last meeting: Evidence

Rules on Electronic Evidence (REE)
Functional equivalence
Non-discrimination

Section 1: scope:
-electronic document (ED)
-electronic data message (EDM)

Section 2: cases covered
Civil actions
Civil proceedings
Quasi-judicial
Administrative

Section 3:
-Supplemented: by rules of court

When it comes to admissibility:
-still Rules of court

When it comes to AUTHENTICATION:
-REE

*but REE also provides rules of admissibility: BER

Functional equivalent doctrine:
Rule 4.1

Rule of non-discriminate: we don't discriminate: deemed to include an electronic document if refers to writing, document….
-still preserve privileged nature even if became electronic

ED vs. EDM
EDM: 4 verb, 3 adverb
ED: 7 verb, 1 adverb (electronically)

Rule 4: BER
R4.1: when regarded as functional equivalent:
*printout
*output readable by sight or other means + it could reflect the data accurately

Can the printout be also readable by sight…?
Oo. Basta dapat it must be something that must be READ = DOCUMENT (WRITTEN expression)

When you say writing, does it have to be in a piece of paper (printout and output)?
VAA: readable by sight or by other means
e.g. laptop screen, brail
…readable by your eyes

COPY equivalent of the original
*SAME IMPRESSION AS THE ORIGINAL
*SAME MATRIX
*BY MECAHNICAL/ELECTRONIC RERECORDING
*BY CHEMICAL REPRODUCTION
*BY OTHER EQUIVALENT TECHNIQUES WHICH ACCURATELY REPRODUCES THE ORIGINAL

Which one is broader:
EDM: Information - BROADER!!!
ED: Information and representation, provided…3 things it creates

e.g. the video of Hayden Kho in USB
-EDM
-is it ED? It can prove and affirm a fact
…that is why ED is interchangeable with EDM

No definition of what is electronic! MCC gives clues to what is electronic
MCC industrial Sales
F: original pro-forma invoices and photocopy of the invoice sent through fax by MCC (not paid by Samyong)
-Samyong had 2 kinds of evidences: the originally faxed invoices and the photocopy - but they did not present both!!!
-when something is faxed to you, there's an "original" from the main source (the person who sent the information)
I: WON the fax copies (the ones received by Sanyong) are electronic documents under REE
(MCC argues that ephemeral electronic messages or communications include a telecopy, and those documents are telecopies)
VAA: Argument on it being ephemeral is out of place: it is not ephemeral!!!

H: FAX COPIES ARE NOT ELECTRONIC DATA MESSAGE NOR ELECTRONIC DOCuMENTS
Congress: wants the REE to cover paperless transactions
1. RA 8792: covers electronic commercial transaction
-this was discussed because the allegation was that this involved a electronic transaction
-discussion of history of the law: law is based on UNCITRAL MODEL LAW
-it was deleted, but was re-included in the IRR: (definition of a fax)
-but this was deleted in the REE!
Facsimile: tele-copy - you send a copy through a telephone line

What's wrong if the IRR included it back?
IRR should not go beyond the law it seeks to implement, therefore, VOID!

2. The law wanted to cover only paperless transactions
-facsimile machine:
*scan the image
*it would be transcoded through the modem
*then it would be sent using the cable
*the receiver would receive a printout

When it was scanned, in effect what did it do?

DIGITIZATION: converting the object scanned into bits and digits
"It works by digitizing an image—dividing it into a grid of dots. Each dot is either on or off, depending on whether it is black or white. Electronically, each dot is represented by a bit that has a value of either 0 (off) or 1 (on). In this way, the fax machine translates a picture into a series of zeros and ones (called a bit map) that can be transmitted like normal computer data. On the receiving side, a fax machine reads the incoming data, translates the zeros and ones back into dots, and reprints the picture. A fax machine is essentially an image scanner, a modem and a computer printer combined into a highly specialized package. "
-uses binary system
-the bits are the one transported through the phone line…

*the thing received in the other side was not ED , even if it became digitized…?
If you use a digital camera, it takes an image and stores it…
If you go through the ultrasound, whether you print the picture of the baby or not…
If you go through the scanner in the airport, nothing is inputted but there's a machine in a software
…all of these are EDs, but why are electronic and fax where not?
These all were created electronically. A fax came from the piece of paper, its contents were converted to digital information.
-it appears that if something from the outside world is recorded and digitized DIRECTLY to something, converted to bits etc, it is ED. But if it uses something like a paper to record the information or contents from the outside world, and then convert the information from the medium, i.e. the paper, it is not ED…

VAA: does not think it's sound
e.g. if there's a tape and you record something from the radio in the tape, then convert it to digital file through wires blah blah…
It appears that this is not an ED since you use a medium to record the information!!! (CONVERSION THEORY)

Strict interpretation of MCC: MCC only applies to pieces of paper because the aim of the law is to exclude paperless transactions from the scope of the law...

