMILE (Traditional) – NOT electronic (Ssanyong); SCANNING – Electronic (Election cases)
18
equivalent of the original because they are a “counterpart produced by the same impression or same matrix or by
mechanical or chemical reproduction...(Sec.2)”. So, they are functional equivalent of the original
You might say that the hard copy is a PAPER-BASED. But that can be an inaccurate proposition because it can be argued that
the HARD COPY is NOT REALLY PAPER-BASED because the SAID HARD COPY is an ELECTRONIC DOCUMENT IN THE FIRST
PLACE(sec. 1, Rule 4). The SOFT COPY WAS PRINTED out and under sec.1, they are Electronic Document in the first place.
Again, the HARD COPY from SOFT copy is ALREADY AN ELECTRONIC DOCUMENT!
Atty. T: Ssangyong is a special case. I have a feeling that these photocopies are really functional equivalent of original.
So again, if a printout like these NOTES your printout generated from your computer which is electronically produced, the
printout is in turn reproduced into many copies thru the processes mentioned in sec. 2, so long as the copies accurately
reflect the data or information, these copies can be considered as functional equivalent of the original.
How do you AUTHENTICATE ELECTRONIC EVIDENCE?
Electronic Evidence, whether presented as Object or Documentary, also require authentication for purposes of
admissibility.The most difficult part of admitting Electronic Evidence is the Authentication. TN of that.
RULES (offered either as DOCUMENTARY OR OBJECT EVIDENCE):
A. ELECTRONIC EVIDENCE OFFERED AS DOCUMENTARY EVIDENCE (SEC.2 RULE 5)
1. You may authenticate an Electronic Document by Evidence that it was DIGITALLY SIGNED BY THE PERSON
WHO IS PURPORTED TO HAVE SIGNED IT.
- We have this issue on digital signature. Again, we have 2 views here on the "LTO digital signature". I am more
inclined that such process is still manual and not the digital signature contemplated by the rules.
2. You may authenticate by evidence that other APPROPRIATE SECURITY PROCEDURES OR DEVICES as may be
authorized by SC or Law for authentication of Electronic Documents have been APPLIED to the document.
- As of now, no rule or law yet as of now.
3. Any other evidence, so long as the court is satisfied as to the INTEGRITY AND RELIABILITY of the Electronic
Evidence.
- This is the one which is being used. Digital Signature is not so much used.
B. ELECTRONIC EVIDENCE OFFERED AS OBJECT EVIDENCE: (RULE 11)
ex. audio, video recording. The purpose is not to prove its contents but you want that recording TO BE HEARD BY THE
COURT. Not as documentary, but object because it’s subjected to the senses of the court.
1. Someone who caused the recording

2. Someone who can testify as to the accuracy of the recording
 PEOPLE VS. NAVARRO- Police battered the reporter to death. One of the pieces of evidence presented was the
audio recording. The admissibility of the audio recording was assailed.
 But SC said it was properly AUTHENTICATED by the other reporter RECORDING IT.
 SC said you ONLY PROVE that:

a) The witness was the one who caused the recording
b) The one being played in court was the very same audio recording he recorded.
19
c) The voice captured by the recording is the voice of the person the voice is claimed to belong
to.
- these are the only matters that the authenticating witness may testify on an audio recording – that’s
authentication!
 In PEOPLE VS. NAVARRO, this was decided before the effectivity of the rules in electronic evidence. The
SC mentioned the recorder as the competent witness to authenticate, but if you look at the rules in
electronic evidence, not only the recorder can be the possible witness but anyone who can testify as to the
accuracy of the recording. Just the same, the matter required that the person depicted in the recording is
really the person or the voice which it is claimed to be. That’s authentication.
“EPHEMERAL COMMUNICATIONS” (SEC. 11)
“TEXT MESSAGE” - Text message falls under the classification of the so called ephemeral electronic communications.
These are also forms of electronic evidence communications. The following are the SPECIFIC EPHEMERAL
COMMUNICATIONS MENTIONED IN THE RULES:
a. Telephone conversation;
b. Text messages;
- But text message is retained/recorded. You can even get transcript of text messages. The
telecommunication corporations can issue transcript of text messages. (sir doesn’t understand why
text messages are considered as ephemeral, maybe because when this rule was promulgated, text
messages are not retained)
- In various jurisprudence, the SC is consistent that text messages are ephemeral electronic
communication.
- HOW TO AUTHENTICATE? In People vs Enojas, a text message maybe authenticated by the party
to the communication or anyone who is aware of the communication. In this case, the witness
who authenticated the exchange of text messages between the policeman who posted as Mr. Enojas
and the other party in the other line, was a party to the exchange of the text messages. SC said, that
witness was competent to authenticate the transcript of text messages between the police and the
other suspect.
c. Streaming video/streaming audio;
d. Chat sessions; and
e. Other similar electronic communications evidence of which is not retained or recorded
- As the term suggests, it is not permanently recorded. It is not retained in some form of saving device.
BASIC FACTS TO ESTABLISH IN AUTHENTICATING ELECTRONIC EVIDENCE (ex. libel)
PARTIES TO THE COMMUNICATION3
One is the parties to the communication. There is difficulty in identifying the sender or receiver such as when
the other party uses an alias/other name or when the other end denies ownership of the account. It would only be easy for
the offended party to call witnesses when the account used is known to many.
The simplest way if you happen to defend someone who is charged with any wrongdoing and the evidence against
your client consists of electronic like email, facebook and so on is to deny authorship which is the safest defense.
3
This is not a “kulang” list as per Sir’s discussion. After “parties to the communication”, he proceeded to Parol Evidence. We are not aware of any other
enumeration about this is in the past transcripts...
20
 In the case of NUEZ VS. APAO, the respondents there admitted that the text messages originated from there
cellphone. It would have been difficult without the admission. But they made it easier for the court to confirm or to
find them guilty because of their admission. So deny, let the other party prove it.
SIR: “tip of the day”: If you use a cellphone, make sure it is PREPAID. I have a client, obviously bitter since her boyfriend left
her for another woman. Because of the wrath of a scorned woman, she kept of texting the girlfriend nasty and defamatory
text messages. So, she got sued. It turned out that the messages really turned out from her POSTPAID account so I told her
“You really are in deep trouble, I don’t think the court will not award the damages. Let’s pray that the amount would be
tolerable. I am not confident that I could take you off the hook, the evidence is overwhelming.” The telephone company
(SMART) really released the transcript. The representative of SMART executed a certification and even testified during
deposition taking that this name and this account really belongs to a client and these messages really originated from the
account. That’s in the BAR. But in our country, we don’t look at litigation as a way of making fortune unlike in the US where
if you happen to burn your legs if you bought coffee at McDonald’s and burned a part of your body. For that reason or
another you get millions in damages but the reality in our jurisdiction is our courts would only award minimal. Consuelo de
bobo! Not even enough to cover litigation expenses. So that’s the only assurance that I gave to my client. Lesson there is:
do not use POSTPAID. Prepaid!! Difficult to trace.
21

