ANGELES UNIVERSITY FOUNDATIONSchool of Law

How is electronic evidence authenticated in court and the objections to its presentation.

Submitted by:Carina Amor D. ClaveriaJD1

Submitted to:Atty. Javier Flores

IntroductionBefore the birth of computer age, we have been using or presenting documentary evidence in court such as contracts, agreements, letters and other writings. These writings printed in papers are popularly known then as our documentary evidence. At that time, text messages or e-mail messages, as it was not yet widely used and known in the Philippines, are not considered as documentary evidence by our courts of law.In 2003, the average Filipino mobile subscriber sent an average of 195 text messages per month (about 7 messages a day). By comparison, that same year the average user in the USA sent 13 a month. In 2005, Filipinos sent on average 250 million text messages a day - 33 million subscribers In 2006, Filipinos sent 350 to 400 million texts messages a day - 35 millions users. In 2007, Filipinos sent a staggering 1.39 billion text messages roughly 50 million users. In 2009, the trend continues but there are now about 73 million subscribers. With a recent US study revealing that the average Filipino cellphone user sends an average of 600 text messages per month (or 43% more than their counterparts in the United States). 2010 data is still not out, but there shouldnt be any reason why it wouldnt be mind-boggling.[footnoteRef:1] [1: http://jatps.hubpages.com/hub/The-Philippines-is-Still-the-Undisputed-Text-Capital-of-the-World]

Now, in todays Internet age, our interactions are now through electronic communications using our cell phones, laptops, PC tablets and the likes. These interactions in the Internet using these electronic gadgets have spawned legal controversies as to the use of the electronic writings and its admissibility in court. With the ever-growing demand to regulate transactions in the Internet, our lawmakers, thus, passed Republic Act No. 8792, otherwise known as the E-Commerce Law. This law was subsequently followed by the issuance of the Supreme Court of A.M. No. 01-7-01-SC, otherwise known as the Rules on Electronic Evidence.[footnoteRef:2] [2: https://e-lawyersonline.com/static/page/elegal_news]

With these two laws, e-mail messages can now be used as evidence in court. E-mail message is called electronic document. Even our telephone conversations, text messages, chat room sessions, streaming audio, streaming video, and other electronic forms of communication the evidence of which is not recorded or retained, can now also be used as evidence in courtHistorical ContextThe Philippines has been used to written laws as evident in its rich history. Tracing back to the laws that were written by chieftains even before the Spanish regime, like the Code of Kalantiaw, the written documentation proves more powerful and invincible. The Philippine courts have employed for years the admission of concrete evidences or paper-based documents as evidences. However, with the dawn of the new media, adaption of electronic documents as evidence is also being utilized as it serves the same purpose of that of a paper-based type.Electronic evidence is fairly a new concept for most, but the Supreme Court have already reviewed and assessed the significant value of it even before ratification of the E-Commerce Act of 2000 and the Rules on Electronic Evidence. Back in 1999, with regards to the case of IBM Philippines Inc. versus NLRC, the submitted printed copies of an e-mail by the petitioner to be used as evidence was declared inadmissible by the Supreme Court due to lack of assurance of authenticity and as to whether the e-mail really came from the petitioners system or that the data stored was not tampered with, the SC did not lay guidelines on the permissibility of electronic documents. [footnoteRef:3] [3: http://sc.judiciary.gov.ph/jurisprudence/1999/apr99/117221.htm]

The questions as to how and when electronic documents can be used were answered in the Section 5 of E-Commerce Act(ECA) of 2000 and Rule 2 of the Rules on Electronic Evidence (REE) which provides legal recognition of Electronic Data messages and electronic documents (ECA Chapter II), Electronic Documents as Functional Equivalent of Paper-Based Documents (REE Rule 3, Section 1), Admissibility (REE Rule 3, Section 2), Authentication of Electronic Documents (REE Rule 5), and method of proof (REE Rule 9).[footnoteRef:4] [4: http://obitir.wordpress.com/2013/02/20/text-messages-as-electronic-evidence/]

