MODULE 3

RULES ON ADMISSIBILITY ON DOCUMENTARY AND

ELECTRONIC EVIDENCE

Learning Outcomes:
 Can apply the rules on admissibility on documentary evidence and the rules on
electronic evidence
 Can be able to show how it can be authenticate by an expert witness in a court hearing
Learning Objectives :
At the end of this module , the students should be able to:
 Explain articulately the application of rules on admissibility in a documentary evidence
and the rules on electronic evidence
 Distinguish original document rule, secondary evidence , parol evidence and electronic
evidence
 Apply cumulative understanding learned in the rules on admissibility in documentary
evidence and electronic evidence
 Show how documentary evidence and electronic evidence authenticate by an expert
witness during trial

I.DOCUMENTARY EVIDENCE DEFINED

Documents as evidence consist of writing, recordings, photographs or any material containing

letters, words, sounds, numbers, figures, symbols, or their equivalent, or other modes of written
expression offered as proof of their contents. Photographs include still pictures, drawings, stored
images, x-ray films, motion pictures or videos. ( Sec 2, Rule 130 of the 2019 Proposed
Amendments to the Revised Rules on Evidence

A. Writings or Paper Based Documents

B. “Or Any other material” refers to any other solid surface but not paper such as blackboard,
walls, shirts, tables, floor.

1). As in a contract painted on the wall

2). They include pictures, x-rays, videos or movies.

Note: Both kinds maybe handwritten, typewritten, printed, sketched or drawings or other modes
of recording any form of communication or representation. Example: The Rebus, Secret Codes.

II. RULES ON ELECTRONIC EVIDENCE (A.M No. 01-7-01-SC July 17,2001)

1) Rule 3 section 1: “Electronic evidence as functional equivalent of paper-based documents-

Whenever a rule of evidence refers to the term writing, document, records, instrument,
memorandum or any other form of writing, such term shall be deemed to include an electronic
document”.

2) “Electronic document” refers to information or to the presentation of information, data,

figures or symbols or other modes of written expression, described or however represented, by
which a sight is established or an obligation extinguished, or by which a fact maybe proved and
affirmed, which is received, recorded, transmitted, stored, processed, retrieved or produced
electronically.

3) It includes digitally signed documents and any printout or output, readable by sight or other
means which accurately reflects the electric data message or electronic document. For purposes
of these rules the term electronic document maybe used interchangeably with ”electronic data
message”

4). Rule 3 section 2: An electronic document is admissible in evidence if it complies with the
Rules of Admissibility prescribed by the Rules of Court and related laws and is authenticated in
the manner prescribed by these rules.

i) There are three requirements for admissibility: relevancy, competency and proper
authentication.

D. Text messages are electronic evidence being ephemeral electric communications. They maybe
proven by the testimony of a person who was a party to the same or who has personal knowledge
thereof such as the recipient of the messages ( Nunez vs. Cruz Apao 455 SCRA 288)

III. ORIGINAL DOCUMENT RULE

Original document must be produced; exceptions. — When the subject of inquiry is the contents
of a document, writing, recording, photograph or other record, no evidence is admissible other
than the original document itself.

The Original Document Rule is the rule which requires the highest grades of evidence to prove a
disputed fact . However , the same applies only when the contents of a document are the subject
of inquiry ( Nissan vs United Phil. Scout , 618 SCRA 584 )

Section 3 states the general rule when the original of a document is to be presented and the four
exceptions to the rule. Hence the best evidence rule is often referred to loosely as the “the
Original Document rule”. It is thus a rule of preference in that it excludes secondary evidence
once the original is available.

1. When the Original Is to Be Presented:

A. “If the subject of inquiry is the contents of the document”. This means the cause of action or
defense is based on what are contained in the document i.e. the terms and conditions, the entries,
data or information written on the document. This means the plaintiff is either enforcing a right
based on, or created, by a document or a party is seeking non-liability by virtue of the contents of
a document. Examples:

1. Enforcement of a contract, collection of money based on a promissory note, damages for

failure to comply with the terms of a written agreement

2. Defense of release, payment, novation, condonation, as embodied in a written document

3. In criminal cases: where the act complained of is made upon or contained or evidenced by a
document such as in falsification, perjury, bigamy, malversation, estafa, issuance of a watered
check

B. When the rule does not apply even if an existing and available original document is involved:

1. Generally if the contents were never disputed as in the following:

a). when the question refers to the external facts about the document such as whether it exists or
not, whether it was executed, sent, delivered or received

b). when the writing is merely a collateral fact, as when a witness refers to a writing of a
conversation which he heard and then jotted down or when the writing is used merely as a point
of reference

c). when the contents were admitted

d). the writing is treated as an object

2. When there was failure to deny specifically under oath the due execution and genuiness
of the document ( Consolidated Bank vs. Del Monte Motors, July 29, 2005)

