I. Admissibility

8/17/2019 I. Admissibility

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I. Admissibility

A. Rule 128, Sections 1 to 4Section 1 . Evidence defined . — Evidence is the means, sanctioned by these rules,of ascertaining in a judicial proceeding the truth respecting a matter of fact. (1)

Section 2 . Scope . — The rules of evidence shall be the same in all courts and in alltrials and hearings, except as otherwise provided by law or these rules. (2a)

Section 3 . Admissibility of evidence . — Evidence is admissible when it is relevantto the issue and is not excluded by the law of these rules. (3a)

Section 4 . Relevancy ; collateral matters . — Evidence must have such a relation tothe fact in issue as to induce belief in its existence or non-existence. Evidence oncollateral matters shall not be allowed, except when it tends in any reasonabledegree to establish the probability or improbability of the fact in issue. (4a)

1. Reyes vs. Court of Appeals, 216 SCRA 25G.R. No. 96492 | November 26, 1992Petitioners: Romeo Reyes, Angel Parayao & Emil io MananghayaRespondents: Court of Appeals, Eufrocina dela Cruz & Violeta delos ReyesPonente: Justice Rodolfo Nocon

Summary: Juan Mendoza is the owner of two farm lots located in Candaba,Pampanga. These were tenanted and cultivated by Julian dela Cruz. Upon Julian’sdeath, his wife Eufrocina succeeded him as the bona fide tenant of the lots.However, Olymipio Mendoza, son of Juan, in conspiracy with the petitiioners seizedthe land and prevented Eufrocina, her daughter Violeta and their workers fromentering and working on the land. Eufrocina file suit in the agrarian court, whichruled in her favor. CA affirmed. Petitioners were ordered to return the l and, respectEufrocina’s tenancy rights and pay the amount of harvest until the land is returned.Petitioners question this. I: W/N petitioners are solidarily liable wi th Olympio for thepayment to Eufrocina of the amount of the harvests. YES! SC said that petitionerswant the evidence to be reexamined. This is not proper under a Rule 45 petition. SCadopted the ratio of the CA. The lower court did not err when it considered the

affidavits of Eufrocina and another wi tness although these were not presented forcross-examination. Under Sec. 16 of PD 946, the Rules of Court are not applicablein agrarian reform cases, even in a suppletory character; in the hearing,investigation and determination of any question or controversy, affidavits andcounter-affidavits may be allowed and are admissible in evidence. Finally, inagrarian cases, the quantum of evidence required is no more than substantialevidence. It has been defined to be such relevant evidence as a reasonable mindmight accept as adequate to support a conclusion and its absence is not shown bystressing that there is contrary evidence on record, direct or circumstantial.

Facts:• Juan Mendoza, father of Olympio Mendoza, is the owner of Farm Lots

Nos. 46 and 106, Block 2, Psd-38453 of the Bahay Pare Estate, Bahay

Pare, Candaba, Pampanga, with an area of 23,000 square meters and19,000 square meters, respectively. Devoted to the production of palay,the lots were tenanted and cultivated by Julian dela Cruz, husband ofrespondent Eufrocina dela Cruz.

• Eufrocina alleged that upon the death of Julian, she succeeded him asbona fide tenant of the lots; that between July 7 to July 15, 1984, OlympioMendoza, in conspiracy with the petitioners, prevented her daughterVioleta and her workers through force, intimidation from entering andworking on the subject premises.

o They refused to vacate and surrender the lots, thus violating hertenancy rights.

o Eufrocina therefore prayed for judgment for the recovery ofpossession and damages with a writ of preliminary mandatoryinjunction.

• Petitioners Reyes, Parayao, Aguinaldo and Mananghaya, duly electedand/or appointed barangay officials of Bahay Pare, Candaba, Pampanga,denied interference in the tenancy relationship existing between Eufrocinaand Mendoza, particularly in the cultivation of the latter's farm lots.

o Claiming that they have always exercised fairness, equity, reasonand impartiality in the discharge of their official functions, theyasked for the dismissal of the case and claimed moral damagesand attorney's fees in the total amount of P165,000.00.

• For his part, Mendoza raised abandonment, sublease and mortgage of thefarm lots without his consent and approval, and non-payment of rentals,irrigation fees and other taxes due the government, as his defenses. Healso demanded actual and exemplary damages, as well as attorney's fees.

• During the pendency of the case in the agrarian court, Mendoza was inpossession of the lots and had cultivated the same. Upon motion ofplaintiff, the agrarian court directed its Deputy Sheriff to supervise theharvesting of the palay crops, to cause the threshing thereof and to depositthe net harvest (after deducting from the expenses incurred), in a bondedwarehouse of the locality subject to the disposition of the court.

• Agrarian Court ! Ordered petitioners to restore possession of thedisputed land to Eufrocina.

• CA ! Affirmed the agrarian court's decision with the modification that Lot

106 is not covered by it. The tenancy rights of Eufrocina should berespected. Eufrocina should be paid the amount of harvest until the land i ssurrendered.

Issue: W/N petitioners can be held liable, jointly and severally, with the otherdefendants, for the harvests of the litigated property, Lot No. 46, or the moneyequivalent thereof starting from the principal crop years of 1984 and every harvesttime thereafter until the possession and cultivation of the aforestated landholdingare finally surrendered to Eufrocina. ! YES!!!

Ratio:• Petitioners’ Contention ! They are not liable jointly and severally with

Olympio Mendoza and Severino Aguinaldo because the present petition






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reports the incident to anybody. For almost 10 days, she just kept the incident toherself until she was able to muster enough courage to tell her brother-in-law,Orlando Pioquinto, who in turn informed Alejandro, the victim’s father, about therape of his daughter. Alejandro did not waste time and immediately asked Esceleato see a doctor for medical examination and eventually file a complaint after theissuance of the medical certificate. Turco, meanwhile, alleged that he and Esceleawere sweethearts. The trial court found Turco guilty of the charge. Issue: 1. W/N thelower court erred in finding the appellant guilty of rape. NO 2. W/N the appellant’scontention that the medical certificate may not be considered is with merit. Held: 1.No. The Supreme Court agrees with the lower court’s finding of credibility in thetestimony and evidence presented by the victim, and finds the appellant guilty ofrape beyond reasonable doubt. 2. Yes. With regards to appellant’s argument on theproof of medical certificate, while the certificate could be admitted as an exceptionto the hearsay rule since entries in official records constitute exceptions to thehearsay evidence rule, since it involved an opinion of one who must first beestablished as an expert witness, it could not be given weight or credit unless thedoctor who issued it is presented in court to show his qualifications. Emphasis mustbe placed on the distinction between admissibility of evidence and the probativevalue thereof. Evidence is admissible when it is relevant to the issue and is notexcluded by the law or the rules or is competent. Since admissibility of evidence isdetermined by its relevance and competence, admissibility is, therefore, an affair oflogic and law. On the other hand, the weight to be given to such evidence, once

admitted, depends on judicial evaluation within the guidelines provided in Rule 133and the jurisprudence laid down by the Court. Thus, while evidence may beadmissible, it may be entitled to little or no weight at all. Conversely, evidence whichmay have evidentiary weight may be inadmissible because a special rule forbids itsreception. Withal, although the medical certificate is an exception to the hearsayrule, hence admissible as evidence, it has very little probative value due to theabsence of the examining physician. Nevertheless, it cannot be said that theprosecution relied solely on the medical certificate. In fact, reliance was made onthe testimony of the victim herself which, standing alone even without medicalexamination, is sufficient to convict. It is well-settled that a medical examination isnot indispensable in the prosecution of rape.

FACTS:• Rodegelio Turco, Jr. was charged with the crime of rape in the RTC of

Basilan of, stationed in Isabela, Basilan, under the following Information:o That on or about the 8th day of July, 1995, and within the

jurisdiction of this Honorable Court, viz., at Km. 6, BegangBarangay, Municipality of Isabela, Province of Basilan,Philippines, the above-named accused, by the use of force, threatand intimidation, did then and there willfully, unlawfully andfeloniously grab the undersigned complainant by her neck, coverher mouth and forcibly make her lie down, after which the saidaccused mounted on top of her and removed her short pant andpanty. Thereafter, the said accused, by the use of force, threatand intimidation, inserted his penis into the vagina of theundersigned complainant and finally succeeded to have carnal

knowledge of her, against her will. CONTRARY TO LAW.• At his arraignment, Totong entered a plea of not guilty, after which trial

ensued.• The prosecution's version of the generative facts, as gathered from the

testimony of its witnesses - Alejandra Tabada, mother of the victim; PO3Celso Y. Tan Sanchez, the police officer who investigated the case;Orlando Pioquinto, brother-in-law of the victim; Escelea Tabada, the 13-year-old victim; and Felicitas delos Santos Timorata, the medical recordclerk who used to be the medical officer under Dr. Rimberto Sanggalang,the physician who physically examined the victim after the incident - isabstracted in the Appellee's Brief in this wise:

o Escelea Tabada and appellant Totong were neighbors in lowerBegang, Isabela, Basilan, their houses being only about 60meters apart.

o Escelea was staying with her father, Alejandro and her deafgrandmother, Perseveranda.

o She was 12 years and 6 months old at the time of incident.• The nightmare of Escelea began in the evening of July 1995. At around 7

p.m. in the evening, Escelea was accompanied by a certain Cory Macapili,the granddaughter of her neighbor.

• Cory left upon reaching Escelea's home. Escelea went upstairs to join hergrandmother who was already sleeping in the room. About to enter the

said room, Escelea heard a call from outside. She recognized the voiceand when she asked who, the party introduced himself as the appellant.

• She recognized Turco immediately as she had known him for 4 years andappellant is her second cousin. Unaware of the danger that was about tobefall her, Escelea forthwith opened the door. Turco, with the use of towel,covered Escelea's face. Turco, aside from covering the victim's mouth,even placed his right hand on the latter's neck.

• Appellant bid Escelea to walk. When they reached a grassy part, near thepig pen which was about 12 meters away from the victim's house,appellant lost no time in laying the victim on the grass, laid on top of thevictim and took off her shortpants and panty.

o Escelea tried to resist by moving her body but to no avail. Appellant succeeded in pursuing his evil design-by forcibly

inserting his penis inside Escelea's private part. The victim feltterrible pain. Still dissatisfied, after consummating the act,appellant kissed and held the victim's breast.

o Thereafter, he threatened to kill her if she reports the incident toanybody, thus: "He threatened me, that if you will reveal theincident to anybody I will kill you.

• Finally, after having satisfied his lust, Turco hurriedly went home. Escelea,on the other hand, upon reaching home, discovered that her shortpantsand panty were filled with blood.

• For almost 10 days, she just kept to herself until she was able to musterenough courage to tell her brother-in-law, Orlando Pioquinto, about thesaid incident.

• Orlando in turn informed Alejandro, the victim's father, about the rape of his




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daughter. Alejandro did not waste time and immediately asked Escelea tosee a doctor for medical examination.

• The defense presented Leonora Cabase, neighbor of accused-appellant;her granddaughter Corazon Macapili, and accused-appellant himself.

Accused-appellant denied the charge. The defense that the victim and himwere sweethearts was also advanced. Leonora Cabase mentioned this inher direct testimony.

RTC: Found accused guilty.

ISSUE:I. W/N the accused is guilty of rape based on the testimonies of the

complainant and witnesses? YES. II. W/N the guilt of the accused was proved beyond reasonable doubt

based on the affidavits and oral testimonies of the complainant and itswitnesses? YES.

HELD: WHEREFORE , the appealed decision is hereby AFFIRMED, with theMODIFICATION that accused-appellant Rodegelio Turco, Jr. aka "Totong" isordered to indemnify the offended party, Escelea Tabada, in the amount of P50,000Pesos in addition to the sum of P50,000.00 already awarded by the trial court asmoral damages. SO ORDERED.

CONTENTION:o He particularly argues that his conviction is not supported by proof beyond

reasonable doubt considering that other than the written statement of thecomplainant before the Police Station of Isabela and before the Clerk ofCourt of the MTC, and her testimony during direct examination, no otherevidence was presented to conclusively prove that there was ever rape atall; that she only presumed that it was accused-appellant who attacked hersince she admitted that immediately upon opening the door, theperpetrator hastily covered her face with a towel; that nothing in hertestimony clearly and convincingly shows that she was able to identifyaccused-appellant as the perpetrator; that complainant implicatedaccused-appellant only because her father forced her to do so; and lastly,that no actual proof was presented that the rape of the complainantactually happened considering that although a medical certificate waspresented, the medico-legal officer who prepared the same was notpresented in court to explain the same.

SC agrees with the RTC• As aptly recalled by the trial court, there are three guiding principles in the

review of rape cases, to wit: (1) an accusation of rape can be made withfacility; it is difficult to prove but more difficult for the person accused,although innocent, to disprove; (2) in view of the intrinsic nature of thecrime of rape where only two persons are usually involved, the testimonyof the complainant is scrutinized with extreme caution; and (3) theevidence for the prosecution stands or falls on its own merits and cannotbe allowed to draw strength from the weakness of the defense.

o Accordingly, the primordial consideration in a determinationconcerning the crime of rape is the credibility of complainant'stestimony.