In 2005, these legalities were employed in the case of Nuez versus Cruz-Apao, as a short message service (SMS) or text messages was admitted as evidence against Cruz-Apao by virtue of Rule 2, Section 1(k) of the REE and since it is considered as ephemeral electronic communication. The case dealt with a Court of Appeals employee (Cruz-Apao) who sent a text message to a litigant (Nuez) demanding 1 million pesos in exchange of a favorable decision. The Court found out that the text messages were consistent with the complainants testimony and that the complainant has personal knowledge of the incriminatory message, and could, ergo, testify on the content as stipulated in Rule 11, Section 2 of the REE: ephemeral electronic communication shall be proven by the testimony of a person who was a party to the same or who has a personal knowledge thereof.[footnoteRef:5] [5: http://sc.judiciary.gov.ph/jurisprudence/2005/apr2005/am_ca_05_18_p.htm]

Another case in 2005 which followed Nuez was a case involving another Court of Appeals employee (Magtolis v. Salud) who was suspended because of grave misconduct and inefficiency which was proven by his text messages. The Court ruled that the text messages could be used as evidences as the complainant and his counsel admitted authorship of these and that it does not violate the persons right to privacy.AdmissionsThe Section 2 of Rule 3 of REE states that An electronic document is admissible as evidence if it complies with rules on admissibility prescribed by the Rules of Court and related laws and is authenticated in the manner prescribed by these Rules. More so, it applies to civil, quasi-judicial, administrative, and also criminal cases.[footnoteRef:6] [6: Rules on Electronic Evidence in the Philippines]

Due to the enormous growth in electronic correspondence, electronic communication continuously revolutionized how the world does business including civil and criminal litigations. During trials, judges are often asked to rule on the admissibility of electronic evidence as it could substantially impact the outcome of a lawsuit or determine the difference between conviction and acquittal of a defendant.Furthermore, in order to determine permissibility of e-evidence, it should, first, be a priority to check on the authenticity of the electronic document as stated in Rule 5 of REE. The most common method of authentication is the use of a testimony that has knowledge of it. The next step would be determining if its a hearsay or not and if it relevant or not. The admission of e-evidence still follows the general rule of law of evidence, the rule of best evidence-the avoidance of hearsay and the production of primary evidence. This still holds true with e-evidence as it still seeks to consider only evidences that cannot be reasonably doubted.In addition, an e-document shall be considered eligible for admission as evidence if an original of it could be produced in court and not a print-out, copy or photograph or any method of reproduction of the document casting doubt on its authenticity which might give opportunities to ideas of fraud or fabrication of evidences. The original, then, would qualify as primary evidence. Consequently, an electronic document that is stored in a digital device or machine [footnoteRef:7]can serve as evidence only upon certification of the machine with respect to its reliability and free from being tampered. [7: ibid]

Examinations of WitnessesIn the examination of witness, only statements that are of personal knowledge are considered admissible by court. Any hearsay would be considered inadmissible. Only a person who has himself obtained the facts being proved can swear to it, and not someone who has received information second-hand.Rule 10 of REE provides regulations on the examination of witness. Section 1 or Rule 10 states that the court may authorize presentation of testimonial evidences by electronic means if deemed necessary, thereby also providing terms and conditions under the circumstance, including protection of rights of the parties and witnesses concerned.[footnoteRef:8] [8: Rules on Electronic Evidence in the Philippines]

Also, the entire proceeding would be recorded and transcribed by a competent stenographer, or other recorder authorized for the purpose. The transcript should serve as reflection of the proceeding being electronically recorded.Lastly, all transcripts and stenographic notes, as well as the electronic evidence shall be part of record of the case and shall be seen as prima facie evidence of the proceedings.[footnoteRef:9] [9: ibid]