Can the pro-forma invoice "copy" (the one received by Sanyong - court said that it was a copy because the original was in the Philippines) be admissible under any other rule aside from REE?
VAA: still the original because it is what Ssanyong received! The issue is WHAT SSANYONG RECEIVED! The contents of what was received!!!

Rule 5: Authentication of ED: "private electronic document" (not defined, so does this mean that if PUBLIC electronic document, no need to authenticate? Why?)
1. Digitally signed: refers to system: ASSYMETRIC or PUBLIC CRYPTOSYSTEM
Is a Digital signature an electronic signature?
YES. Includes an electronic signature
-but sabi to authenticate, DIGITAL SIGNATURE LANG gagamitin!
Assymetric or public cryptosystem: two keys
-the system of DS implies sending: but do you have to send it for digital signature to appear?

Digital signature > applied to an electronic document through a PRIVATE KEY (applied from a certificate of authority)> then it is encrypted, cannot be read WHY ENCRIPT? So that it would be secured when sent!!! How to decrypt it: by applying the PUBLIC KEY (which corresponds to the private key; it is published in the website of the Certificate of Authority together with your name)

Assymetric: uses a key pair (private and public key)

Shell: the most basic computer in the computer network; from which the programs in the network…

2. Evidence that other appropriate security procedures or devices as may be AUTHORIZED BY THE SC
3. Evidence showing integrity and


RULE 8 - exception to hearsay…
What are business records
(b) "Business records" include records of any business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit, or for legitimate or illegitimate purposes.

Section 1. Inapplicability of the hearsay rule. – A memorandum, report, record or data compilation of acts, events, conditions, opinions, or diagnoses,
made by electronic, optical or other similar means
at or near the time of …
or from transmission or supply of information … (to whom? Interpretation 1: the encoder would provide the information…)
by a person with knowledge thereof, and

e.g. ENCODE
Secretary encoded the transaction between her boss and another businessman after the transaction
-she has personal knowledge of the transaction
-interpretation 1: the information was CREATED when the secretary encoded the document which became the business record. It becomes hearsay because when the business record would be presented before the court, it is hearsay because the secretary is not presented before the court

EMAIL
The sender of the email supplies the information. But the information is just temporarily supplied (when you're online).
So the email (the one online) is the evidence itself, you can present it before the court and it would be an exception to hearsay

e.g. what about the receipt in a department store… pasok sha sa "at…the time of transaction"
- Could it be "near the time of the transaction" but if it is so, the encoder must be the one who was involved or who has knowledge of the transaction…

-the business record should be testified on by the CUSTODIAN or other QUALIFIED WITNESS

WHEN PRESUMPTION OVERCOME (sabi ni ma'am, should not be "presumption" but ADMISSIBILITY):
*source (the encoder/information-provider) is untrustworthy
*method or circumstances of preparation, transmission …

EXAMINATION OF WITNESS:
-possibility of a witness testifying electronically…
REQUIREMENTS OF AN ELECTRONIC TESTIMONY


Is an email document (not the email message)automatically an ED?
Under MCC, it is not: if it was scanned piece of paper or photograph! (as long as no conversion made)

Note: basta 2 theory under MCC
1. Paper-based theory: as long as it is paperbased…plus converted
2. Conversion theory (strict theory): as long as it is converted…

EPHEMERAL EVIDENCE
"Ephemeral electronic communication" refers to telephone conversations, text messages, chatroom sessions, streaming audio, streaming video, and other electronic forms of communication the evidence of which is not recorded or retained.
Sa AUDIO, VIDEO and SIMILAR EVIDENCE:
-are these ELECTRONIC audio, video…
YES. Under REE eh…
• Why was it separately treated eh di naman pala ephemeral ang video and audio (kasi nga pede naman i-record eh)

VAA: Rule 11 gives you a rule with respect only to ephemeral evidence!!!
As long as video or audio are electronic, the rules of electronic document apply!

*technology develops so fast that REE becomes obsolete even before it was enforced!!!