Complainant narrated the incident in this wise:Q While you went upstairs and about to enter the room of your grandmother, didyou hear anything? Yes, sir.Q What was that? I heard a call, sir.Q How was the call made? It is just by saying: "Lea".Q After you heard your name was mentioned, what did you say if any? Ianswered: "Who is that?"Q Did the person calling your name answer you? I heard, sir, "me Totong".Q When you say the person who called your name "Lea" was "Totong", you arereferring to whom? Rodegelio, sir.Q When you say "Rodegelio", you are referring to Rodegelio Turco, Jr., theaccused in this case? Yes, sir.Q After the person calling your name "Lea" identified himself as "Totong", what didyou do? I opened the door, sir.Q And when you opened the door, what happened next? Totong with the use oftowel covered my face, sir.Q Aside from covering your face with a towel, what else did he do? He coveredmy mouth, sir.Q Aside from covering your mouth, what else did he do? He placed his right hand

on my neck, sir.Q Aside from placing his right hand ... when he placed his right hand on yourneck, where was he? Was he infront or behind?

A He was at my back, sir.Q After placing his right hand on your neck behind you, what did "Totong" do nextwith that position? He covered my mouth, sir.Q After covering your mouth and face, what did he do next? He told me to walk,sir.Q Where did he bring you? I don't know exactly where he brought me, sir.Q But you know very well that he brought you to a certain place? I don't knowexactly the place where he brought me, sir.Q Is it far from your house where you were forcibly taken? Yes, sir.Q Do you have a copra kiln?

ATTY. G.V. DELA PENA III: The witness already answered that she does not knowwhere she was brought, leading, Your Honor.COURT: (Questioning the witness)Q According to you, from your house you were brought by the accused to a placewhich you do not know? Yes, Your Honor.Q What place? Pig pen, Your Honor.Q Do you know the owner, of that pig pen? Our pig pen, Your Honor.Q Who owned that pig pen? My father, Your Honor.Q How far is that pig pen to your house? (From this witness stand to that roadoutside of this building).COURT: It is about 12 meters. Alright, continue.PROSECUTOR M.L. GENERALAO: (Continuing)Q You stated in answer to the question of the Honorable Court that you were




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brought to the pig pen or the place where you were sexually abused, were youplace inside or outside?

ATTY. G.V. DELA PENA III: Leading, Your Honor.PROSECUTOR M.L. GENERALAO: I will withdraw.Q Will you please explain to the Court what particular place of the pig pen that youwere brought by the accused?

A Inside the grasses, sir.Q When you were already inside the grasses near this pig pen, what did theaccused do to you? He put me down, sir.Q When you were already down on the ground, what did the accused do next? Hemounted on me, sir.Q And when the accused was already on top of you, what did he do next? Hemolested me, sir.Q Before he molested you, did he remove anything from your body? Yes, sir.Q What? My shortpants and panty, sir.Q You stated that the accused while on top of you removed your pants and panty,did he totally remove it from your body?

A Yes, sir.Q After removing your shortpants and panty, what else did the accused do? Heabused me, sir.Q You said that he abused you, how did he abuse your? He put his private partinside my private part, sir.

Q When the accused was on top of you and he forcibly abused you, what did youdo? I tried to move my body, sir.Q While you were trying to move your body and while the accused was on top ofyou, what did the accused do?

A He tried to insert his private part to my private part, sir.Q And was he able to insert his private part? Yes, sir.Q What did you feel when his private part was already inside your private part? Ifelt pain, sir.Q Will you please explain why you felt when the private part of the accused wasalready inside your private part?

A I felt pain when he already finished, sir.Q By the way, before July 8, 1995, were you had been raped? Will you please tellus whether you have already experienced or you have already your menstruation atthat time? No, sir.Q Now you stated to the Honorable Court ... after the accused had sexuallyabused you and you said you felt pains after he consumated the sexual act, afterthat what did he do next after consumating the act?

A After consumating his desire, he raised my panty and shortpants then hekissed me and hold my nipple, sir.Q After the accused had raised your shortpants and panty, embraced you, kissedyou and hold your breast, did he tell you anything? He threatened me, "that if youwill reveal the incident to anybody I will kill you."Q In what dialect? In Chavacano, sir. After the accused embraced you, kissed youand hold your nipple and threatened you in Chavacano dialect, what happened nextafter that? No more, sir.

ON VICTIM’S CREDIBILITY• On cross-examination, the victim did display some apparent confusion

when the defense counsel asked her about the events that transpiredbefore the ill-fated July 8, 1995. The query prompted her to narrate theincident prior to said date when she also watched television at the home ofLeonora Cabase, and that when she arrived home, accused-appellantcame and called her "Lea" and when she asked who was it, he answered"so Totong". When she asked what he wanted, he said he wanted toborrow a guitar. She said that she could not lend him the guitar since herfather was not yet around. He insisted but to no avail, and hence he justwent home. She went to sleep afterwards.

o On re-direct examination, she clarified that when accused-appellant came to borrow the guitar on July 8, 1995, it was about5:30 o'clock in the afternoon. Lastly, she said that the incident ofthe borrowing of the guitar and the incident that transpired at 7o'clock in the evening on July 8, 1995 were separate incidents.

• Significantly, three things could be perceived: complainant's youth, herapparent confusion concerning the events that transpired, and her fear ofboth accused-appellant and her father.

• At the outset, it should be remembered that the declarations on the witnessstand of rape victims who are young and immature deserve full credence.

• The victim's relatively low level of intelligence explains the lapses in her

testimony, having intermingled two incidents. Nonetheless, it can easily begathered from the record that the defense counsel may have contributed tothis confusion when he asked the victim what transpired "before" theincident. Minor lapses in a witness' testimony should be expected when aperson recounts details of an experience so humiliating and so painful torecall as rape.

• The Court finds that the victim had no motive to falsely testify againstaccused-appellant. Her testimony deserves the credence accorded theretoby the trial court. Pertinently, no woman, especially one of tender age,would concoct a story of defloration, allow an examination of her privateparts, and thereafter pervert herself by being subjected to a public trial ifshe was not motivated solely by the desire to have the culprit apprehendedand punished.

•

Another point to consider is the blood relationship between accused-appellant and the victim. At this juncture, we reiterate the tri al court'sobservation thereon - the mother of accused-appellant being a first degreecousin of the victim's father, that makes the victim and accused-appellantsecond degree cousins or sixth civil degree relatives. Filipino culture,particularly in the provinces, looks at the extended family as closely-knitand recognizes the obligation of an older relative to protect and take careof a younger one.

• As regards the initial delay of the victim in reporting the rape incident,suffice it to state that the delay and initial reluctance of a rape victim tomake public the assault on her virtue is not uncommon . In the case at bar,the victim's fear of her father who had moral ascendancy over her, wasexplicit. She testified that she did not disclose the incident to her father




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because of fear both of her father as well as of accused-appellant. Suchreaction is typical of a twelve-year-old girl and only strengthens hercredibility.

SWEETHEART THEORY: FAIL• The theory initially advanced by the defense in the proceedings before the

court a quo is the "sweetheart theory". In this regard, .we agree with thetrial court that the "sweetheart story" was a mere concoction of accused-appellant in order to exculpate himself from criminal liability.o People vs. Venerable: we held that the sweetheart theory of the

accused was unavailing and self-serving where he failed to introducelove letters, gifts, and the like to attest to his alleged amorous affairwith the victim. Hence, the defense cannot just present testimonialevidence in support of the theory that he and the victim weresweethearts. Independent proof is necessary, such as tokens,mementos, and photographs.

o We, therefore, conclude that whatever familiarity and supposedcloseness there was between accused-appellant and the victim, isexplained not by an intimate relationship but by their bloodrelationship. Hence, it is noticeable that on the day of the incident,when accused-appellant called upon the victim and the l atter askedwho he was, the victim knew right away that her caller was accused-

appellant when the latter replied "Si Totong".• Accused-appellant, in his direct testimony, tried to deny any blood relationwith the victim Escelea Tabada and touched on the apparent friendshipbetween them, as follows:

Q You mentioned earlier that you know the complainant, why do you know thecomplainant Escelea Tabada?

A I only know her when I was already in jail, sir.Q You mean to say that you never knew the complainant before you werearrested? I do not know her, sir.COURT: (Questioning the witness)Q Why, are you not related to the Tabadas? No, Your Honor.

ATTY. G.V. DELA PENA III: (Continuing)Q Have you ever seen the complainant in Begang? The complainant is at Begang,sir.Q And you mentioned that you were not related with the complainant, Mr.Witness? Yes, sir, we are only close.Q So, in other words, Mr. Witness, you and the complainant Escelea Tabada werealready friends? Yes, sir.However, on cross-examination, he notably crumbled:Q Now, you stated in your direct examination that you are not related to theTabadas in San Antonio Begang, Isabela, Basilan, is that right? Yes, sir, we areonly close.Q Is it not a fact Mr. Witness that your mother is the first cousin of the father ofEscelea Tabada? They are cousins, sir.Q So, indeed you are related to the Tabadas? Yes, sir.Q So, when you said that you are not related to the Tabadas, you were not telling

the truth? Yes, sir. (haha bobo)

MAIN: Accused-appellant argues that no actual proof was presented that therape actually happened since the medico-legal officer who prepared themedical certificate was not presented in court to explain the same.

• In People vs. Bernaldez, the court a quo erred in giving weight to themedical certificate issued by the examining physician despite the failure ofthe latter to testify. While the certificate could be admitted as an exceptionto the hearsay rule since entries in official records (under Section 44, Rule130, Rules of Court) constitute exceptions to the hearsay evidence rule,since it involved an opinion of one who must first be established as anexpert witness, it could not be given weight or credit unless the doctor whoissued it is presented in court to show his qualifications. We placeemphasis on the distinction between admissibility of evidence and theprobative value thereof.

• Evidence is admissible when it is relevant to the issue and is not excludedby the law or the rules (Section 3, Rule 128, Rules of Court) or iscompetent. Since admissibility of evidence is determined by its relevanceand competence, admissibility is, therefore, an affair of logic and law. Onthe other hand, the weight to be given to such evidence, once admitted,depends on judicial evaluation within the guidelines provided in Rule 133and the jurisprudence laid down by the Court.

•

Thus, while evidence may be admissible, it may be entitled to little or noweight at all. Conversely, evidence which may have evidentiary weightmay be inadmissible because a special rule forbids its reception.

• Withal, although the medical certificate is an exception to the hearsay rule,hence admissible as evidence, it has very little probative value due to theabsence of the examining physician. Nevertheless, it cannot be said thatthe prosecution relied solely on the medical certificate (stating that therewas "[h]ymen rupture, secondary to penile insertion" as well as "foul-smelling discharges." The diagnosis was "[r]uptured hymen secondary torape".

• In fact, reliance was made on the testimony of the victim herself which,standing alone even without medical examination, is sufficient to convict. Itis well-settled that a medical examination is not indispensable in the

prosecution of rape.o The absence of medical findings by a medico-legal officer doesnot disprove the occurrence of rape . It is enough that theevidence on hand convinces the court that conviction is proper . Inthe instant case, the victim's testimony alone is credible andsufficient to convict.

• As a final observation, it must be said that the amount awarded by the trialcourt in favor of Escelea Tabada as indemnification (P50,000.00 for moraldamages) for the rape is incomplete based on established jurisprudenceand must be modified. In People vs. Betonio (279 SCRA 532 [1977]), weheld that the award of P50,000.00 to the victim as indemnity for rape notcommitted or qualified by any of the circumstances under the DeathPenalty Law, needs no proof other than the conviction of the accused for






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to claim inheritance, may be joined in one complaint is not new inour jurisprudence.

o Briz vs. Briz, et al. : There is no absolute necessity requiring thatthe action to compel acknowledgment should have been institutedand prosecuted to a successful conclusion prior to the action inwhich that same plaintiff seeks additional relief in the character ofheir.

• Although the instant case deals with support rather than inheritance, as inTayag , the basis or rationale for integrating them remains the same. W/NMartin is entitled to support depends completely on the determination offiliation. A separate action will only result in a multiplicity of suits, givenhow intimately related the main issues in both cases are. The declarationof filiation is entirely appropriate to these proceedings.

DNA • Arnel posits that DNA is not recognized by this Court as a conclusive

means of proving paternity. He also contends that compulsory testingviolates his right to privacy and right against self-incrimination. Thesecontentions have no merit .

History of past decisions involving DNA testing• People v. Teehankee (1995): where the appellant was convicted of murder

on the testimony of 3 eyewitnesses. Obiter dictum: “while eyewitnessidentification is significant, it is not as accurate and authoritative as thescientific forms of identification evidence such as the fingerprint or the DNAtest result .”