Evidence Midterm Notes Part 2: EVIDENCE 404 "A Collaboration by Friends "

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EVIDENCE 404 “a collaboration by friends ” 2014-2015

EVIDENCE MIDTERM NOTES PART 2

I. BEST EVIDENCE RULE

I. BEST EVIDENCE RULE

Section 4. Original of document. —

WHAT is the PRIMARY PURPOSE of Best Evidence Rule?

What is a DOCUMENT in the context of Best Evidence Rule?

PEOPLE vs HONORABLE TAN

Issue: Are the triplicates of the receipts admissible as evidence?

1. The document or writing is merely collateral to the fact in issue

1. THE DOCUMENT OR WRITING IS MERELY COLLATERAL TO THE FACT IN ISSUE

- This principle is illustrated in the case of AIR FRANCE v CARRASCOSO

- The same principle was applied in the case of ARCEO v PEOPLE

5. IF THE OBJECTION TO THE ADMISSION OF AN OTHERWISE INADMISSIBLE EVIDENCE IS WAIVED

 This is the ruling in the case of DELA CRUZ v CA:

REQUISITES BEFORE SECONDARY EVIDENCE MAY BE ALLOWED IF ORIGINAL DOCUMENT IS LOST,

ii. Prove the fact of loss.

1. Either of the parties to the lost original document.

2. A witness to the execution to the lost original document or contract.

3. If the document happens to be a public document because it has been notarized by a

II. PROVE THE FACT OF LOSS.

1. Any person who is personally aware of the fact of loss.

 Country Bankers Insurance vs Lagman

1. A copy of the original document

2. The recital of contents of document in some authentic documents

1. Prove the existence of the original

How do you PROVE REASONABLE NOTICE?

a) Avail of Rule 27. Mode of Discovery Procedure.

4. WHEN THE ORIGINAL CONSISTS OF NUMEROUS ACCOUNTS OF VOLUMINOUS RECORDS WHICH

 REQUISITES FOR THE SUMMARY to be valid:

 Compania Maritima vs Allied Free Workers UnionCase

Other relevant provisions:

inspects the same is not obliged to offer it as evidence. (6a)

 Rules on Electronic Evidence took effect on August 1, 2001.

 Rustan Ang vs. CA

II. COMMON FORMS.

1. Digital Images sourced out from DigiCams or Phones with Cameras

One COMMON DENOMINATOR: ELECTRONIC

RULES ON ELECTRONIC EVIDENCE (RULE 4)

WHAT IS THE ORIGINAL OF AN ELECTRONIC DOCUMENT?

1. The digital data as stored inside the diskette, USB, or computer.

TWO TYPES OF COUNTERPARTS OR COPIES REGARDED AS EQUIVALENT OF THE ORIGINAL:

What about a FACSIMILE COPY?

MCC Industrial Sales vs. Ssanyong Corp.

 Critical issue: WON a facsimile copy can be considered as an electronic document

a) Traditional or ordinary, where the information originated from an ordinary paper-based

 SC cited TWO JUSTIFICATIONS:

CHATO VS. HRET

So the RULE NOW is:

How do you AUTHENTICATE ELECTRONIC EVIDENCE?

RULES (offered either as DOCUMENTARY OR OBJECT EVIDENCE):

A. ELECTRONIC EVIDENCE OFFERED AS DOCUMENTARY EVIDENCE (SEC.2 RULE 5)

- As of now, no rule or law yet as of now.

B. ELECTRONIC EVIDENCE OFFERED AS OBJECT EVIDENCE: (RULE 11)

1. Someone who caused the recording

 SC said you ONLY PROVE that:

“EPHEMERAL COMMUNICATIONS” (SEC. 11)

BASIC FACTS TO ESTABLISH IN AUTHENTICATING ELECTRONIC EVIDENCE (ex. libel)

PARTIES TO THE COMMUNICATION3

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