Exceptions in the following cases:

(a) When the original is 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, or the
original cannot be obtained by local judicial processes or procedures;
 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. ( Sec 3, Rule 130 of the 2019 Proposed Amendments to the
Revised Rules on Evidence )

Note : The Original Document Rule applies only to documentary evidence it operates as a
rule of exclusion , that is , secondary evidence cannot be inceptively introduced as the
original writing itself must produced in court , except in the four instances mentioned in Sec.
3 of Rule 130 of the Rules of Court

The non – production of original document , unless justified , give rise to the presumption of
suppression of evidence .

Documents in the nature of an admission against interest are the best evidence which affords the
greatest certainty of facts in disputes . The marriage contract still remains the original document
to prove the fact of marriage .

Original of Document

(a) An “original” of a document is the document itself or any counterpart intended to have the
same effect by a person executing or issuing it. An “original” of a photograph includes the
negative or any print therefrom. If data is stored in a computer or similar device, any printout or
other output readable by sight or other means, shown to reflect the data accurately, is an
“original.”

(b) A “duplicate” is a counterpart produced by the same impression as the original, or from the
same matrix, or by means of photography, including enlargements and miniatures, or by
mechanical or electronic re-recording, or by other equivalent techniques which accurately
reproduce the original

(c) A duplicate is admissible to the same extent as an original unless (1) a genuine question is
raised as to the authenticity of the original, or (2) in the circumstances, it is unjust or inequitable
to admit the duplicate in lieu of the original. . ( Sec 4, Rule 130 of the 2019 Proposed
Amendments to the Revised Rules on Evidence )

IV. WHEN SECONDARY EVIDENCE MAYBE PRESENTED

Secondary Evidence-refers to any evidence to prove the contents of a document other than the
original of the said writing. It maybe oral or written.

First Exception: 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 or her 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.( Sec 5 of Rule 130 of the 2019 Proposed Amendments to the Revised Rules
on Evidence )

1. “ Lost/destroyed”: the original is no longer in existence

2. “cannot be produced in court”- the original exist but either (i) it is of a nature that it is
physically impossible to bring it in court as in the cases of a painting on a wall or tombstone or it
consists of the data stored in a computer (ii) would entail great inconvenience, expense or loss of
time if brought to court, as in the case of a writing on a rock (iii) it is outside the Philippine
territory

3. “without bad faith on the part of the offeror”- the lost or unavailability was not due to the act
or negligence of the party presenting secondary evidence, or if due to the act or fault of a third
person, then the offeror had no part therein.

4. Procedural requirement: Foundation or Order of Proof is (i) existence (ii) execution (iii) loss
and (iv). contents. Thus:
(i). Proof of the existence and the due execution of the original through the testimonies of the
persons who executed the document; the instrumental witnesses; by an eyewitness thereof; who
saw it after its execution and recognized the signatures therein; by the person before whom it was
acknowledged, or to whom its existence was narrated

Exception: Ancient documents.

(ii). Proof of the fact of loss or destruction of the original through the testimonies of (a) anyone
who knew of the fact of the loss as in the case of an eyewitness to the loss or testimony of the
last custodian (b) any who made a diligent search in the places where the original was expected
to be in custody and who failed to locate it (c) one specially tasked to locate but was unable to
find the original, as in the case of a detective.

If the original consists of several copies, all must be accounted for and proven to be lost.

(iii). Proof of lack of bad faith on the part of the offeror

(iv). Proof of the contents by secondary evidence according to the Order of Reliability i.e.:

a). By a copy whether machine made or handmade so long as it is an exact copy . It need not be a
certified copy

(b). By its Recital of the Contents in some Authentic Document_ a document whether public or
private, which is shown to be genuine and not manufactured or spurious, and which narrates,
summarizes or makes reference to the contents of the original document.

Examples: personal diaries; letters; annotation of encumbrances at the back of the title;
drafts or working papers; minutes and recordings by secretaries; memoranda by an employer to a
secretary or employee; the baptismal records as to the age of a person.

 Recollection or testimony of a witness such as the parties, instrumental witnesses and

signatories thereto; one who read the original; one present when the terms were discussed
or to whom the contents were related. The testimony need not accurate as long as the
substance is narrated.
5. If the offeror failed to lay the proper foundation but the opposing party did not make any
objection, the secondary evidence may be treated as if it were on the same level as the original
and given the same weight as an original.