The Philippine Rules on Electronic EvidenceStructural Issues Concerning the Philippine Rules on Electronic EvidenceAs much as the use of electronic evidences is not widely popular before, it is likely to be important in cases such as money laundering and graft and corruption and other high profile criminal cases. Communication through phone calls or messages via text or e-mail or, presently via social networking sites can be made to contact people abroad. Thus, call and Internet logs are often effective as evidences to such aforementioned cases. Moreover, the advent and proliferation of digital technologies and the dramatic use of it by most people proves that there is only a little, if any, justifiability in crafting a different set of standards in dealing with modern-kind-of evidence as it turns out that these things as well as the traditional kind of evidence has the same purpose or goal. The issues concerning e-evidence are concurrently the same issues concerning the printed documents or concrete evidences thereby putting e-evidence in the same light as concrete evidences.[footnoteRef:10] [10: http://www.americanbar.org/content/dam/aba/directories/roli/philippines/philippines_rules_of_evidence.authcheckdam.pdf]

Definitional Issues Concerning the Philippine Rules on Electronic EvidenceIn 2005 on the case of Ang vs Court of Appeals which is a criminal case it stated there that Electronic Evidence are not admissible in criminal cases, it happened that on 2002 there is an ELECTRONIC EVIDENCE RULE: THE RULES ON ELECTRONIC EVIDENCE APPLIES ONLY TO CIVIL ACTIONS, QUASI-JUDICIAL PROCEEDINGS, AND ADMINISTRATIVE PROCEEDINGS. IT DOES NOT APPLY TO CRIMINAL CASES. (RUSTAN ANG Y PASCUA VS. COURT OF APPEALS AND IRISH SAGUD) In a charge for the crime of violence against women (RA 9262 VAWC) by Irish against her former boyfriend Rustan, is the act of the latter in sending a picture of a naked woman, not her, but with her face on it through text message covered by the Electronic Evidence Rules Rustan claims that the obscene picture sent to Irish through a text message constitutes an electronic document. Thus, it should be authenticated by means of an electronic signature, as provided under Section 1, Rule 5 of the Rules on Electronic Evidence (A.M. 01-7-01-SC)RULE 5AUTHENTICATION OF ELECTRONIC DOCUMENTS SECTION 1. Burden of proving authenticity. The person seeking to introduce an electronic document in any legal proceeding has the burden of proving its authenticity in the manner provided in this Rule.SEC. 2. Manner of authentication. Before any private electronic document offered as authentic is received in evidence, its authenticity must be proved by any of the following means:(a) by evidence that it had been digitally signed by the person purported to have signed the same;(b) by evidence that other appropriate security procedures or devices as may be authorized by the Supreme Court or by law for authentication of electronic documents were applied to the document; or(c) by other evidence showing its integrity and reliability to the satisfaction of the judge.

SEC. 3. Proof of electronically notarized document. - A document electronically notarized in accordance with the rules promulgated by the Supreme Court shall be considered as a public document and proved as a notarial document.The rules he cites do not apply to the present criminal action. The Rules on Electronic Evidence applies only to civil actions, quasi-judicial proceedings, and administrative proceedings.(A.M. No. 01-7-01-SC, Rule 1, Section 2). Be that as it may, in conclusion, the Supreme Court found that the prosecution has proved each and every element of the crime charged beyond reasonable doubt.[footnoteRef:11] [11: Ang vs Court of Appeals http://www.lawphil.net/judjuris/juri2010/apr2010/gr_182835_2010.html ]

On the other hand, eight years prior to the Ang case, an En Banc Resolution of the Court on September 24, 2002. AM 01-7-01-SC RE Expansion of the Coverage of the Rules on Electronic Evidence)A.M. No. 01-7-01-SCRE: EXPANSION OF THE COVERAGE OF THE RULES ON ELECTRONIC EVIDENCERESOLUTIONActing on the letter of the Chairman of the Committee on Revision of the Rules of Court, the Court Resolved to AMEND Section 2, Rule 1 of the Rules on Electronic Evidence to read as follows:"SEC. 2 Cases covered. - These Rules shall apply to the criminal and civil actions and proceeding, as well as quasi-judicial and administrative cases."The amendment shall take effect on October 14, 2002 following the publication of this Resolution in a newspaper of general circulation.September 24, 2002.HILARIO G. DAVIDE, JR.Chief JusticeJOSUE N. BELLOSILLOAssociate JusticeRENATO S. PUNOAssociate JusticeThe alleged Resolution was reported in the Philippine Star, a newspaper of general circulation in the Philippines. Nevertheless, as of now, a copy cannot be found in the Supreme Courts list relevant to amendments to the Rules of Court. [footnoteRef:12] [12: Amendments to the Rules of Court. Philippine Supreme Court. http://elibrary.judiciary.gov.ph/index5.php?doctype=Amendments%20to%20the%20Rules%20Of%20Court#rulesofcourt.]