• Pe Lim v. CA (1997): we cautioned against the use of DNA because “DNA,being a relatively new science, had not as yet been accorded officialrecognition by our courts. Paternity (would) still have to be resolved bysuch conventional evidence as the relevant incriminating acts, verbal andwritten, by the putative father.”

• Tijing v. CA (2001): Parentage will still be resolved using conventionalmethods unless we adopt the modern and scientific ways available.Fortunately, we have now the facility and expertise in using DNA test foridentification and parentage testing. We now have the capability to conductDNA typing using short tandem repeat (STR) analysis.

o DNA of a person has 2 copies, one copy from the mother and theother from the father. The DNA from the mother, the allegedfather and child are analyzed to establish parentage. Of course,being a novel scientific technique, the use of DNA test asevidence is still open to challenge.

o Courts should not hesitate to rule on the admissibility of DNAevidence. Courts should apply the results of science whencompetently obtained in aid of situations presented, since to rejectsaid result is to deny progress.

• People v. Vallejo (2002): ( first real breakthrough of DNA as admissible andauthoritative evidence in Philippine jurisprudence ) The rape and murdervictim’s DNA samples from the bloodstained clothes of the accused were

admitted in evidence. “the purpose of DNA testing is to ascertain whetheran association existed between the evidence sample and the referencesample.”

• People v. Janson (2003): we acquitted the accused charged with rape forlack of evidence because “doubts persisted in our mind as to who were thereal malefactors. How we wish we had DNA or other scientific evidence tostill our doubts!”

• Tecson, et al. v. COMELEC (2004): (issue of filiation of presidentialcandidate FPJ): In case proof of filiation or paternity would be unlikely tosatisfactorily establish or would be difficult to obtain, DNA testing, whichexamines genetic codes obtained from body cells of the illegitimate childand any physical residue of the long dead parent could be resorted to.

• People v. Yatar : Affirmed the conviction of the accused for rape withhomicide, the principal evidence for which included DNA test results. DNAsamples from semen recovered from a rape victim’s vagina were used topositively identify Yatar as the rapist. Yatar claimed that the compulsoryextraction of his blood sample for DNA testing, as well as the testing itself,violated his right against self-incrimination.

o Deoxyribonucleic Acid, or DNA, is a molecule that encodes thegenetic information in all living organisms. A person’s DNA is thesame in each cell and it does not change throughout a person’slifetime. No 2 individuals have the same DNA, with the notable

exception of identical twins.o In assessing the probative value of DNA evidence, courts should

consider the following factors: how the samples were collected,how they were handled, the possibility of contamination of thesamples, the procedure followed in analyzing the samples,whether proper standards and procedures were followed inconducting the tests, and the qualification of the analyst whoconducted the tests.

o Prevailing doctrine in the US: Daubert v. Merrell Dow : Pertinentevidence based on scientifically valid principles could be used aslong as it was relevant and reliable. Judges were allowed greaterdiscretion over which testimony they would allow at trial, includingthe introduction of new kinds of scientific techniques. DNA typingis one such novel procedure.

o Under Philippine law, evidence is relevant when it relatesdirectly to a fact in issue as to induce belief in its existenceor non-existence. In the Yatar case, DNA evidence obtainedthrough PCR testing and utilizing STR analysis is relevant andreliable since it is reasonably based on scientifically validprinciples of human genetics and molecular biology.

Constitutionality of compulsory DNA testing and the admissibility of theresults as evidence.

• The contention is untenable. The kernel of the right is not against allcompulsion, but against testimonial compulsion. The right against self-incrimination is simply against the legal process of extracting from the lips




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of the accused an admission of guilt. It does not apply where the evidencesought to be excluded is not an incrimination but as part of objectevidence. (ex. photographs, hair and other bodily substances, pregnancytests, expulsion of morphine from one’s mouth and tracing of one’s foot)

• Jimenez v. Cañizares : Authorized the examination of a woman’s genitalia,in an action for annulment filed by her husband, to verify his claim that shewas impotent, her orifice being too small for his penis. Some of theseprocedures were, to be sure, rather invasive and involuntary, but all ofthem were constitutionally sound. DNA testing and its results are nowsimilarly acceptable.

• Nor does Arnel’s invocation of his right to privacy persuade us.o Ople v. Torres : We struck down the proposed national

computerized identification system embodied in AO 308, we said:In no uncertain terms, we also underscore that the right to privacydoes not bar all incursions into individual privacy. The right is notintended to stifle scientific and technological advancements thatenhance public service and the common good. .. Intrusions intothe right must be accompanied by proper safeguards thatenhance public service and the common good.

• Historically, it has mostly been in the areas of legality of searches andseizures, and the infringement of privacy of communication where theconstitutional right to privacy has been critically at issue. Arnel’s case

involves neither and, as already stated, his argument that his right againstself-incrimination is in jeopardy holds no water. His constitutional rightsare not in any way being violated. If, in a criminal case, an accused whosevery life is at stake can be compelled to submit to DNA testing, we see noreason why, in this civil case, petitioner herein who does not face such direconsequences cannot be ordered to do the same.

History of DNA in US• DNA paternity testing first came to prominence in the United States, where

it yielded its first offi cial results sometime in 1985.• Wilson v. Lumb : DNA testing is so commonly accepted that, in some

instances, ordering the procedure has become a ministerial act. The SC ofSt. Lawrence County, New York allowed a party who had alreadyacknowledged paternity to subsequently challenge his prioracknowledgment. Under the law, the Family Court examiner had the duty,upon receipt of the challenge, to order DNA tests.

o Under the NY Family Court Act: xxx If the record or report of theresults of any such genetic marker or DNA test or tests indicate atleast a 95% probability of paternity, the admission of such recordor report shall create a rebuttable presumption of paternity, andshall establish, if unrebutted, the paternity of and liability for thesupport of a child.

o (b) Whenever the court directs a genetic marker or DNA testpursuant to this section, a report made may be received inevidence if offered by any party.

• R.E. v. C.E.W.: DNA tests were used to prove that H.W., previously

thought to be an offspring of the marriage between A.C.W. and C.E.W.,was actually the child of R.E. with whom C.E.W. had, at the time ofconception, maintained an adulterous relationship.

• Erie County Department of Social Services on behalf of Tiffany M.H. v.Greg G. : G.G., who had been adjudicated as T.M.H.’s father by default,was allowed to have the said judgment vacated, even after 6 years, oncehe had shown through a genetic marker test that he was not the child’sfather. G.G. only requested the tests after the Department of SocialServices sought an increase in his support obligation to her.

• Greco v. Coleman : Due to the difficulty of determining paternity before theadvent of DNA testing, non-modifiable support agreements werenecessary. While prior blood-testing methods could exclude some malesfrom being the possible father of a child, those methods could notaffirmatively pinpoint a particular male as being the father. Contestedpaternity actions were often no more than credibility contests.

o Allowing parties the option of entering into private agreements inlieu of proving paternity eliminated the risk that the mother wouldbe unable meet her burden of proof (that she was only sexuallyinvolved with one man--the putative father)

• Amendments to Michigan’s Paternity law have included the use of DNAtesting: xxx (5) If the probability of paternity determined by the qualifiedperson conducting the blood or tissue typing or DNA identification profiling

is 99% or higher, and the DNA identification profile and summary reportare admissible, paternity is presumed. If the results of the analysis ofgenetic testing material from 2 or more persons indicate a probability ofpaternity greater than 99%, the contracting laboratory shall conductadditional genetic paternity testing until all but 1 of the putative fathers iseliminated, unless the dispute involves 2 or more putative fathers whohave identical DNA.

• Rafferty v. Perkins : DNA test results showing paternity were sufficient tooverthrow the presumption of legitimacy of a child born during the courseof a marriage:

• S.J.F. and J.C.F. v. R.C.W. : Upheld an order for genetic testing given bythe CA, even after trial on the merits had concluded without such orderbeing given.

•

Kohl v. Amundson: Even default judgments of paternity could be vacatedafter the adjudicated father had, through DNA testing, established non-paternity.

• M.A.S. v. Mississippi Dept. of Human Services : Even if paternity wasestablished through an earlier agreed order of fi liation, child support andvisitation orders could still be vacated once DNA testing establishedsomeone other than the named individual to be the biological father.

Back to the case• We find no grave abuse of discretion on the part of the CA for upholding

the orders of the trial court which both denied the Arnel’s motion to dismissand ordered him to submit himself for DNA testing.

• Arnel has in no way shown any arbitrariness, passion, prejudice or




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personal hostility that would amount to grave abuse of discretion on thepart of the CA. The CA acted entirely within its jurisdiction in promulgatingits decision and resolution, and any error made would have only been anerror in judgment. As we have discussed, however, the decision of therespondent court, being firmly anchored in law and jurisprudence, wascorrect.

• We reiterate our stand that DNA testing is a valid means of determiningpaternity.

WHEREFORE , in view of the foregoing, the petition is hereby DENIED. The CA’sdecision is hereby AFFIRMED in toto.

B. Relevance

1. Lopez vs. Hessen, 365 P.2d 448 (1961)Supreme Court of New Mexico, Aug. 22, 1961. Plaintiff-Appellant: Jesse G. LOPEZDefendants-Appellees: Robert HEESEN and Sears, Roebuck and Company

The CASE: Action against buyer and seller of allegedly defective shotgun whichhad discharged while buyer was hunting, wounding the plaintiff. The SupremeCourt, Chavez, J., held that expert opinion testimony as to whether the safety

device used on the shotgun was negligently or defectively designed merelyconstituted evidence which the jury could disregard, and was not objectionable asusurping the function of the jury in determining the ultimate issues of fact.

Facts:• Jesse G. Lopez, filed suit against Robert Heesen, alleging that Heesen

unlawfully, violently, maliciously and feloniously assaulted and shot himwith a shotgun, thereby infli cting dangerous and painful wounds andinjuries to appellant, causing him great bodily and mental pain andanguish, all to his damage in the total sum of $80,000, which included$25,000 punitive damages.

• Heesen, an Air Force officer, purchased a J. C. Higgins Model 51, 30.06rifle from the store of Sears. Said rifle has a bolt action known more

particularly as a ‘Mauser type action’ with which Heesen was familar.• Heesen, although experienced in hunting, was not familiar with the HigginsModel 51 and had never used such a rifle. The safety mechanism on therifle is what is known as a ‘Class 1’ safety, meaning that it interrupts thefiring pin directly. The safety lever is mounted on the left side of the gun tothe rear of the bolt assembly. It is a two-position safety with the actionlocked when the safety lever is in a raised position. To release the safety,you push the safety lever to the left and down to a horizontal position andthe gun is then ready to fire.

• At the time of the purchase Heesen was given an instruction pamphletwhich he read. Said pamphlet explained the composition of the rifle andgave operating instructions, including the method to be pursued to makethe gun ‘safe.

• Villella did not give Heesen any instructions as to the use of the safetymechanism. There was a telescopic sight advertised for sale for use withthis rifle but Heesen did not care for the sight and did not purchase it.

• Immediately after the purchase of the rifle, Heesen left for a deer huntingtrip in an area known as Ute Park near the town of Eagle Nest in ColfaxCounty. He arrived at Ute Park that night and began hunting the nextmorning.

• When Heesen commenced hunting that morning he placed a live cartridgein the chamber and placed the gun on safety position. He traveled a gooddeal during the hours before the shooting and on one or two occasions hediscovered the gun off safety position. This was when he had come down along hill covered with rocks and boulders and he assumed that he had hit itagainst a rock or something.

• Thereafter Heesen checked the safety position on frequent occasions.• Heesen changed the position in which he carried the rifle during the course

of his walking up and down mountain slopes. Although the gun moved from‘safe’ to ‘fire’ position at least twice during the hours before the shooting,Heesen was not aware of this occurrence.

• Heesen had been sitting on a knoll for about twenty minutes checking thewind and watching for deer. While sitting on the knoll he checked orobserved the safety lever on the rifle several times and it was on safetyposition. At a time not more than ten minutes before the shooting he left

the knoll and started down a draw which ran in a southerly orsouthwesterly direction. Heesen was not sure whether he checked thesafety lever after he left the knoll and he was carrying the gun on hisshoulder by the sling as he proceeded down the draw toward the pointwhere the gun discharged.

• At about this time, Lopez, was sitting next to a tree about fifty yards awayfrom the point where Heesen's gun subsequently discharged. In thecompany of two hunting companions, Bennie Aragon and Ramon Barela,had gone from Albuquerque to Ute Park and after spending the night in thearea, commenced hunting on the morning, the first day of deer season.

After hunting all morning and again in the early afternoon, the partystopped to rest at the location where Lopez was shot.

