Adopted by the Supreme Court on July 17, 2001

On July 17, 2001, the Supreme Court en banc approved by resolution the new Rules on Electronic Evidence and which took effect last August 1, 2001 (A.M. No. 01-7-01-SC). Originally, the Rules applied whenever an electronic data message or electronic document is offered or used in evidence in civil actions and proceedings, as well as quasi-judicial and administrative cases. Recently, however, the Supreme Court has extended its application to criminal cases (A.M. No. 01-7-01-SC).

Under the Rules, "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 the Rules. It also states that "an electronic document is admissible in evidence if it applies with the rules on admissibility prescribed by the Rules of Court and related laws and is authenticated in a manner prescribed" by the Rules.

The manner of authentication prescribed by the Rules may be enumerated as follows:
a. By evidence that it had been digitally signed;
b. By evidence that other appropriate security procedures or devices as may be authorized by Supreme Court or by law was applied, and;
c. By evidence showing its integrity and reliability to the satisfaction of the Judge.

Moreover, the Rules amends the Best Evidence Rule in the Rules of Court. It states that "electronic documents shall be regarded as the equivalent of an original document under the Best Evidence Rule if it is printout or output readable by sight or other means, shown to reflect the data accurately."


Scope of the Rules
According to the Rules of Court, "The rules of evidence shall be the same in all trials and hearings except as otherwise provided by law and these rules (ROC, Rule 128, Section 2)." The Rules of Evidence, therefore, is of the nature of a general rule subject to exceptions provided by law or by the Rules of Court or other rules issued by the Supreme Court.

In relation to this, the ECA provided that it "does not modify any statutory rule relating to the admissibility of electronic data messages or electronic documents, except the rules relating to authentication and best evidence (ECA, Section 7, last paragraph)." Based on the foregoing, the Rules of Evidence, particularly in relation to the admissibility of electronic data messages or electronic documents, remained the same under the ECA, except for the rules relating to "authentication and best evidence". This was true until Supreme Court adopted the REE.

Unless otherwise provided, the REE applies "whenever an electronic document or electronic data message, as defined in Rule 2 hereof, is offered or used in evidence." (REE, Rule 1, Section 1) Originally, it applied only "to all civil actions and proceedings, as well as quasi-judicial and administrative cases." (REE, Rule 1, Section 2) As earlier noted, however, Supreme Court have since extended its application to criminal cases (A.M. No. 01-7-01-SC).

The Rules of Evidence in the Rules of Court continue to be the general rule. The REE provides that "In all matters not specifically covered by these Rules, the Rules of Court and pertinent provisions of statutes containing rules on evidence shall apply." (REE, Rule 1, Section 3) Nevertheless, according to the REE, "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 3, Section 1).


Admissibility of Electronic Evidence

In the Rules of Court, "Evidence is admissible when it is relevant to the issue and is not excluded by the law or these rules." (ROC, Rule 128, Section 3) In other words, evidence is admissible when it is both relevant and competent, meaning, excluded by law or the rules.

In relation to this, the ECA provides that "nothing in the application of the rules on evidence" in any legal proceeding "shall deny the admissibility of an electronic data message or electronic document in evidence -
a. On the sole ground that it is in electronic form; or
b. On the ground that it is not in the standard written form and electronic data message or electronic document meeting, and complying with the requirements under Section 5 or 7 hereof shall be the best evidence of the agreement and transaction contained there." (ECA, Section 12, first paragraph)

In the REE, an "electronic document is admissible in evidence if it complies with the rules on admissibility prescribed by the Rules of Court and related laws is authenticated in the manner prescribed by these Rules." (REE, Rule 3, Section 2).

Necessity for Authentication

Documents are generally classified into public and private documents. Public documents, because of their nature, does not require authentication. Such is not the case for private documents. Under the Rules of Court, "Before any private document offered as authentic is received in evidence, its due execution and authenticity must be proved either:
a. By anyone who saw the document executed or written; or
b. By evidence of the genuineness of the signature or handwriting of the maker.
Any other private document need only be identified as that which is claimed to be." (ROC, Rule 132, Section 20)

No authentication is also required for documents which are more than thirty years old. The Rules of Court provides that: "Where a private document is more than thirty years old, is produced from custody in which it would be naturally be found if genuine, and is unblemished by any alterations or circumstances of suspicion, no other evidence of its authenticity need be given." (ROC, Rule 132, Section 21)