NUEZ vs. APAO
-used text messages as evidence to show extortion

NPC vs. CODILLA
-photocopies are not electronic documents in REE
-photocopies of handwritten documents…
"By no stretch of the imagination can a person’s signature affixed manually be considered as information electronically received, recorded, transmitted, stored, processed, retrieved or produced. "
VAA: when you photocopy, exposure to light lang ng chemicals

RULE On EXAMINATION OF A CHILD WITNESS
-aims for the examination of the child witness to be child-friendly
*aids, courtroom procedure

Example of persons who would help the child
*Facilitator: pose questions to a child
*Interpreter
*Support person (maximum of 2)
*Guardian

Who must testify ahead?
If witness din sila: interpreter and support person

Techniques to help a child
1. Court atmosphere (SEC13)
2. Hearsay statement: basta may application
What form: in depth investigative interview…right after child abuse - not yet during a case...
(i) “In-depth investigative interview” or “disclosure interview” is an inquiry or proceeding conducted by duly trained members of a multi-disciplinary team or representatives of law enforcement or child protective services for the purpose of determining whether child abuse has been committed.
-hearsay…
3. Testimonial aids (SEC16)
4. Iba naman EMOTIONAL SECURITY ITEM
5. Leading questions allowed
6. Child allowed to narrate (narrative)

Sec30: Sexual abuse shield rule
a. Previous sexual behavior: part 2 of RIAA
b. Sexual predisposition: refers to promiscuity, liberated: prevent undue prejudice


DNA EVIDENCE
-establishes:
-IDENTITY
-Kinship

3 rules of Kinship
*If exclude the putative parent from paternity: CONCLUSIVE proof of non-paternity
*If DNA test results' value is less than 99.9%: CORROBORATIVE EVIDENCE of paternity
*If DNA test results' value is 99.9% or greater: DISPUTABLE presumption of paternity

DNA
-it is unique to a person
-biological sample: from an organic source (living part of your body)

DNA TESTING
GR: with court order
X: by government agencies
-post conviction DNA testing: only if it would result in the reversal or modification of the judgment of conviction

EXERCISES: The midterms!!!P was an abusive policeman who was also a wife-batterer. One day while his wife W was talking to Mrs. G on the cellphone he barked his usual orders for an immediate meal. When he heard W murmur; ''O, mare sige na ang aga aga pero may sumpong yata si compare me.' P slid into a fitful rage and pinted his gun at W, who then began to scream in terror. Begging P repeatedly not to hurt her, not t shoot her, saying 'P maawa ka, wagg mo ko saktan, wag mo ko barilin' to which P heatedly responded with recriminatins about her disloyal whistleblowing to G. Unbenknown to P, G was talking to W on her (G's) speakerphone, such that her G's law stydet daughter LS was hearing everything. LS immediately switched on her audio casstte recorder and caught the continuing harange on tape. Unfortunately in her panic W, tried to shield herself with her arms which P misinterpreted as intending to grapple with the gun so he swung at the arms of W. The gun accidentlly went off, killing W instantly. LS shut off the tape at once and she rushed to the residence of P and W.
At the trial against P for murder, the prosecution was trying to present the testimony o G that W repeatedly begged in terror 'wag mo ko saktan' to show P's intent to kill. However

1) The defense objects on the ground of hearsay in that W's words constitute an out of court statement, being offered by the person other than the declarant to prove the truth of such statement. The prosecution replies that thyese are not hearsay in that they are IRS as indicia of a state of mind of W. The defense argues that even if they show W's SOM, it is irrelevant/ Rule on defense objections, prosecution replies, defense arguments
SOM so not hearsay
2) Assume that the facts are modified as follows: W in fact grappled with P for the gun because W thought P would shoot her then W accidentally shot P. At the trial W presents G and LS and the tape to show self-defense, will your answers change
For self-defense: should prove the existence of the gun, the provocation…
-hearsay sha basta, but would fall under RES GESTAE (both part 1 and 2)
3) Defense also objects on the ground of RIAA in that the rights of P may not be prejudiced by the extra-judicial declaration of W
RIAA does not apply because it doesn't involve an admission



2. In the middle of 2008, C semt 18 year old S a demand letter, askin ghte latter to vacate the apartelle unit that he S and his father F had been occupuing for three years before F died in early 2007 for the reasn that F had already sold the same to him C since early 2006. In his reply leteer, S stated that the alleged 2006 deed of sale is a forgery and tha the unit subject thereof was duly inherited by him.

C filed an action to recover possession based on the alleged sale, attaching an alleged copy thereof to the complaint, and presenting the original of said alleged deed of sale during the pre-trial. In his answer, S specifically denied the athenticity and due execution of the said deed under oath, alleging that the same was falsifified and that C is a liar. C died before the could testify.