• It was then about 3:00 P.M. and Lopez dressed in bright hunting clothes,

was sitting about twenty feet away from his two companions and scanningthe area for game. After sitting there about four or five minutes, appellantobserved an object to his right which was moving but which he could notidentify. This was shortly before the shooting.

• As Heesen, proceeded down the draw after leaving the knoll, he heard a‘rustle’ and saw a deer go between some trees. The deer, when observed,was in a direction about 80 or 90 degrees to the left of where appellant wassitting and Heesen did not observe appellant or his companions before theshooting.

• Heesen wanted to cross the log to see the deer better, and as he steppedacross the log his left foot caught on a little limb sticking out and causedhim to stumble. His left foot went down hard on the ground on one side ofthe log and his right foot slipped on the grass. This brought the gun down




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and the gun discharged, the bullet striking Lopez. Heesen testified that hehad his hand at least six inches away from the trigger when the gundischarged. Immediately after the gun discharged he observed that the gunwas on ‘fire’ position.

• Lopez was sitting on ground higher than Heesen at the time the gundischarged and subsequent investigation showed that the bullet had goneuphill, hit a dead tree and ricocheted several degrees to the left, and hadthereafter struck some seedlings before hitting appellant in the chest. Thebullet traveled approximately fifty yards altogether. Heesen went quickly tothe spot where appellant was sit ting, observed the seriousness of hiscondition, and Heesen and Lopez' companions made immediatearrangements to care forLopez. Heesen obtained medical aid.

• There was testimony at the trial that when Heesen was going to the placeof the accident with Dr. E. L. Lindsley, he told Dr. Lindsley that the gundischarged as he was moving it from ‘fire’ position to the ‘safe’ position.

Issue: Whether or not expert opinion testimony as to whether the safety deviceused on the shotgun was negligently or defectively designed is an abuse ofdiscretion? NO

Ratio:• Lopez alleged that the Higgins Model 51 rifle was in a dangerous and

defective condition due to its negligent manufacture, design, assembly ormaintenance, in that the safety mechanism thereof moved readily and in adangerous manner from ‘safe’ to ‘fire’ position. This is an allegation of anultimate issue of fact which the jury had to decide.

• Here is an issue, the proper understanding of which by a jury composed ofsix men and six ladies, requires specialized knowledge or experience andcannot be determined independently merely from deductions made andinferences drawn on the basis of ordinary knowledge. The jury wasinstructed that expert testimony is intended only to assist them in coming toa correct conclusion upon facts which are of a technical nature, but that theopinion of experts was not binding upon them and the jury must determinethe weight to be given to such testimony.

• Lopez introduced evidence tending to prove that the safety device on theHiggins Model 51 rifle is easy to knock off safety, making the ri fledangerous. Lopez' witness, Frank Doyle, over Sears', objection, expressedthe opinion that the safety device, without the telescopic sight, is not a safepiece, in that the projection is too long and it is too prone to be knockedfrom ‘safe’ to ‘fire’ position. I ra Kessler, expressed the opinion that theHiggins Model 51 was unsafe without the telescopic sight. Robert Allen,testified as to the manner in which the safety lever of the Higgins Model 51moved from ‘safe’ to ‘fire’ position without his knowledge.

• Sears, introduced testimony of witnesses who were either experts in thesmall arms field or experts in gun designing. The witness, Paul A. LaViolette, Jr., testified that he is a gun designer employed by High StandardManufacturing Company who manufacture the Higgins Model 51 for Sears.He qualified as an expert gun designer with many years' experience with

other rifle manufacturers and in factories designing and building weaponsof the small arms design.

• La Violette has two gun patents pending. He testified that the safety deviceon the Higgins Model 51 is supplied to High Standard ManufacturingCompany by Fabrique Nationale of Belgium. The evidence also shows thatsince 1951, 75,572 Higgins Model 51 rifles with the modified leaf safetydevice have been sold by High S tandard Manufacturing Company toSears. High Standard Manufacturing Company has never been sued byreason of the design of the Higgins Model 51 rifle. There is also opinionevidence that the Higgins Model 51 rifle is safe by all commercial sportinggoods standards.

• Lopez appears to concede that the number of rifles manufactured with themodified leaf safety device, and the fact that other companies manufactureguns with the same design, is relevant as tending to show that the designis proper. He also seems to concede that the reputation of FabriqueNationale of Belgium may be relevant to the issue.

• Subsequent to the testimony as to the reputation of the various firearmscompanies who use a similar safety device as the Higgins Model 51, thewitness, La Violette, Jr., testified without objection that the Higgins Model51 rifle is safe by all commercial sporting goods standards, and that thedesign of the safety device of the Higgins Model 51 was not negligent ordefective. The witness, Thomas Raymond Robinson, Jr., testified that in

his opinion the Higgins Model 51 is good and practical in the field for aprudent hunter, and is suitable for hunting. Ira L. Kessler, an expert witnesscalled by defendant, Heesen, testified that the Marlin Firearms Companyhas a fair reputation, and that the Colt Firearms Company has an excellentreputation.

• On an issue such as we have here we believe the applicable rule to be asstated in Wigmore on Evidence:

• (1) The conduct of others evidences the tendency of the thing in question;and such conduct-e. g. in using chains on a hill, felt shoes in a powder-factory, railings around a machine, or in not using them-is receivable withother evidence showing the tendency of the thing as dangerous, defective,or the reverse . But this is only evidence. The jury may find from otherevidence that the thing in fact dangerous, defective, or the reverse,and the maintenance was or was not negligence, in spite of the aboveevidence.

• The conduct of others is proper evidence for a jury to consider indetermining whether the tendency of the thing is dangerous, defective, orthe reverse.

• Circuit Judge Bratton, in a specially concurring opinion in United States v.Bowman:

• It is true that in trials by jury it is their province to determine the ultimatefacts, and that the general rule is that witnesses are permitted to testify tothe primary facts within their knowledge, but not to their opinions. And it isalso true that this has at times led to the statement that witnesses may notgive their opinions upon the ultimate facts which the jury are to decide,because that would supplant their judgment and usurp their province. But




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such a statement is not to be taken literally. It but reflects the general rule,which is subject to important qualifications, and never was intended toclose any reasonable avenue to the truth in the investigation of questionsof fact. Besides, the tendency of modern decisions is not only to give aswide a scope as is reasonably possible to the investigation of suchquestions, but also to accord to the trial judge a certain discretion indetermining what testimony has a tendency to establish the ultimate facts,and to disturb his decision admitting testimony of that character only whenit plainly appears that the testimony had no legitimate bearing upon thequestions at issue and was calculated to prejudice the minds of the jurors.

• Applying the above principles we hold that the testimony as to thereputation of Fabrique Nationale, who manufacture the safety device onthe Higgins Model 51, and the reputation of Marlin Firearms Company,Weatherby Corporation, Colt Firearms Company and JeffersonCorporation, who manufacture rifles which have the same modified leafsafety device as the Higgins Model 51, was relevant to the issue ofwhether the safety device on the Higgins Model 51 was unsafe orsafe, and that the trial court did not abuse its discretion in admittingthis testimony.

• This contention, we think, must be rejected. The testimony of thesewitnesses, all experts in their field, was upon the ultimate issue of fact ofwhether the safety device on the Higgins Model 51 was dangerous and

defective or unsafe, and was properly the subject of expert testimony.Opinion evidence on an ultimate issue of fact does not attempt or have thepower to usurp the functions of the jury, and this evidence could not usurpthe jury's function because the jury may still reject these opinions andaccept some other view. Opinion evidence offered by both parties in thiscase was not binding upon the jury and they were so instructed.

• In 20 Am.Jur., Evidence, § 775, p. § 647, the rule is stated as follows:• ‘In such cases, witnesses possessing requisite training, skill, or knowledge,

denominated ‘experts,’ may testify, not only to the facts, but to theiropinions respecting the facts, so far as necessary to enlighten the jury andto enable to it come to a right verdict. Issues of this kind are said to createa necessity for the admission in evidence of the opinions or conclusions ofwitnesses who are shown to be specially skilled or experienced in theparticular field in question.'

Lopez’ final objection to the opinion testimony is that the question asked of thewitnesses calls for an opinion as to a question of law and fact.

• Many of the cases cited by Lopez on this point are automobile accidentcases which hold that an expert or a non-expert witness cannot express anopinion that the defendant was negligent. The reasoning behind thesecases is that this is within the field of knowledge and understanding of the

jury and is not a matter requiring technical assistance of persons havingunusual knowledge of the subject by reason of skill, experience, orknowledge.

• The parties agree that the ultimate issue of liability is for the jury todetermine and that a witness cannot express an opinion on a matter of law,

as distinguished from an ultimate fact. The ultimate issue in this case waswhether the safety mechanism on the Higgins Model 51 rifle was in adangerous and defective condition due to its negligent design, in that itmoved readily and in a dangerous manner from ‘safe’ to ‘fire’ position.Thus the jury was free to adopt either view and then fix the liability.

• The word ‘negligence’ is sometimes used in a broad sense and sometimesin a narrow sense. In the broad sense it includes the elements of liability. Inthe narrow sense the element of liability is excluded. An allegation ofnegligence as applied to the conduct of a party is not a mere conclusion oflaw, unless made so by the law, but the statement of an ultimate pleadableand provable fact.

• Beal v. Southern Union Gas Co., follows the rule that an expert witnesscan express an opinion on an ultimate issue of fact, but cannot testify as tothe ultimate issue of liability.

• There is much confusion among the decisions due to the language used bythe courts in explaining why opinion testimony should be excluded. Somecourts say that the opinion would ‘usurp the functions of the jury.’ Othercourts say that the opinion should not be received because ‘that is thequestion which the jury must decide.’ If we are to add to this, the additionalconfusion which exists in the decisions as to whether negligence is aquestion of law or fact, or is a mixed question of law and fact, we wouldtend to create more confusion and add to the fine distinctions and

limitations.• Opinion evidence is admissible on the basis that it will aid the jury to

understand the problem and lead them to the truth on the ultimatefacts, and opinions may be disregarded by the jury in whole or inpart. It is left to the jury to decide the issue.

• From a careful consideration of the record, we have come to theconclusion that when we consider all of the testimony bearing upon thequestion of whether the rifle was dangerous and defective due to itsnegligent design, that when appellee used the term ‘negligent or defective,’he was using the word ‘negligent’ in a narrow sense and as to an ultimateand provable fact. This excluded the element of liability. It was for the juryto fix the ultimate liability of either party. All of the facts went to the jury andit is our view that under all of the facts and circumstances of this case, theexpert opinions expressed were not improperly admitted.

Held: The trial court did not abuse its discretion in permitting the experts to expresstheir opinion. Finding no error in the record, the judgment of the district court isaffirmed. It is so ordered.

2. State vs. Ball, 339 S.W2d 783 (1960)339 S.W.2d 783November 14, 1960.

Petitioner: William Arthur BALLRespondent: STATE of Missouri






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o In identifying Ball, in addition to the scar on his face , Krekeler wasimpressed with and remembered the brown ensemble, particularly the "tallbrown hat." These items were of course relevant and admissible in evidenceand there is no objection to them.

Petitioner’s Claims (in filing for a Motion for New Trial):• A police officer was perm itted to testify that $258.02 in currency and two

pennies were taken from his person. The introduction of these exhibits was"immaterial and irrelevant, neither tended to prove nor disprove any of the issues

involved in this case; that said money as seized at the time of the arrest was neitheridentified by Mr. Krekeler nor by any other person as the money which wasallegedly stolen from the A. L. Krekeler & Sons Jewelry Company on the 15th day ofOctober, 1958; that said evidence was considered by this jury to the prejudice ofthis defendant convincingly."

SC’s Findings: [ADMISSIBILITY]• NOTE: In court, after the clothes were identified and introduced as exhibits one and

two the prosecuting attorney inquired regarding the personal effects of thedefendant.o This was given due course despite the defense claiming that the same was

immaterial and irrelevant and tends to neither prove nor disprove any factsinvolved and ask that the jury be discharged and a mistrial be declared."

o The officer stated that, "Ball's personal effects consisted of two hundred andfifty eight dollars and two cents in cash, with the denominations of the bill(s),two one hundred dollar bills, a twenty—two twenties, a ten, a five, three onesand two pennies. He had a ladies ring and a man's wristwatch. He hada crusifixion along with a small pen knife and a black leather wallet. Maybe oneor two other personal articles."

o All of these items were then marked as exhibits , from three to nine, off ered inevidence and described by the officer, exhibit three being the bills and penniescomprising the $258.02.

o According to the officer M r. Krekeler was unable to ide ntify any of these article sor the money as having come from the jewelry store robbery and there is noobjection in the motion to any of the items other than the money and some ofthem were obviously not prejudicial, for example the keys, a small penknifeand wallet.