Illustration: PP. vs. Cayabayab (Aug. 03, 2005). In a rape case the prosecution presented a
photocopy of the birth certificate of the victim to prove her age and which was not objected to.
The admissibility and weight were later questioned in the Supreme Court.

1. The best evidence to prove a person’s age is the original birth certificate or certified copy
thereof; in their absence, similar authentic documents maybe presented such as baptismal
certificates and school records. If the original or certified true copy of the birth certificate is not
available credible testimony of the mother or a member of the family maybe sufficient under the
circumstances. In the event that both the birth certificate or authentic documents and the
testimonies of the victim’s mother or other qualified relatives are unavailable, the testimony of
the victim ( a minor 6 years of age) maybe admitted in evidence provided it is expressly and
clearly admitted by the accused.

2. Having failed to raise a valid and timely objection against the presentation of this secondary
evidence the same became a primary evidence and deemed admitted and the other party is bound
thereby.

II.Second Exception: When the original is in the adverse party’s custody and control.

If the document is in the custody or under the control of adverse party, he or she 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. .( Sec 6 of Rule 130 of the 2019 Proposed Amendments to the Revised Rules
on Evidence

A. The Foundation consists of the following:

1. Proof of the Existence and Due Execution of the Original

2. Proof that the original is in the (a) actual physical possession/custody or (b) control i.e.
possession or custody by a third person for and in behalf of the adverse party, as that of a lawyer,
agent or the bank.

Maybe by the testimony of he who delivered the document; registry return receipt by the Post
Office or some other commercial establishments engaged in the delivery of articles and the
receipt thereof, or by one who witnessed the original being in the possession of the adverse party.

3. Proof that reasonable notice was given to the adverse party to produce the original: the notice
must specify the document to be produced.a) If the documents are self incriminatory, notice must
still be sent as the adverse party may waive the right

 The notice may be a formal notice or an-on-the-spot oral demand in court if the
documents are in the actual physical possession of the adverse party.

4. Proof of failure or refusal to produce.

B. Effects of refusal or failure to produce:

1. The adverse party will not be permitted later to produce the original in order to contradict the
other party’s evidence

2.. The refusing party maybe deemed to have admitted in advance the accuracy of the other
party’s evidence

3. The admission of secondary evidence and its evidentiary value is not affected by the
subsequent presentation of the original.

C. Proof of the contents is by the same secondary evidence as in the case of loss.

Summaries

When the contents of documents, records, photographs, or numerous accounts are voluminous
and cannot be examined in court without great loss of time, and the fact sought to be established
is only the general result of the whole, the contents of such evidence may be presented in the
form of a chart, summary or calculation.
The originals shall be available for examination or copying, or both, by the adverse party at a
reasonable time and place. The court may order that they be produced in court. .( Sec 7 of Rule
130 of the 2019 Proposed Amendments to the Revised Rules on Evidence )

IV. Third Exception: When the original consists of numerous accounts or other documents
which cannot be produced in court without great loss of time and the fact sought to be
established there from is only the general result of the whole.

A. This is based on practical convenience

B. The Foundation includes:

1. Proof of the voluminous character of the original documents

2. Proof the general result sought is capable of ascertainment by calculation or by a certain

process, procedure or system

3. Availability of the original documents for inspection by the adverse party so that he can
inquire into the correctness of the summary

C. How the general result is introduced: (a) by the testimony of an expert who examined
the whole account or records (b) by the introduction of authenticated abstracts, summaries
or schedules

D. Illustrations:

 A general summary of expenses incurred maybe embodied in a summary to which are

attached the necessary supporting receipts witness
 The state of health of an individual maybe established through the testimony of the
physician

IV. Fourth Exception: When the original is a public record in the custody of a public
official or is recorded in a public office

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.( Sec 8 of Rule 130 of the 2019 Proposed Amendments to the Revised Rules on
Evidence )

A.. The documents involved: (a) a strictly public document such as the record of birth, the
decision of a court and (b) a private document which was made part of the public record

B. Reason: The Principle of Irremovability of Public Records i.e. public records cannot be
removed or brought out from where they are officially kept. Reasons: (i) the records should be
made accessible to the public at all times (ii) the great in convenience caused to the official
custodian if he were called to present the records to the court every now and then and (iii) to
guard against the possibility of loss/destruction of the documents while in transit.

C. Exception or when the original has to be presented. Only upon prior Order from the court as
when an actual inspection is necessary for the proper determination of the case, as in cases of
falsification pursuant to the Gregorio Doctrine. In the absence of a court order, the official may
be liable for infidelity in the custody of documents.