But does it really exist? On 6 July 2012. Francis Acero provided a lead to the Office of the Court Administrator (OCA)s copy of the 2002 Resolution in its website. [footnoteRef:13]This somehow provided a bit of relief to those who believe that the Resolution was existing and applicable, contrary to the declaration in Ang vs. Court of Appeals, inasmuch at the PDF file is stored in the judiciarys server. [13: Part I. Judicial Matters, G. Evidence. Office of the Court Administrator.]

Text messages and E-mails as Electronic EvidenceElectronic evidence is a quite new concept. But the Supreme Court had the opportunity to assess the having the quality of electronic evidence even before the enactment of Republic Act No. 8792 or the E-Commerce Act of 2000 (ECA) and AM No. 01-7-01-SC or the Rules on Electronic Evidence (REE). [footnoteRef:14] [14: http://obitir.wordpress.com/2013/02/20/text-messages-as-electronic-evidence/]

In IBM Philippines Inc. v. NLRC (1999), the petitioners submitted computer print-outs of its e-mails to one of its employees, admonishing him for his many infractions, with repeated warnings that he would be terminated if he did not improve his work habits. The Court found that the e-mails, which constituted the only evidence of the petitioners, were inadmissible in evidence because there was no assurance of their authenticity, these not having been certified or authenticated by any company official who could properly attest that these came from petitioners system, or that the data stored therein was not tampered with. But it did not lay down specific guidelines on the admissibility of electronic documents.[footnoteRef:15] [15: http://sc.judiciary.gov.ph/jurisprudence/1999/apr99/117221.htm]

The ECA and the REE now contain such guidelines on how to authenticate the text messages and emails as evidence. The section 5(f) of ECA and Rule 2 of REE provide guidelines on authenticity and admissibility on electronic documents.ECA Chapter II [Legal Recognition of Electronic Data Messages and Electronic Documents];REE Rule 3, Sec. 1 [Electronic Documents as Functional Equivalent of Paper-Based Documents], Sec. 2 [Admissibility], and Sec. 3 [Privileged Communication;REE Rule 4 [Best Evidence Rule];REE Rule 5 [Authentication of Electronic Documents];REE Rule 6 [Electronic Signatures];REE Rule 7 [Evidentiary Weight of Electronic Documents];REE Rule 9 [Method of Proof].[footnoteRef:16] [16: chanrobles.com]

The Section 2 of the REE as amended defines the coverage of the law which is now applicable to criminal and civil actions and proceedings, as well as quasi-judicial and administrative cases. Before the amendment it was not applicable to criminal actions.Nunez vs Cruz-Apao(2005), a case involving a Court of Appeals employee who sent short message service (SMS) or text messages to a litigant demanding P1,000,000.00 in exchange for a favorable decision, was another occasion to assess the probative value of electronic evidence, this time in the form of text messages.The Court sustained the findings of the Court of Appeals investigating committee which admitted the text messages in evidence, since these are considered as ephemeral electronic communication by Rule 2, Sec. 1 (k) of the REE, i.e. telephone conversations, text messages and other electronic forms of communication the evidence of which is not recorded or retained.The Court found that the text messages corroborated the testimony of the complainant and his witness. The complainant was considered to have personal knowledge of the incriminating text messages and could testify on their contents, since Rule 11 Sec. 2 of the REE provides the ephemeral electronic communications shall be proven by the testimony of a person who was a party to the same or who has personal knowledge thereof.[footnoteRef:17] [17: http://sc.judiciary.gov.ph/jurisprudence/2005/apr2005/am_ca_05_18_p.htm]