• The testimony as to the $258.02 was not offered in proof of the substantive fact of

the crime.o The proof of the money here was evidently on the theory that Ball did not have

or was not likely to have such a sum of money on his person prior to thecommission of the offense." As to this the facts we re that he had been out of the penitentiary about

eight months and the inference the state would draw is that he had novisible means of support and no employment and could not possibly have$258.02 except from robberies.• However, there was no such proof and Ball claimed that he had

worked intermittently for a custodian or janitor of an apartmenthouse and that he had won the $258.02 in a series of crap games ata named place.

o Not only was Krekeler unable to identify the money or any of the itemson Ball's person as having come from the jewelry store so that in fact theywere not admissible in evidence, the charge here was that Ball and hisaccomplice took jewelry of the value of $4,455.21 and $140 in cash from thecash register." There was no proof as to the denomination of the money in the cash

register, it was simply a total of $140. Here nineteen days had elapsed,there was no proof that Ball had suddenly come into possession of the$258.02.

" "The mere possession of a quantity of money is in itself noindication that the possessor was the taker of money charged astaken, because in general all money of the same denominationand material is alike, and the hypothesis that the money found isthe same as the money taken is too forced and extraordinary tobe receivable."

• In the absence of proof or of a fair inference from the record that the moneyin Ball's possession at the time of his arrest came from or had some connection withthe robbery and in the absence of a plain showing of his impecuniousness beforethe robbery and his sudden affluence, the evidence was not in fact relevant and inthe circumstances was obviously prejudicial for if it did not tend to prove theoffense for which the appellant was on trial the jury may have inferred that he wasguilty of another robbery.

• The admission of the evidence in the circumstances of this record infringed the rightto a fair trial and for that reason the judgment is reversed and the cause remanded.

C. Competence

1. Section 3, Rule 128!"#$%&' ) * !"#$%%$&$'$() +, -.$"-/0- , - ./012342 05 6170550892 :;23 0< 05 =292/63<<> <;2 055?2 631 05 3>< 2@49?121 8A <;2 96: >B <;252 =?925, C$6D

2. Exclusionary Rules under the 1987 Constitution

(a) Article III, Sections 2 and 3Section 2.

The right of the people to be secure in their persons, houses, papers,and effects against unreasonable searches and seizures of whatever nature and forany purpose shall be inviolable, and no search warrant or warrant of arrest shallissue except upon probable cause to be determined personally by the judge afterexamination under oath or affirmation of the complainant and the witnesses he mayproduce, and particularly describing the place to be searched and the persons orthings to be seized.

Section 3. (1) The privacy of communication and correspondence shall beinviolable except upon lawful order of the court, or when public safety or orderrequires otherwise, as prescribed by law.(2) Any evidence obtained in violation of this or the preceding section shall beinadmissible for any purpose in any proceeding




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(b) Article III, Section 12Section 12. (1) Any person under investigation for the commission of an offenseshall have the right to be informed of his right to remain silent and to havecompetent and independent counsel preferably of his own choice. If the personcannot afford the services of counsel, he must be provided with one. These rightscannot be waived except in writing and in the presence of counsel.(2) No torture, force, violence, threat, intimidation, or any other means which vitiatethe free will shall be used against him. Secret detention places, solitary,

incommunicado, or other similar forms of detention are prohibited.(3) Any confession or admission obtained in violation of this or Section 17 hereofshall be inadmissible in evidence against him.(4) The law shall provide for penal and civil sanctions for violations of this section aswell as compensation to and rehabilitation of victims of torture or similar practices,and their families

(c) Article III, Section 17Section 17. No person shall be compelled to be a witness against himself

i. People vs. Marti (193 SCRA 57)G.R. No. 81561 | January 18, 1991Plaintiff/Appellee: PEOPLE OF THE PHILIPPINES

Accused/Appellan t: ANDRE MARTI Ponente: BIDIN, J.

Nature of the Case: An appeal from a decision rendered by the Special CriminalCourt of Manila (RTC Branch) convicting accused (Marti) of violation of Section 21(b), Article IV in relation to Section 4, Article 11 and Section 2 (e) (i), Article 1 ofRepublic Act 6425 (Dangerous Drugs Act).

SUMMARY (note this is a Consti case discussed by Cande before): Marti and hiscommon-law wife took 4 gif t-wrapped packages to Manila Packing and ExportForwarders to send to a certain Walter Fierz in Zurich. Job Reyes, one of theowners, following standard procedure opened the boxes for final inspection beforedelivery to the BOC. Upon opening the packages, there was a peculiar odoremitted. Upon further inspection, Reyes found dried leaves and took several gramsof the contents. Reyes reported the shipment to the NBI and requested lab examsof the samples he got. He also informed the NBI that the rest of the package wasstill with him and thus the agents (3) and a photographer went with him to his office.Reyes opened the package in the presence of the NBI agents and dried marijuanaleaves were found. Marti was charged of a violation of RA 6425 or the DangerousDrugs Act, he was later on convicted by the RTC. Marti appealed, assigning threeerrors in the lower court’s decision. First, Marti invoked the exclusionary rule whichstates that evidence obtained through unreasonable or defective searches orseizure is inadmissible in court. However, SC said that the same cannot be appliedhere since the constitutional protection for illegal searches and seizures can only beinvoked against government or State actions and not actions of private individuals.In this case, it was Job Reyes who opened the package and not the NBI thus his

constitutional rights were not violated. Also, in the third assignment of error, SCstated that evidence to be believed, must not only proceed from the mouth of acredible witness, but it must be credible in itself such as the common experienceand observation of mankind can approve as probable under the circumstances. Thisis because the SC finds it hard to believe that Marti would accommodate a favor ofsending a package for someone he barely knows.

FACTS: (as summarized by the prosecution)• August 14, 1987: Between 10:00 and 11:00 a.m., the appellant (Marti) and

his common-law wife, Shirley Reyes, went to the booth of the "ManilaPacking and Export Forwarders" in the Pistang Pilipino Complex, Ermita,Manila, carrying with them four (4) gift wrapped packages.

• Anita Reyes (the proprietress and no relation to Shirley Reyes) attended tothem. Marti informed Anita Reyes that he was sending the packages to afriend in Zurich, Switzerland.

• Marti filled up the contract necessary for the transaction, writing his name,passport number, the date of shipment and the name and address of theconsignee, namely, "WALTER FIERZ, Mattacketr II, 8052 Zurich,Switzerland"

• Anita Reyes asked the appellant if she could examine and inspect thepackages. Marti refused, assuring her that the packages simply containedbooks, cigars, and gloves and were gifts to his friend in Zurich. In view of

Marti's representation, Anita Reyes no longer insisted on inspecting thepackages.• The four (4) packages were then placed inside a brown corrugated box

one by two feet in size (1' x 2'). Styro-foam was placed at the bottom andon top of the packages before the box was sealed with masking tape, thusmaking the box ready for shipment.

• Before delivery of appellant's box to the Bureau of Customs and/or Bureauof Posts, Mr . Job Reyes (proprietor) and husband of Anita (Reyes),following standard operating procedure, opened the boxes for finalinspection . When he opened appellant's box, a peculiar odor emittedtherefrom . His curiousity aroused, he squeezed one of the bundlesallegedly containing gloves and felt dried leaves inside . Opening one of thebundles, he pulled out a cellophane wrapper protruding from the openingof one of the gloves . He made an opening on one of the cellophanewrappers and took several grams of the contents thereof . (emphasissupplied by the case)

• Job Reyes prepared a letter reporting the shipment to the NBI andrequesting a laboratory examination of the samples he extracted from thecellophane wrapper. He brought the letter and a sample of appellant'sshipment to the Narcotics Section of the NBI, at about 1:30 o'clock in theafternoon of that date (Aug. 14, 1987, same day). He was interviewed bythe Chief of Narcotics Section. Job Reyes informed the NBI that the rest ofthe shipment was still in his office. Therefore, Job Reyes and three (3) NBIagents, and a photographer, went to the Reyes' office at Ermita, Manila.

• Job Reyes brought out the box in which appellant's packages were placedand, in the presence of the NBI agents, opened the top flaps, removed the




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styro-foam and took out the cellophane wrappers from inside thegloves . Dried marijuana leaves were found to have been contained insidethe cellophane wrappers. (emphasis supplied by the case)

• The package which allegedly contained books was likewise opened by JobReyes. He discovered that the package contained bricks or cake-like driedmarijuana leaves. The package which allegedly contained tabacaleracigars was also opened. It turned out that dried marijuana leaves wereneatly stocked underneath the cigars.

• The NBI agents made an inventory and took charge of the box and of thecontents thereof, after signing a "Receipt" acknowledging custody of thesaid effects.

• NBI agents tried to locate appellant but to no avail. Appellant's statedaddress in his passport being the Manila Central Post Office, the agentsrequested assistance from the latter's Chief Security.

• August 27, 1987: Marti, while claiming his mail at the Central Post Office,was invited by the NBI to shed light on the attempted shipment of theseized dried leaves. On the same day the Narcotics Section of the NBIsubmitted the dried leaves to the Forensic Chemistry Section for laboratoryexamination. It turned out that the dried leaves were marijuana floweringtops as certified by the forensic chemist. (Appellee's Brief, pp. 9-11, Rollo ,pp. 132-134).

• An Information was filed against appellant for violation of RA 6425

(DDA).After trial, RTC rendered the assailed decision.

ISSUES (which were errors assigned by appellant [Marti] in the RTC’sdecision)

1. Lower court erred in admitting in evidence the illegally searched andseized objects

2. Lower court erred in convicting Marti despite the undisputed fact that hisrights under the Constitution while under custodial proceedings were notobserved.

3. Lower court erred in not giving credence to the explanation of Martion how the 4 parcels came into his possession.

HELD: WHEREFORE, the judgment of conviction finding appellant guilty beyondreasonable doubt of the crime charged is hereby AFFIRMED. No costs.

First Error: Exclusionary Rule does not apply when search done by privatepersons without State intervention

• Marti’s Contention: Evidence subject of the imputed offense had beenobtained in violation of his constitutional rights against unreasonablesearch and seizure and privacy of communication and therefore arguesthat the same should be held inadmissible in evidence. (he argued that itviolated Sec. 2 and 3, Art. 3 of the Constitution. Sec. 2 pertains to securityagainst unreasonable searches and seizures without a warrant while Sec.3 pertains to privacy communication and correspondence without lawfulcourt order and if this is violated, any evidence obtained through this isinadmissible)

• The present constitutional provision on the guarantee againstunreasonable search and seizure had its origin in the 1935 Charter which,worded as follows: The right of the people to be secure in their persons,houses, papers and effects against unreasonable searches and seizuresshall not be violated, and no warrants shall issue but upon probable cause,to be determined by the judge after examination under oath or affirmationof the complainant and the witnesses he may produce, and particularlydescribing the place to be searched, and the persons or things to beseized .

• The wording was in turn derived almost verbatim from the Fourth Amendment to the US Constitution. As such, the Court may turn to thepronouncements of the US Federal Supreme Court and State AppellateCourts which are considered doctrinal in this jurisdiction.

• The following the exclusionary rule laid down in Mapp v . Ohio by the USFederal Supreme Court , this Court, in Stonehill v . Diokno declared asinadmissible any evidence obtained by virtue of a defective searchand seizure warrant , abandoning in the process the ruling earlier adoptedin Moncado v . People's Court wherein the admissibility of evidence wasnot affected by the illegality of its seizure.

• The 1973 Charter (Sec. 4 [2], Art. IV) constitutionalized the Stonehill rulingand is carried over up to the present.

• In a number of cases, the Court strictly adhered to the exclusionary rule

and has struck down the admissibility of evidence obtained in violation ofthe constitutional safeguard against unreasonable searches and seizures.(lots of cases cited like Bache & Co., (Phil. ), Inc., v. Ruiz, Lim v. Ponce deLeon, etc). However, in all those cases, the evidence so obtained wereprocured by the State acting through the medium of its law enforcers orother authorized government agencies.

• On the other hand, the case at bar assumes a peculiar character sincethe evidence sought to be excluded was primarily discovered andobtained by a private person, acting in a private capacity and withoutthe intervention and participation of State authorities .

• In the absence of governmental interference, the liberties guaranteedby the Constitution cannot be invoked against the State.

• Villanueva v . Querubin : This constitutional right (against unreasonable

search and seizure) refers to the immunity of one's person, whether citizenor alien, from interference by government, included in which is hisresidence, his papers, and other possessions . There the state, howeverpowerful, does not as such have the access except under thecircumstances above noted, for in the t raditional formulation, his house,however humble, is his castle. Thus is outlawed any unwarranted intrusionby government, which is called upon to refrain from any invasion of hisdwelling and to respect the privacies of his life .

• Burdeau v . McDowell: Court in construing the right against unreasonablesearches and seizures declared that the Fourth Amendment givesprotection against unlawful searches and seizures, its protection applies togovernmental action. Its origin and history clearly show that it was intendedas a restraint upon the activities of sovereign authority, and was not




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intended to be a l imitation upon other than governmental agencies; asagainst such authority it was the purpose of the Fourth Amendment tosecure the citizen in the right of unmolested occupation of his dwelling andthe possession of his property, subject to the right of seizure by processduly served.