The above-stated rules on authentication were modified by the ECA as far as electronic data messages or electronic documents are concerned. It states that:

"Until the Supreme Court by appropriate rules shall have so provided, electronic documents, electronic data messages and electronic signatures, shall be authenticated by demonstrating, substantiating and validating a claimed identity of a user, device, or another entity in an information or communication system, among other ways, as follows:
(a) The Electronic signature shall be authenticated by proof that a letter, character, number or other symbol in electronic form representing the persons named in and attached to or logically associated with an electronic data message, electronic document, or that the appropriate methodology or security procedures, when applicable, were employed or adopted by a person and executed or adopted by such person, with the intention of authenticating or approving an electronic data message or electronic document;
(b) The electronic data message and electronic document shall be authenticated by proof that an appropriate security procedure, when applicable was adopted and employed for the purpose of verifying that originator of an electronic data message and/or electronic document, or detecting error or alteration in the communication, content storage of an electronic document or electronic data message from a specific point, which, using algorithm or codes, identifying words or numbers, encryptions, answers back or acknowledgement procedures, or similar security devices."

"The Supreme Court may adopt such other authentication procedures, including the use of electronic notarization systems as necessary and advisable, as well as the certificate of authentication on printed or hard copies of the electronic document or electronic data messages by electronic notaries, service providers and other duly recognized or appointed certification authorities."

"The person seeking to introduce an electronic data message and electronic document in any legal proceeding has the burden of proving its authenticity by evidence capable of supporting a finding that the electronic data message and electronic document is what the person claims it to be."

"In the absence of evidence to the contrary, the integrity of the information and communication system in which an electronic data message or electronic document is recorded or stored may be established in any legal proceeding

(a) By evidence that at all material times the information and communication system or other similar device was operating in a manner that did not affect the integrity of the electronic data message and/or electronic document and there was no other reasonable grounds to doubt the integrity of the information and communication system;
(b) By showing that the electronic data message and/or electronic document was recorded or stored by a party to the proceedings who is adverse in interest to the party using it; or
(c) By showing that the electronic data message and/or electronic document was recorded or stored in the usual and ordinary course of business by a person who is not a party to the proceedings and who did not act under the control of the party using the record." (ECA, Section 11)

Now, with the adoption of the REE, the Supreme Court in effect has adopted the appropriate rules on the authentication electronic data messages and electronic documents referred to in the ECA.

First, it provides that, "The person seeking to introduce an electronic document in any legal proceeding has the burden of proving the authenticity in the manner provided in this Rule." (REE, Rule 5, Section 1)

Second, it enumerated the means by which the authenticity of private electronic data messages or electronic documents are established. Accordingly, "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." (REE, Rule 5, Section 2)

Finally, "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 under the Rules of Court." (REE, Rule 5, Section 3)

Best Evidence Rule

Under the Rules of Court, "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: x x x." (ROC, Rule 130, Section 3) An original document is defined as follows:

a. "The original of a 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." (ROC, Rule 130, Section 4)

Under the ECA, the fact that a document is an electronic data message or electronic document will not make such document inadmissible in any legal proceeding. Accordingly, "In any legal proceeding(s), nothing in the application of the rules on evidence shall deny the admissibility of an electronic data message or electronic document in evidence -
a. On the sole ground that is in electronic form; or
b. On the ground that it is not in the standard written form and electronic data message or electronic document meeting, and complying with the requirements under Section 6 or 7 hereof shall be the best evidence of the agreement and transaction contained therein." (ECA, Section 12)

In application of the ECA provision, the REE provides that "An electronic document shall be 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." (REE, Rule 4, Section 2)

In addition, the REE considers certain types of electronic data messages or electronic documents as equivalent to the originals. It declares that "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 accurately reproduces the original, such copies or duplicates shall be regarded as the equivalent of the original."