Would you have any objection/ if at the trial.

a. W the wife if C comes home from abroad and testifies on the signature of C on the deed of sale as well as the payments she made thereon to F
-no objections
-not under Marital privilege (130.22) nor 130.24
b. A notary public testifies, indentifying the signatures of C and F on the deed of sale
-notary public not covered by privileged communication prohibition under R130.24(b)

3. When A died, he left behind three minor legitimate children, W, X, and Y and on e adult illegitimate child Z. Z instituted special proceedgins for the partition of A;s estate and, pendente lite, his appointment as administrator. W X Y opposed in their capacity as legitiamte children.

Upon Z's presentation of evidence at the trial, W X Y objected to--

i. Any and all testimony from Z regarding any alleged extra0judicial act or declaration offered to show that Z was a'S illegitimate child by reason of DMS
-DMS does not apply. Partition is not a "claim or demand" upon the estate of the deceased

ii. Testimony by D, lng time driver of A to the effect that one day in the recent past, during breakfast, A just bowed his head and remained silent when his youngest child Y (whom Z admits in his pleadings is a legitimate child) confronted and asked him (a) whether or not it is true that he A has an illegitimate child by the name of Z, on the ground that Rule 130.39 refers to acts declarations, not omissions, and likewise invoking the requirements of evidence aliunde under the same rule.
-obiter: This rule is actually governed by admissions by silence "who does or says nothing"
-R130.39: does not apply because you must show evidence aliunde to show relationship before showing it…

On new year's eve, congressman V was a visitor in the household C. After downing several drinks, V became so unruly that he ended up smashing the crystal collection of C. It turned out that V had taken shabu earlier such that he was gloriously hihg.

Unfrotunaltely in his glorious rampage, V had cut himself with a 5000$ broken bottle in the neck, such that he was rshed to the hospital. Before the octor would sew his gaping wound, V had to tell the anaestjesiologist A that he had just imbibed drugs & alcohol. (samplex)
-already in the samplex. Would blacken the reputation…

Capt. Marlon Mendoza question… COMELEC Commissioner Virgilio Garcilliano during the 2004 pre-election period…
"Aprub na 'yong budget na P300 M na binigay ni Bong Pineda para siguraduhin ang panalo ni GMA"
If MM were to be presented by the prosecution in crresponding criminal cases agaisnt VG…would you object to its admissibility?
SAGOT!!! It is an admission (the statement itself shows that he received something + act of toasting….)
-it the other officials were also impleaded, RIAA would apply but this would fall under exceptions: acts during the conspiracy!

Zuce example:
a. Hearsay but falls under exemption: R130.38 (declaration against interest - he would be liable for bribery) - In the case of Bernal, the victim was the person whose interest was declared against!
-the testimony (declaration) is simply the mode by which you declare something against interest
VAA: hearsay under R130.38 also includes actions and documents, not only declarations

Accused A, B and C were detained at the city jail during their PI for illegal recruitment. While there, police got B and C to point to A as the illegal recruier-employer, on which occasion, A just bowed his head and kept silent. At the trial, the prosecution will present B and C to relate to the foregoing. Admissible?
Since PI, pede shang di magsalita because the accused has rights to remain silent during PI.

1.a. Right before one hearing during the trial itself, outside the courtroom, B and C again expressly pointed to A in front of media personnel, A simply turned away and avoided the cameras. Admissible?
Is this admission by silence? No. He is not bound to give a statement!

Accused A B and C were accused of murder. During trial, A sought and successfully got to be discharged as state witness, after executing an affidavit… basta B and C who were impleaded in an affidavit
Affidavit was already done DURING TRIAL. You only need counsel during custodial investigation.
-hearsay ung affidavit, made out of court.
-RIAA: but conspiracy if proven should be an exception


#3: not valid, thus incompetent thus inadmissible
Note; only victim can invoke it

On ZONA:
-if search NOT in plain view: incompetent
If in plain view: fruit of the poisonous tree
If you were asked to sign the sachet, you are pinpointed so custodial investigation na.


On H and W carnival…C was made sisi…W had "confessed" that C killed H.
-not RIAA. W did not admit anything.
-if the affidavit presented, not W. Inadmissible. Hearsay.

Basta pag tinanong if admissible yung evidence:
check out palagi if relevant and competent!!!
(not on rebuttal, not on cross...)

on pager: on time: is it admissible against defense?
YES

A farmer was killed in themountains, rebel B, leading C D E and 20 other armed men visited the small police station in the poblacion bordering the mountains and delivered a written manifasto ....
RIAA

-verbally delivered: not RIAA. Admissions/R130.33 confession
-verbally made statement while dringking...on invitation of police: RIAA
-hot pursuit: RIAA...
-relates to cousin: ...

Direct evidence stronger than circumstantial?
not necessarily...?