• State v . Bryan : a parking attendant who searched the automobile toascertain the owner thereof found marijuana instead, wi thout theknowledge and participation of police authorities, was declared admissiblein prosecution for illegal possession of narcotics.

• Walker v . State: it was held that the search and seizure clauses arerestraints upon the government and its agents, not upon private individuals(citing People v. Potter; State v. Brown, Mo.; State v. Olsen.)

• Bernas v . US : The search of which appellant complains, however, wasmade by a private citizen — the owner of a motel in which appellant stayedovernight and in which he left behind a travel case containing the evidence complained of. The search was made on the motel owner's own initiative.Because of it, he became suspicious, called the local police, informed themof the bag's contents, and made it available to the authorities. The fourthamendment and the case law applying it do not require exclusion ofevidence obtained through a search by a private citizen. Rather, theamendment only proscribes governmental action.

• Applied in the ca se: Court sees no cogent reason why the same

should not be admitted against him in the prosecution of the offensecharged.• Marti would like this court to believe that NBI agents made an illegal search

and seizure of the evidence later on used in prosecuting the case whichresulted in his conviction. The postulate advanced by accused/appellantneeds to be clarified in two ways.

o First, the factual considerations of the case at bar readilyforeclose the proposition that NBI agents conducted an illegalsearch and seizure of the prohibited merchandise . Records ofthe case clearly indicate that it was Mr. Job Reyes, theproprietor of the forwarding agency, who madesearch/inspection of the packages . Said inspection wasreasonable and a standard operating procedure on the part of Mr.Reyes as a precautionary measure before delivery of packages tothe Bureau of Customs or the Bureau of Posts. After Reyesopened the box containing the illicit cargo, he took samples of thesame to the NBI and summoned the agents to his place ofbusiness. Thereafter, he opened the parcel containing the rest ofthe shipment and entrusted the care and custody thereof to theNBI agents . Clearly, the NBI agents made no search andseizure, much less an illegal one, contrary to the postulate ofaccused/appellant.

o Second, the mere presence of the NBI agents did not convert thereasonable search effected by Reyes into a warrantless searchand seizure proscribed by the Constitution. Merely to observeand look at that which is in plain sight is not a search. Having

observed that which is open, where no trespass has beencommitted in aid thereof, is not search. Where the contrabandarticles are identified without a trespass on the part of thearresting officer, there is not the search that is prohibited by theconstitution.

• Gandy v . Watkins : Where the property was taken into custody of thepolice at the specific request of the manager and where the search wasinitially made by the owner, there is no unreasonable search and seizurewithin the constitutional meaning of the term.

• The Bill of Rights embodied in the Constitution is not meant to be invokedagainst acts of private individuals finds support in the deliberations of theConstitutional Commission.

o Commissioner Bernas in his sponsorship speech in the Bill ofRights answers the query which he himself posed of theprotection of fundamental liberties in the essence of constitutionaldemocracy. Protection against whom? Protection against thestate . The Bill of Rights governs the relationship between theindividual and the state . Its concern is not the relation betweenindividuals, between a private individual and otherindividuals . What the Bill of Rights does is to declare someforbidden zones in the private sphere inaccessible to any powerholder .

•

Main Doctrine: The constitutional proscription against unlawfulsearches and seizures therefore applies as a restraint directed onlyagainst the government and its agencies tasked with the enforcementof the law. Thus, it could only be invoked against the State to whomthe restraint against arbitrary and unreasonable exercise of power isimposed.

• If the search is made upon the request of law enforcers, a warrant mustgenerally be first secured if it is to pass the test of constitutionality.However, if the search is made at the behest or initiative of the proprietorof a private establishment for its own and private purposes, as in the caseat bar, and without the intervention of police authorities, the right againstunreasonable search and seizure cannot be invoked for only the act ofprivate individual, not the law enforcers, is involved.

• In sum, the protection against unreasonable searches and seizurescannot be extended to acts committed by private individuals so as tobring it within the ambit of alleged unlawful intrusion by thegovernment.

• Marti argues that since the provisions of the 1935 Constitution has beenmodified by the present phraseology found in the 1987 Charter, expresslydeclaring as inadmissible any evidence obtained in violation of theconstitutional prohibition against illegal search and seizure, it matters notwhether the evidence was procured by police authorities or privateindividuals

o The argument is untenable. The constitution, in laying down theprinciples of the government and fundamental liberties of thepeople, does not govern relationships between individuals.




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Moreover, it must be emphasized that the modificationsintroduced in the 1987 Constitution relate to the issuance of eithera search warrant or warrant of arrest vis-a-vis the responsibility ofthe judge in the issuance thereof.

• Corolarilly, alleged violations against unreasonable search and seizuremay only be invoked against the State by an individual unjustlytraduced by the exercise of sovereign authority . To agree withappellant that an act of a private individual in violation of the Bill of Rightsshould also be construed as an act of the State would result in serious

legal complications and an absurd interpretation of the constitution.• Similarly, the admissibility of the evidence procured by an individual

effected through private seizure equally applies, in pari passu , to thealleged violation, non-governmental as it is, of appellant's constitutionalrights to privacy and communication.

SECOND ERROR: Marti did not contradict the statement of the witnesswherein the latter stated that they gave the chance to Marti to explain but didnot do so

• Marti contends that the lower court erred in convicting him despite theundisputed fact that his rights under the constitution while under custodialinvestigation were not observed.

• Contention is without merit, SC carefully examined the records of the case

and found nothing to indicate, as an “undisputed fact”, that appellant wasnot informed of his constitutional rights or that he gave statements withoutthe assistance of counsel . The law enforcers testified thataccused/appellant was informed of his constitutional rights. It ispresumed that they have regularly performed their duties and theirtestimonies should be given full faith and credence, there being noevidence to the contrary.

• What is clear from the records, on the other hand, is that appellant refusedto give any written statement while under investigation as testified by Atty.Lastimoso of the NBI (there was a transcript here, wherein Fiscal Formosoasked the witness if he investigated the accused together with the girl afterinvestigating Mr. and Mrs. Job Reyes to which the witness replied yes andthey have interviewed the accused together with the girl but he availed ofthe constitutional right not to give any written statement)

• The testimony of the witness for the prosecution was not contradicted bythe defense on cross-examination, neither was there any proof by thedefense that appellant gave 18ncounseled confession while beinginvestigated. What is more, we have examined the assailed judgment ofthe trial court and nowhere is there any reference made to the testimony ofappellant while under custodial investigation which was utilized in thefinding of conviction. Appellant’s second assignment of error is thereforemisplaced.

Third Error:• Marti would like SC to believe that he was not the owner of the packages

which contained prohibited drugs but rather a certain Michael, a German

national, whom appellant met in a pub along Ermita, Manila: that in thecourse of their 30-minute conversation, Michael requested him to ship thepackages and gave him P2,000.00 for the cost of the shipment since theGerman national was about to leave the country the next day.

• SC finds Marti’s disclaimer as incredulous, self-serving and contrary tohuman experience. It can easily be f abricated. An acquaintance with acomplete stranger struck in half an hour could not have pushed a man toentrust the shipment of four (4) parcels and shell out P2,000.00 for thepurpose and for Marti to readily accede to comply with the undertaking

without first ascertaining its contents.• As to why Marti readily agreed to do the errand, he failed to explain .

Denials, if unsubstantiated by clear and convincing evidence, arenegative self-serving evidence which deserve no weight in law andcannot be given greater evidentiary weight than the testimony ofcredible witnesses who testify on affirmative matters.

• Marti’s bare denial is even made more suspect considering that, as perrecords of the Interpol, he was previously convicted of possession ofhashish by the Kleve Court in the Federal Republic of Germany on January1, 1982 and that the consignee of the frustrated shipment, Walter Fierz,also a Swiss national, was likewise convicted for drug abuse and is justabout an hour's drive from appellant's residence in Zurich, Switzerland.

• Evidence to be believed, must not only proceed from the mouth of a

credible witness, but it must be credible in itself such as the commonexperience and observation of mankind can approve as probableunder the circumstances .

• As records further show, appellant did not even bother to ask Michael's fullname, his complete address or passport number. Furthermore, if indeed,the German national was the owner of the merchandise, Marti should haveso indicated in the contract of shipment. On the contrary, he signed thecontract as the owner and shipper thereof giving more weight to thepresumption that things which a person possesses, or exercises actsof ownership over, are owned by him . At this point, appellant istherefore estopped to claim otherwise.

Ii. Pollo vs. David, G.R. No. 181881, 18 October 2011POLLO vs. DAVIDG.R. No. 181881 | October 18, 2011Petitioner: BRICCIO "Ricky" A. POLLORespondents: CHAIRPERSON KARINA CONSTANTINO-DAVID, DIRECTOR IVRACQUEL DE GUZMAN BUENSALIDA, DIRECTOR IV LYDIA A. CASTILLO,DIRECTOR III ENGELBERT ANTHONY D. UNITE AND THE CIVIL SERVICECOMMISSION(SORRY FOR THE LONG DIGEST ! )

Summary: A search of PALD’s and petitioner’s computer files was conducted inconnection with investigation of work-related misconduct which was prompted by ananonymous letter-complaint addressed to Chairperson David regarding anomalies




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in the CSC-ROIV where the head of the Mamamayan Muna Hindi Mamaya Na division is supposedly "lawyering" for individuals with pending cases in the CSC. Itwas found that the files copied from the computer assigned to and being used bythe petitioner were documents in connection with administrative cases under CSC.Petitioner was then charged with Dishonesty, Grave Misconduct, ConductPrejudicial to the Best Interest of the Service and Violation of R.A. No. 6713 andeventually dismissed from service. Petitioner contends that the unauthorizedcopying and duplicating of his fi les/documents violated his constitutional right toprivacy and protection against self-incrimination and warrantless search and

seizure. As the search was illegal, he argues that the evidence was inadmissiblebeing “fruit of the poisonous tree”. The SC affirmed petitioner’s dismissal fromservice using American jurisprudence as benchmark. First, petitioner failed to provethat he had an actual (subjective) expectation of privacy either in his office orgovernment-issued computer which contained his personal files. The CSC had alsoimplemented a policy that puts its employees on notice that they have noexpectation of privacy in anything they create, store, send or receive on the officecomputers. Second, the search of petitioner’s computer was justified there beingreasonable ground for suspecting that the files stored therein would yieldincriminating evidence relevant to the investigation being conducted by CSC. Thissituation clearly falls under the exception to the warrantless requirement inadministrative searches defined in O’Connor case. In O’Connor , US SC recognizedthat “special needs" authorize warrantless searches involving public employees forwork-related reasons. A balancing/reasonableness test must be conducted underwhich government interests are weighed against the employee’s reasonableexpectation of privacy. Both the inception and the scope of the intrusion must bereasonable.

FACTS: • This case involves a search of office computer assigned to a government

employee who was then charged administratively and was eventuallydismissed from the service. The employee’s personal files stored in thecomputer were used by the government employer as evidence of hismisconduct.

• Petitioner is a former Supervising Personnel Specialist of the CSCRegional Office No. IV and also the Officer-in-Charge of the Public

Assistance and Liaison Division (PALD) under the "Mamamayan MunaHindi Mamaya Na" program of the CSC.

• On January 3, 2007, an anonymous letter-complaint was received by therespondent Civil Service Commission (CSC) Chairperson from a certain“Alan San Pascual” alleging that the “chief of the Mamamayan muna hindimamaya na division” of Civil Service Commission Regional Office No. IV(CSC-ROIV) has been lawyering for public officials with pending cases inthe CSC. Chairperson David immediately formed a team with backgroundin information technology and issued a memorandum directing them “toback up all the files in the computers found in the [CSC-ROIV]Mamamayan Muna (PALD) and Legal divisions.”

• Chairperson David immediately formed a team of four personnel withbackground in IT, and issued a memo directing them to conduct an

investigation and specifically "to back up all the files in the computersfound in the Mamamayan Muna (PALD) and Legal divisions."

• Several employees witnessed the backing-up of all files. Director Unitesent text messages to petitioner and the head of Legal Services Division(LSD), who were both out of the office at the time, informing them of theongoing copying of computer files in their divisions. Petitioner replied thathe was leaving the matter to Director Unite and that he will just get alawyer.

• The next day, all the computers in the PALD were sealed and secured.Several diskettes containing the back-up files sourced from the hard disk ofPALD and LSD computers were examined. It was found that most of thefiles in the 17 diskettes containing files copied from the computer assignedto and being used by the petitioner, numbering about 40 to 42 documents,were draft pleadings or letters in connection with administrative cases inthe CSC.