The above-stated rule is subject to the qualification that, "Notwithstanding the foregoing, copies or duplicates shall not be admissible to the extent as the original if:
a. a genuine question is raised as to the authenticity of the original; or
b. in the circumstances it would be unjust or inequitable to admit the copy in lieu of the original." (REE, Rule 5, Section 2)

Evidentiary Weight of Electronic Evidence

Once documentary evidence is admitted, the trial court judge shall then determine the evidentiary weight or probative value of such evidence. Accordingly, "In assessing the evidential weight of an electronic data message or electronic document, the reliability of the manner in which it was generated, stored or communicated, the reliability of the manner in which its originator was identified, and other relevant factors shall be given due regard." (ECA, Section 12, last paragraph)

While the ECA provided for factors which should be given "due regard" in assessing the evidentiary weight of electronic data messages or electronic documents admitted in evidence, the REE enumerates more factors which may be considered. It states that "In assessing the evidentiary weight of an electronic document, the following factors may be considered:
(a) The reliability of the manner or method in which it was generated, stored or communicated, including but not limited to input and output procedures, controls, tests, checks, for accuracy and reliability of the electronic data message or document, in the light of all the circumstances as well as any relevant agreement;
(b) The reliability of the manner in which its originator was identified;
(c) The integrity of the information and communication system in which it is recorded or stored, including but not limited to the hardware and computer programs or software used as well as programming errors;
(d) The familiarity of the witness or the person who made the entry with the communication and information system;
(e) The nature and quality of the information which went into the communication and information system upon which the electronic data message or electronic document was based; or
(f) Other factors which the court may consider as affecting the accuracy or integrity of the electronic document or electronic data message." (REE, Rule 7, Section 1)

Now, in relation to item (c) of the above-stated enumarated, the REE provides that "In any dispute involving the integrity of the information and communication system in which the integrity of the information and communication system in which an electronic document or electronic data message is recorded or stored, the court may consider, among others, the following factors:
(a) Whether the information and communication system or other similar device was operated in a manner that did not affect the integrity of the electronic document, and there are no other reasonable grounds to doubt the integrity of the information and communication system;
(b) Whether the electronic document was recorded or stored by a party to the proceedings with interest adverse to that of the party using it; or
(c) Whether the electronic document was recorded or stored in the usual and ordinary course of business by a person who is not a party to the proceedings and who did not act under the control of the party using it." (REE, Rule 7, Section 2)

Method of Proof

The ECA also provides for a method by which integrity may be established. It states that "The matters referred to in Section 12, on admissibility and Section 9, on the presumption of integrity, may be presumed to have been established by an affidavit given to the best of the deponent's knowledge of the subject to the rights of parties in interest as defined in the following section." (ECA, Section 14)

The adverse party, however, has the right to cross-examine the deponent. Accordingly, the ECA states that "A deponent of an affidavit referred to in Section 14 that has been introduced in evidence may be cross-examined as of right by a party to the proceedings who is adverse in interest to the party who has introduced the affidavit or has caused the affidavit to be introduced."

"Any party to the proceedings has the right to cross-examine a person referred to in Section 11, paragraph 4, sub-paragraph c." (ECA, Section 15)

Following the same line, the REE states that "All maters relating to the admissibility and evidentiary weight of an electronic document may be established by an affidavit stating the facts or direct personal knowledge of the affiant or based on authentic records. The affidavit must affirmatively show the competence of the affiant to testify on the matters contained therein." (REE, Rule 9, Section 1)

It also states that "The affiant shall be made to affirm the contents of the affidavit in open court and may be cross-examined as a matter of right by the adverse party." (REE, Rule 9, Section 2)

Exception to the Hearsay Rule

Under the Rules of Court, testimonial evidence cannot be admitted if the witness does not have personal knowledge of the fact or facts upon which he is testifying. This is referred to as the hearsay rule. The Rules, however, have provided for certain exceptions. Among these is the business records exception. Accordingly, the Rules provide that "Entries made at, or near the time of the transactions to which they refer, by a person deceased, or unable to testify, who was in a position to know the facts therein stated, may be received as prima facie evidence, if such person made the entries in his professional capacity or in the performance of duty and in the ordinary or regular course of business or duty." (ROC, Rule 130, Section 43)

With the intention of extending the business records exception to the hearsay rule to electronic evidence, or electronic data messages or electronic documents presented in evidence, the REE provides that "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 by a person with knowledge thereof, and kept in the regular course or conduct of a business activity, and such was the regular practice to make the memorandum, report, record, or data compilation by electronic, optical or similar means, all of which are shown by the testimony of the custodian or other qualified witnesses, is excepted from the rule on hearsay evidence." (REE, Rule 8, Section 1)