D. Secondary evidence allowed:

 A certified copy issued by the official custodian bearing the signature and the official
seal of his office. When presented the document must bear the documentary and science
stamp and the accompanied by the official receipt of payment of the copy
 An official publication thereof

NOTES : Secondary evidence( also called “ substitutionary evidence “ or inferior evidence “) ,

when not objected to when presented , becomes primary evidence .( Heirs of Teodoro Dele Cruz
vs CA, 298 SCRA 172)

Prior to the introduction of secondary evidence , the proponent must establish the former
existence of the instrument . The correct order of proof is as follows : 1) existence ,(2)execution
, (3) loss, (4) contents. This order may be changed if necessary in the discretion of the court (
Lazatin vs Campos Jr , 92 SCRA 250 )
V. PAROL EVIDENCE RULE

When the terms of an agreement have been reduced to writing, it is considered as containing all
the terms agreed upon and there can be, as between the parties and their successors in interest, no
evidence of such terms other than the contents of the written agreement.

I. Essence of the Rule:

It forbids or prohibits any attempt to vary, contradict, or modify the terms of a written agreement
by the use of testimonial/oral evidence.

II. Basis and Reason:

The Principle of Integration of Jural Acts. The written agreement is the final culmination of the
negotiation and discussion of the parties as to their respective proposals and counter-proposals
and is the final and sole repository, memorial and evidence of what was finally agreed upon.
Therefore, whatever is not found in the written agreement is deemed to have been abandoned,
disregarded, or waived by them. Only those contained in the written agreement are considered
the only ones finally agreed upon and no other. Thus oral testimony will not be permitted to
show there were other agreements or terms between the parties.

III. Purposes:

(i) to give stability and permanence to written agreements otherwise they can be changed
anytime by mere testimony, then written agreements would serve no useful purpose
(ii) to remove the temptation and possibility of perjury which would be rampant if
oral/parole evidence
were allowed as a party may resort to such testimony in order to either escape compliance
with his
obligation, or to create fictitious terms favorable to him.

IV . Requirements for the Application of the Rule

1. That there be a valid written contract or a written document which is contractual in nature in
that it involves the disposition of properties, creation or rights and imposition of obligations
a). Void contracts do not create any right and produces no legal effects
b). The contract maybe in any written form whether in the standard form or as worded by the
parties themselves
c). The document may be signed or not as in the case of way bills, tickets
d). The rule does not cover mere receipts of money or property since these are incomplete and
are not considered to be the exclusive memorial of the agreement and are inconclusive
e). However a “Statement of a Fact”, as distinguished from statements which constitute “Terms
of the Contractual Agreement” maybe varied, such as statements as to the personal
qualifications of the parties.
2. That there is a dispute as to the terms of the agreement
3. That the dispute is between the parties to the contract or their successors or that the rule is
invoked by one who is given a right or imposed an obligation by the contract. This is because
the binding effect of a contract is only upon the parties thereto or their successors.

V. Exceptions to the Rule

A party may present evidence to modify, explain or add to the terms of written agreement if he
or she puts in issue in a verified pleading:

(a) An intrinsic ambiguity, mistake or imperfection in the written agreement;

(b) The failure of the written agreement to express the true intent and agreement of the parties
thereto;

(c) The validity of the written agreement; or

(d) The existence of other terms agreed to by the parties or their successors in interest after the
execution of the written agreement.

The term “agreement” includes wills. .( Sec 10 of Rule 130 of the 2019 Proposed Amendments
to the Revised Rules on Evidence )

NOTE :The parol evidence rule does not apply , and may not properly be invoked by either
party to the litigation against the other , where at least one party to the litigation against the other
, where at least one party to suit is not a party to the written instrument in question and does not
base a claim or assert a right originating in the instrument or the relation established thereby .
Thus , if one of the parties to the case is complete stranger to the contract involved therein, he is
not bound by this rule and can introduce extrinsic evidence against the efficacy of the writing (
Lethugas vs CA GR. L- 39972 )
 ACTIVITY 1

NAME: DATE

YEAR/BLOCK: SUBJECT :

DIRECTION : Explain in your own words and understanding the questions propounded below in 80
words .

1. When a documentary evidence can be admissible in court?

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2. Discuss the difference between documentary and electronic evidence.

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3. How documentary evidence and electronic evidence authenticate by an expert witness during
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 REFLECTIVE ANALYSIS

DIRECTION : Write your own reflection about the Rules on Admissibility on Documentary and
Electronic Evidence in 100 words

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