• On such basis, Chairperson David issued the Show-Cause Order requiringthe petitioner, who had gone on extended leave, to submit his explanationor counter-affidavit within five days from notice. Chairperson Davidobserved that most of the documents were for or on behalves ofrespondents in the cases which gives rise to inference that the author i sadvancing interests inimical to the Commission. Also the number ofpleadings demonstrates that the person pursues such conduct in

regularity.• Petitioner filed his Comment, denying that he is the person referred to inthe anonymous letter-complaint, because he is not a lawyer and neither ishe "lawyering" for people with cases in the CSC.

o He asserted that he had protested the unlawful taking of hiscomputer done while he was on leave, citing the letter datedJanuary 8, 2007 in which he informed Director Castillo that thefiles in his computer were his personal files and those of hissister, relatives, friends and some associates and that he is notauthorizing their sealing, copying, duplicating and printing asthese would violate his constitutional right to privacy andprotection against self-incrimination and warrantless search andseizure.

o He pointed out that though government property, the temporaryuse and ownership of the computer issued under a Memorandumof Receipt (MR) is ceded to the employee who may exercise allattributes of ownership, including its use for personal purposes.

o In view of the illegal search, the files/documents copied from hiscomputer without his consent is thus inadmissible as evidence,being "fruits of a poisonous tree.”

• The CSC found prima facie case against the petitioner and charged himwith Dishonesty, Grave Misconduct, Conduct Prejudicial to the BestInterest of the Service and Violation of R.A. No. 6713 (Code of Conductand Ethical Standards for Public Officials and Employees).

• Petitioner filed an Omnibus Motion (For Reconsideration, to Dismiss and/orto Defer) assailing the formal charge as without basis having proceeded




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from an illegal search. The CSC denied this omnibus motion. Petitionerfiled an Urgent Petition before the CA assailing the Show-Cause Order andResolution as having been issued with GADALEJ.

• CSC issued a Resolution finding petitioner GUILTY of ALL the CHARGESand meted the penalty of DISMISSAL FROM THE SERVICE with all itsaccessory penalties. (CSC used as benchmark American jurisprudence forits decision which the Court also cited and is indicated in Ratio)

• CA dismissed the petitioner’s petition after finding no GAD committed byrespondents CSC officials.

MAIN ISSUE: Was the search conducted on his office computer and the copying ofhis personal files without his knowledge and consent, alleged as a t ransgression onhis constitutional right to privacy, lawful – YES

RATIO:RIGHT TO PRIVACY IN RELATION TO WARRANTLESS SEARCH & SEIZURE

• Right to privacy has been accorded recognition in this jurisdiction as afacet of the right protected by the guarantee against unreasonable searchand seizure under Section 2, Article III of the 1987 Constitution 1. Theconstitutional guarantee is not a prohibition of all searches and seizuresbut only of “unreasonable” searches and seizures. (SC then used

American jurisprudence in examining the doctrine) •

Katz v. United States (1967) : act of FBI agents in electronically recording aconversation made in an enclosed public telephone booth violated right toprivacy and constituted a "search and seizure". The existence of privacyright involved a two-fold requirement: first, that a person has exhibited anactual (subjective) expectation of privacy; and second, that the expectationbe one that society is prepared to recognize as reasonable (objective).

• O’Connor v. Ortega (1987) : Court recognized that "special needs"authorize warrantless searches involving public employees for work-relatedreasons. The Court laid down a balancing test under which governmentinterests are weighed against the employee’s reasonable expectation ofprivacy. This reasonableness test implicates neither probable cause northe warrant requirement, which are related to law enforcement

o In this case, Dr. Ortega, who was employed by a state hospital,claimed a violation of his Fourth Amendment rights when hospitalofficials investigating charges against him searched his offi ce andseized personal items from his desk and filing cabinets.

o Court stated that the employee’s expectation of privacy must beassessed in the context of the employment relation. Somegovernment offices may be so open to fellow employees or thepublic that no expectation of privacy is reasonable. Given thegreat variety of work environments in the public sector, the

1 Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches andseizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issueexcept upon probable cause to be determined personally by the judge after examination under oath or affirmation of thecomplainant and the witnesses he may produce, and particularly describing the place to be searched and the persons orthings to be seized.

question of whether an employee has a reasonable expectation ofprivacy must be addressed on a case-by-case basis.

o A determination of the standard of reasonableness applicable to aparticular class of searches requires "balancing the nature andquality of the intrusion on the individual’s Fourth Amendmentinterests against the importance of the governmental interestsalleged to justify the intrusion" and the government’s need forsupervision, control, and the efficient operation of the workplace.

o A probable cause requirement for searches of the type at issue

here would impose intolerable burdens on public employers. Thedelay in correcting the employee misconduct caused by the needfor probable cause rather than reasonable suspicion will betranslated into tangible and often irreparable damage to theagency’s work, and ultimately to the public interest.

o The "special needs, beyond the normal need for law enforcement,make the probable-cause requirement impracticable," forlegitimate, work-related noninvestigatory intrusions as well asinvestigations of work-related misconduct.

o Public employer intrusions on the constitutionally protectedprivacy interests of government employees should be judged bythe standard of reasonableness. Both the inception and the scopeof the intrusion must be reasonable and involves a twofold inquiry:first, one must consider whether the action was justified at itsinception; second, one must determine whether the search asactually conducted was reasonably related in scope to thecircumstances which justified the interference in the first place.

o A search of an employee’s office by a supervisor will be "justifiedat its inception" when there are reasonable grounds forsuspecting that the search will turn up evidence that the employeeis guilty of work-related misconduct, or that the search isnecessary for a noninvestigatory work-related purpose such as toretrieve a needed file. The search will be permissible in its scopewhen the measures adopted are reasonably related to theobjectives of the search and not excessively intrusive in light ofthe nature of the misconduct.

• United States v. Mark L. Simons: Defendant Simons, an employee of adivision of the Central Intelligence Agency (CIA), was convicted ofreceiving and possessing materials containing child pornography. Theagency had instituted a policy on computer use stating that employeeswere to use the Internet for official government business only and thatusers shall understand that the agency will periodically audit, inspect,and/or monitor the user’s Internet access as deemed appropriate.

o After confirming that Simons had indeed downloaded pictures thatwere pornographic in nature, all the files on the hard drive ofSimon’s computer were copied from a remote work station. Dayslater, original hard drive on Simon’s computer was removed andgiven to the agency. Thereafter, the agency searched Simons’office in the evening when Simons was not around. The search




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team copied the contents of Simons’ computer; diskettes;videotapes; and various documents.

o US SC ruled that the searches of Simons’ computer and office didnot violate his Fourth Amendment rights. The search remainsvalid under the O’Connor exception to the warrant requirementbecause evidence of the crime was discovered in the course of anotherwise proper administrative inspection.

o Simons did not have a legitimate expectation of privacy withregard to the record or fruits of his Internet use in l ight of the FBIS

Internet policy regarding audit and inspection. This policy placedemployees on notice that they could not reasonably expect thattheir Internet activity would be private.

o The burden is on Simons to prove that he had a legitimateexpectation of privacy in his office. Here, Simons has shown thathe had an office that he did not share. There is no evidence in therecord of

o any workplace practices, procedures, or regulations that had suchan effect. Therefore, Simons possessed a l egitimate expectationof privacy in his office.

o Simons’ violation of the agency’s Internet policy happened also tobe a violation of criminal law; this does not mean that saidemployer lost the capacity and interests of an employer. Thewarrantless entry into Simons’ office was reasonable because atthe inception of the search, the employer had "reasonablegrounds for suspecting" that the hard drive would yield evidenceof misconduct, as the employer was already aware that Simonshad misused his Internet access to download over a thousandpornographic images. The retrieval of the hard drive wasreasonably related to the objective of the search, and the searchwas not excessively intrusive.

o Thus, while Simons had a reasonable expectation of privacy in hisoffice, he did not have such legitimate expectation of privacy withregard to the files in his computer.

APPLICATION OF AMERICAN JURISPRUDENCE TO THE CASE• Applying the analysis and principles announced in O’Connor and Simons

to the case at bar, we now address the following questions: (1) Didpetitioner have a reasonable expectation of privacy in his office andcomputer files?; and (2) Was the search authorized by the CSC Chair, thecopying of the contents of the hard drive on petitioner’s computerreasonable in its inception and scope?

• In this inquiry, the relevant surrounding circumstances to consider include"(1) the employee’s relationship to the item seized; (2) whether the itemwas in the immediate control of the employee when it was seized; and (3)whether the employee took actions to maintain his privacy in the item."

1. PETITIONER HAD NO REASONABLE EXPECTATION OF PRIVACY IN HISOFFICE AND COMPUTER FILES

• Petitioner failed to prove that he had an actual (subjective) expectation ofprivacy either in his office or government-issued computer which containedhis personal files. Petitioner did not allege that he had a separate enclosedoffice which he did not share with anyone, or that his office was alwayslocked and not open to other employees or visitors. Neither did he allegethat he used passwords or adopted any means to prevent other employeesfrom accessing his computer files.

• On the contrary, he submits that he normally would have visitors in hisoffice like friends, associates and even unknown people, whom he even

allowed to use his computer which to him seemed a trivial request.• In the past 22 years he had been discharging his functions at the PALD, he

is personally assisting incoming clients, receiving documents, draftingcases on appeals and hardly had anytime for himself alone, that in fact hestays in the office as a paying customer.

• Moreover, even assuming arguendo, in the absence of allegation or proofof the aforementioned factual circumstances, that petitioner had at least asubjective expectation of privacy in his computer as he claims, such isnegated by the presence of policy, Offi ce Memorandum No. 10, S. 2002"Computer Use Policy (CUP)", regulating the use of office computers, as inSimons .

• The CSC had implemented a policy that put its employees on notice thatthey have no expectation of privacy in anything they create, store, send or

receive on the office computers, and that the CSC may monitor the use ofthe computer resources using both automated or human means. Thisimplies that on-the-spot inspections may be done to ensure that thecomputer resources were used only for such legitimate business purposes.

2. THE SEARCH AUTHORTIZED BY CSC CHAIR WAS REASONABLE IN ITSINCEPTION AND SCOPE

• The search of petitioner’s computer files was conducted in connection withinvestigation of work-related misconduct prompted by an anonymousletter-complaint. The CSC Chair had already received several textmessages from unknown sources adverting to certain anomalies in theCSC and the anonymous letter provided the lead and details as itpinpointed the persons and divisions involved in the irregularities

• A search by a government employer of an employee’s office is justified atinception when there are reasonable grounds for suspecting that it will turnup evidence that the employee is guilty of work-related misconduct.

• Under the facts obtaining, the search conducted on petitioner’s computerwas justified at its inception and scope. We quote with approval the CSC’sdiscussion on the reasonableness of its actions, consistent with theguidelines established by O’Connor :

o The nature of the imputation/complaint was serious, as it wouldundeniably cast clouds of doubt upon the institutional integrity ofthe Commission as a quasi-judicial agency. The Commission hadto act fast, if only to arrest or limit any possible adverseconsequence or fall-out.

o That it was the computers that were subjected to the search was




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justified since these furnished the easiest means for an employeeto encode and store documents. Indeed, the computers would bea likely starting point in ferreting out incriminating evidence.Concomitantly, the ephemeral nature of computer files, that is,they could easily be destroyed at a click of a button, necessitateddrastic and immediate action. Pointedly, to impose the need tocomply with the probable cause requirement would invariablydefeat the purpose of the wok-related investigation.

o The Commission effected the warrantless search in an open and

transparent manner. Also, respondent himself was also dulynotified of the search and the concomitant retrieval of files.

OTHER CONTENTIONS INVOKING CONSTITUTIONAL RIGHTS• Petitioner’s claim of violation of his constitutional right to privacy must

necessarily fail. His other argument invoking the privacy of communicationand correspondence is also untenable considering the recognitionaccorded to certain legitimate intrusions into the privacy of employees inthe government workplace under the aforecited authorities.

• We likewise find no merit in his contention that O’Connor and Simons arenot relevant because the present case does not involve a criminal offenselike child pornography.

CSC WAS CORRECT IN FINDING PETITIONER GUILTY OF CHARGES ANDDISMISSING FROM SERVICE• Having determined that the personal files copied from the office computer

of petitioner are admissible in the administrative case against him, CSCwas correct in finding the petitioner guilty of the charges and dismissinghim from the service.

• The documents stored in his office computer were confirmed to be similaror exactly the same content-wise with those on the case records of somecases pending with the Commission. CSC’s factual finding regarding theauthorship of the subject pleadings and misuse of the office computer iswell-supported by the evidence on record

o Some of these documents were in the nature of pleadingsresponding to the orders, decisions or resolutions of these officesor directly in opposition to them. This indicates that the authorthereof knowingly and willingly participated in the promotion oradvancement of the interests of parties contrary or antagonistic tothe Commission.

o Inevitably, the fact that these documents were retrieved from thecomputer of Pollo raises the presumption that he was the authorthereof. This is because he had a control of the said computer.More significantly, one of the witnesses, Reyes, testified seeing awritten copy of one of the pleadings found in the case recordslying on the table of Pollo.

o The contention of Pollo, that the documents were of his friend Atty. Solosa’s, was also rebutted by witness Reyes in stating thatshe has never saw Solosa use the computer of Pollo.