And, in relation to the above-stated rule, the REE provides that "The presumption provided for in Section 1 of this Rule may be overcome by evidence of the untrustworthiness of the source of information or the method or circumstances of the preparation, transmission or storage thereof." (REE, Rule 8, Section 2)

Electronic Signatures

The ECA provides that "An electronic signature on the electronic document shall be equivalent to the signature of a person on a written document if the signature is an electronic signature and proved by showing that a prescribed procedure, not alterable by the parties interested in the electronic document, existed under which -
a) A method is used to identify the party sought to be bound and to indicate said party's access to the electronic document necessary for his consent or approval through the electronic signature;
b) Said method is reliable and appropriate for the purpose for which the electronic document was generated or communicated, in the light of all circumstances, including any relevant agreement;
c) It is necessary for the party sought to be bound, in order to proceed further with the transaction, to have executed or provided the electronic signature; and
d) The other party is authorized and enabled to verify the electronic signature and to make the decision to proceed with the transaction authenticated by the same." (ECA, Section 8)

It also provides that "In any proceedings involving an electronic signature, it shall be presumed that,
a) The electronic signature is the signature of the person to whom it correlates; and
b) The electronic signature was affixed by that person with the intention of signing or approving the electronic data message or electronic document unless the person relying on the electronically signed electronic data message or electronic document knows or has notice of defects in or unreliability of the signature or reliance on the electronic signature is not reasonable under the circumstances." (ECA, Section 9)

Along this line, the REE provides that "An electronic signature or a digital signature authenticated in the manner prescribed hereunder is admissible in evidence as the functional equivalent of the signature of a person on a written document." (REE, Rule 6, Section 1)

And, for purposes of authentication, the REE provides that "An electronic signature may be authenticated in any of the following manner:
a) By evidence that a method or process was utilized to establish a digital signature and verify the same;
b) By any other means provided by law; or
c) By any other means satisfactory to the judge as establishing the genuineness of the electronic signature." (REE, Rule 6, Section 2)

However, unlike the ECA, the REE provides for different sets of presumption arising from the authentication of electronic signatures and those of digital signatures. It states that "Upon authentication of an electronic signature, it shall be presumed that:
a) The electronic signature is that of the person to whom it correlates;
b) The electronic signature was affixed by that person with the intention of authenticating or approving the electronic document to which it is related or to indicate such person's consent to the transaction embodied therein; and
c) The methods or processes utilized to affix or verify the electronic signature operated without error or fault." (REE, Rule 6, Section 3)

On the other hand, it also states that "Upon authentication of a digital signature, it shall be presumed, in addition to those mentioned in the immediately preceding section, that:
a) The information contained in a certificate is correct;
b) The digital signature was created during the operational period of a certificate;
c) No cause exists to render a certificate invalid or revocable;
The message associated with a digital signature has not been altered from the time it was signed; and,
d) A certificate had been issued by the certification authority indicated therein." (REE, Rule 6, Section 4)

Problems

Of course, the Rules are not without problems. For example, the fact that they only applied originally to civil, quasi-judicial and administrative cases, and not to criminal cases, caused some difficulties.

In addition, the manner or means of authenticating electronic evidence enumerated are problematic. First, "digital signatures" are not yet widely used and are not applicable to the more common electronic devices like bundy clocks, cellular phones, etc. Second, procedures to be identified by the Supreme Court or by law obviously means that the Supreme Court has yet to identify them.

Lastly, evidence showing integrity and reliability "to the satisfaction of the Judge" is rather vague to be able to guide the bench and bar what is the manner to be used. In effect, the only way of authenticating electronic evidence which is of general application is by presenting evidence "to the satisfaction of the Judge". This can mean anything under the sun for so long as you can convince the judge.

Moreover, the section on copies considered equivalent to originals speaks of "copies or duplicates" which are "not admissible to the same extent as the original." This is disturbing because this seems to suggest that non-originals may still be admitted but "not to the same extent as the original". If this interpretation is correct, then Best Evidence Rule ceases to serve its purpose.

Finally, in the section on the exception to the hearsay rule, the Rules speak of "the presumption provided for in" the preceding section. Unfortunately, a close scrutiny of the preceding section would tell us that no such presumption is provided.

(Copyright 2003. Gilbert E. Lumantao. All rights reserved. No part of this article may be reproduced in any manner whatsoever without written permission except in the case of brief quotations embodied in critical articles and reviews.)