Nuez was quickly followed by Magtolis vs Salud[2005], involving another Court of Appeals employee, who was suspended due to his inefficiency and gross misconduct, which were proven by his text messages. As in Nuez, the respondent and his counsel also admitted his authorship over the text messages. And the Court, citing Nuez, ruled that the use of text messages as evidence against the sender thereof do not violate his right to privacy.The text messages were properly admitted by the Committee since the same are now covered by Section 1(k), Rule 2 of the Rules on Electronic Evidence, which provides:Ephemeral electronic communication refers to telephone conversations, text messages and other electronic forms of communication the evidence of which is not recorded or retained.Under Section 2, Rule 11 of the [said rules], Ephemeral electronic communications shall be proven by the testimony of a person who was a party to the same or who has personal knowledge thereof . In this case, complainant who was the recipient of the said messages and therefore had personal knowledge thereof testified on their contents and import. Respondent herself admitted that the cellphone number reflected in complainants cellphone from which the messages originated was hers. Moreover, any doubt respondent may have had as to the admissibility of the text messages had been laid to rest when she and her counsel signed and attested to the veracity of the text messages between her and complainant. It is also well to remember that in administrative cases, technical rules of procedure and evidence are not strictly applied. We have no doubt as to the probative value of the text messages as evidence in determining the guilt or lack thereof of respondent in this case.[footnoteRef:18] [18: http://sc.judiciary.gov.ph/jurisprudence/2005/sep2005/am_ca_05_20_p.htm]

While Nuez and Magtolis are landmark decisions, the Supreme Court, as stated above, did not have the opportunity to test-drive, so to speak, the effectivity of the provisions of the ECA and the REE pertaining to the admissibility of electronic documents. Since in both cases, the respondents (and their counsels) admitted that they sent the text messages. Especially because both the ECA and the REE effectively amended the Best Evidence Rule: ECA Sec. 10(1): Where the law requires information to be presented or retained in its original form, that requirement is met by an electronic data message or electronic document under certain instances; ECA Sec. 7: This Act does not modify and statutory rule relating to the admissibility of electronic data messages or electronic documents, except the rules relating to authentication and best evidence; REE Rule 3, Sec. 1: Whenever a rule of evidence refers to the term writing, document, record, instrument, memorandum, or any other form of writing, such term shall be deemed to include an electronic document as defined in these Rules REE Rule 4, Sec. 1: 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. However, Rule 4 Sec. 2 of the REE enumerates the grounds when copies or duplicates shall not be admissible to the same extent as the original. And Rule 8 of the REE provides exceptions to the Hearsay Rule.[footnoteRef:19] [19: chanrobles.com]

ConclusionWhen an attorney is required to present evidence to prove factual allegations in a case, he relies on a comprehensive body of rules and practice, developed and refined over many years, which directs and controls the judicial process. These rules determine whether cases are successful or not, whether claims are satisfied or rejected and whether criminal convictions or acquittals are granted. The rules of evidence assist judges and lawyers to operate in a clearly defined system of procedures that stipulate the manner in which cases will be investigated, prepared for trial and tried. The effective functioning of any nations legal system depends on these rules and how they are put into effect. It is stated that the Philippines has its Rules on Electronic Evidence in place 8 years ago. Although not directly stated, the Philippine Judicial System did acknowledged the complexity of information technology and the significance of electronic documents as applied to court litigations. Such rules however provided major issues on the reliability and the authenticity of documents and the information it contains. Taking advantage of the complex technology offered nowadays, electronic documents by all means could be changed and altered and used as evidence to prove allegations to the point of making false accusations and unjust judgment. Electronic documents without electronic signatures and proper authentication will have no credit on court cases. With such issues and the continuing struggles of some people deprived of justice, electronic evidence could also be a course of action to enhance the divisions between the rich and the poor. With the rich having the resources and the poor with nothing to offer. Electronic evidence should serve its purpose. It should be used as a tool for justice and for the truth.