HELD: WHEREFORE, the petition for review on certiorari is DENIED. The Decisiondated October 11, 2007 and Resolution dated February 29, 2008 of the Court of

Appeals in CA-G.R. SP No. 98224 are AFFIRMED.

3. Statutory Rules of Exclusion

(a) Section 201, Tax Reform Act of 2007Section 201. Effect of Failure to Stamp Taxable Document. - An instrument,document or paper which is required by law to be stamped and which has beensigned, issued, accepted or transferred without being duly stamped, shall not berecorded, nor shall it or any copy thereof or any record of transfer of the same beadmitted or used in evidence in any court until the requisite stamp or stamps areaffixed thereto and cancelled

(b) R.A. 1405, Law on Secrecy of Bank DepositsAN ACT PROHIBITING DISCLOSURE OF OR INQUIRY INTO, DEPOSITS WITHANY BANKING INSTITUTION AND PROVIDING PENALTY THEREFOR.

Section 1. It is hereby declared to be the policy of the Government to giveencouragement to the people to deposit their money in banking institutions and todiscourage private hoarding so that the same may be properly utilized by banks in

authorized loans to assist in the economic development of the country.Section 2. 1 All deposits of whatever nature with banks or banking institutions in thePhilippines including investments in bonds issued by the Government of thePhilippines, its political subdivisions and its instrumentalities, are hereby consideredas of an absolutely confidential nature and may not be examined, inquired or lookedinto by any person, government official, bureau or office, except upon writtenpermission of the depositor, or in cases of impeachment, or upon order of acompetent court in cases of bribery or dereliction of duty of public officials, or incases where the money deposited or invested is the subject matter of the litigation.

Section 3. It shall be unlawful for any offi cial or employee of a banking institution todisclose to any person other than those mentioned in Section two hereof anyinformation concerning said deposits.

Section 4. All Acts or parts of Acts, Special Charters, Executive Orders, Rules andRegulations which are inconsistent with the provisions of this Act are herebyrepealed.

Section 5. Any violation of this law will subject offender upon conviction, to animprisonment of not more than five years or a fine of not more than twenty thousandpesos or both, in the discretion of the court.

Section 6. This Act shall take effect upon its approval. Approved: September 9, 1955




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(c) R.A. 4200, the Anti-Wire Tapping ActAN ACT TO PROHIBIT AND PENALIZE WIRE TAPPING AND OTHER RELATEDVIOLATIONS OF THE PRIVACY OF COMMUNICATION, AND FOR OTHERPURPOSES.

Section 1. It shall be unlawful for any person, not being authorized by all the partiesto any private communication or spoken word, to tap any wire or cable, or by usingany other device or arrangement, to secretly overhear, intercept, or record suchcommunication or spoken word by using a device commonly known as a dictaphone

or dictagraph or dictaphone or walkie-talkie or tape recorder, or however otherwisedescribed:It shall also be unlawful for any person, be he a participant or not in the act or actspenalized in the next preceding sentence, to knowingly possess any tape record,wire record, disc record, or any other such record, or copies thereof, of anycommunication or spoken word secured either before or after the effective date ofthis Act in the manner prohibited by this law; or to replay the same for any otherperson or persons; or to communicate the contents thereof, either verbally or inwriting, or to furnish transcriptions thereof, whether complete or partial, to any otherperson:Provided , That the use of such record or any copies thereof as evidence in any civil,criminal investigation or trial of offenses mentioned in section 3 hereof, shall not becovered by this prohibition.

Section 2. Any person who willfully or knowingly does or who shall aid, permit, orcause to be done any of the acts declared to be unlawful in the preceding section orwho violates the provisions of the following section or of any order issuedthereunder, or aids, permits, or causes such violation shall, upon conviction thereof,be punished by imprisonment for not less than six months or more than six yearsand with the accessory penalty of perpetual absolute disqualification from publicoffice if the offender be a public official at the time of the commission of the offense,and, if the offender is an alien he shall be subject to deportation proceedings.

Section 3. Nothing contained in this Act, however, shall render it unlawful orpunishable for any peace officer, who is authorized by a written order of the Court,to execute any of the acts declared to be unlawful in the two preceding sections incases involving the crimes of treason, espionage, provoking war and disloyalty in

case of war, piracy, mutiny in the high seas, rebellion, conspiracy and proposal tocommit rebellion, inciting to rebellion, sedition, conspiracy to commit sedition,inciting to sedition, kidnapping as defined by the Revised Penal Code, andviolations of Commonwealth Act No. 616, punishing espionage and other offensesagainst national security:Provided , That such written order shall only be issued or granted upon writtenapplication and the examination under oath or affirmation of the applicant and thewitnesses he may produce and a showing: (1) that there are reasonable grounds tobelieve that any of the crimes enumerated hereinabove has been committed or isbeing committed or is about to be committed:Provided, however , That in cases involving the offenses of rebellion, conspiracy andproposal to commit rebellion, inciting to rebellion, sedition, conspiracy to commit

sedition, and inciting to sedition, such authority shall be granted only upon priorproof that a rebellion or acts of sedition, as the case may be, have actually been orare being committed; (2) that there are reasonable grounds to believe that evidencewill be obtained essential to the conviction of any person for, or to the solution of, orto the prevention of, any of such crimes; and (3) that there are no other meansreadily available for obtaining such evidence.The order granted or issued shall specify: (1) the identity of the person or personswhose communications, conversations, discussions, or spoken words are to beoverheard, intercepted, or recorded and, in the case of telegraphic or telephonic

communications, the telegraph line or the telephone number involved and itslocation; (2) the identity of the peace officer authorized to overhear, intercept, orrecord the communications, conversations, discussions, or spoken words; (3) theoffense or offenses committed or sought to be prevented; and (4) the period of theauthorization. The authorization shall be effective for the period specified in theorder which shall not exceed sixty (60) days from the date of issuance of the order,unless extended or renewed by the court upon being satisfied that such extensionor renewal is in the public interest.

All recordings made under court authorization shall, within forty-eight hours after theexpiration of the period fixed in the order, be deposited with the court in a sealedenvelope or sealed package, and shall be accompanied by an affidavit of the peaceofficer granted such authority stating the number of recordings made, the dates andtimes covered by each recording, the number of tapes, discs, or records included inthe deposit, and certifying that no duplicates or copies of the whole or any partthereof have been made, or if made, that all such duplicates or copies are includedin the envelope or package deposited with the court. The envelope or package sodeposited shall not be opened, or the recordings replayed, or used in evidence, ortheir contents revealed, except upon order of the court, which shall not be grantedexcept upon motion, with due notice and opportunity to be heard to the person orpersons whose conversation or communications have been recorded.The court referred to in this section shall be understood to mean the Court of FirstInstance within whose territorial jurisdiction the acts for which authority is applied forare to be executed.

Section 4. Any communication or spoken word, or the existence, contents,substance, purport, effect, or meaning of the same or any part thereof, or anyinformation therein contained obtained or secured by any person in violation of the

preceding sections of this Act shall not be admissible in evidence in any judicial,quasi-judicial, legislative or administrative hearing or investigation.

Section 5. All laws inconsistent with the provisions of this Act are hereby repealedor accordingly amended.

Section 6. This Act shall take effect upon its approval. Approved: June 19, 1965

i. Ganaan vs. IAC, 145 SCRA 112G.R. No. L-69809October 16, 1986




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Doctrine: A telephone extension is NOT covered by the term “device orarrangement” under RA 4200 or the Anti-Wiretapping Act. It is NOT among theprohibited devices in Section 1 of the Act, such that its use to overhear a privateconversation would constitute unlawful interception of communications between thetwo parties using a telephone line.

Summary: Atty. Pintor and Montebon offered to withdraw the complaint for direct assault they

filed against Laconico after demanding P8,000 from him. This demand was heardby Atty. Gaanan through a telephone extension as requested by Laconico so as topersonally hear the proposed conditions for the settlement. Atty. Pintor wassubsequently arrested in an entrapment operation upon receipt of the money. Since

Atty. Gaanan listened to the telephone conversation without Atty. Pintor’s consent,he charged Atty. Gaanan and Laconico with violation of the Anti-Wiretapping Act(RA 4200). ISSUE: WON an extension telephone is among the prohibited devices inSec. 1 of RA 4200 such that its use to overhear a private conversation wouldconstitute an unlawful interception of communication between 2 parties using atelephone line.

The SC held that an extension telephone is not among such devices orarrangements. An extension telephone cannot be placed in the same category as adictaphone, dictagraph, or other devices enumerated in Sec. 1 of the l aw as the usecannot be considered as "tapping" the wire or cable of a telephone line. Moreover,telephone party lines were intentionally deleted from the provisions of the Act.Earlier, in the discussion of Senate Bill No. 9, the question of whether or notlistening over a telephone party l ine would be punishable was included.

Petitioner: Edgardo A. GaananRespondents: Intermediate Appellate Court & People of The PhilippinesPonente: J. Gutierrez Jr.

Nature of the case: Petition for certiorari asking for an interpretation of RA 4200,otherwise known as the Anti-Wiretapping Act.

FACTS:• Atty. Tito Pintor and his client Manuel Montebon were in the former’s living

room discussing the terms for the withdrawal of the complaint for directassault which they filed with the Office of the City Fiscal of Cebu againstLeonardo Laconico. Having decided on the proposed conditions, Atty.Pintor made a telephone call to Laconico.

• That same morning, Laconico and Atty. Gaanan were in Laconico’s officewhen the former requested the latter to advise him on the settlement of thedirect assault case because his regular lawyer, Atty. Gonzaga, went on abusiness trip.

o When Atty. Pintor called up, Laconico requested Atty. Gaanan tosecretly listen to the telephone conversation through a telephoneextension so as to hear personally the proposed conditions for the

settlement.o Atty. Ganaan heard Atty. Pintor enumerate the following

conditions for the withdrawal of the complaint for direct assault:[total of P8,000 settlement]

1) P5,000 for Atty. Pintor in persuading his Montebon to withdrawthe case

2) Public apology by Atty. Laconico before the students of DonBosco Technical High School;

3) P1,000.00 to the Don Bosco Faculty club;

4) transfer of son of Atty. Laconico to another school or anothersection of Don Bosco Technical High School;5) Affidavit of desistance by Atty. Laconico on the Maltreatment case

earlier filed against Montebon at the Cebu City Fiscal's Office,whereas Montebon's affidavit of desistance on the Direct AssaultCase against Atty. Laconico to be filed later;

6) Allow Manuel Montebon to continue teaching at the Don BoscoTechnical School;

7) Not to divulge the truth about the settlement of the Direct AssaultCase to the mass media;

8) P2,000 attorney s fees for Atty. Pintor• 20 minutes later, agreed to the said conditions. Thereafter, Atty. Pintor

called again to give the instructions as to where to deliver the money.o When Atty. Pintor received the money at the Igloo Restaurant, he

was arrested by agents of the Philippine Constabulary.• Atty. Ganaan then executed on the following day an affidavit stating that he

heard complainant demand P8,000 for the withdrawal of the case for directassault. Laconico attached the said affidavit to the complaint forrobbery/extortion which he filed against Atty. Pintor.

• HOWEVER, since Atty. Ganaan listened to the telephone conversationwithout Atty Pintor’s consent, the latter charged him and Laconico withviolation of the Anti-Wiretapping Act.

Lower Court: • Found both Gaanan and Laconico guilty of violating Section 1 of RA 4200.

Sentenced to one (1) year imprisonment.IAC: affirmed.

• Reasons:o the communication between Atty. Pintor and Laconico was private

in nature and, therefore, covered by RA 4200;o Atty. Ganaan overheard such communication without the

knowledge and consent of Atty. Pintor;o and that the extension telephone which was used to overhear the

telephone conversation is covered in the term "device' asprovided in RA 4200.

• Hence this petition.

ISSUES:1. WON the telephone conversation between Atty. Pintor and Laconico was

private in nature. – YES .




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2. WON Atty. Ganaan had authority to listen or overhear said telephoneconversation. – NO .

3. WON an extension telephone is covered by the term "device orarrangement" under RA 4200. – NOT covered . [main]

4. WON RA 4200 is ambiguous and, therefore, should be construed in favorof the petitioner. – YES .

RATIO: [Guys, ung ratio ginawa ko na same with the flow nung case itself]• We are confronted in this case with the interpretation of a penal

statute and NOT a rule of evidence.• The issue is NOT the admissibility of evidence secured over an extension

line of a telephone by a third party.• The issue is whether or not the person called over the telephone and his

lawyer listening to the conversation on an extension line should both faceprison sentences simply because the extension was used to enable themto both listen to an alleged attempt at extortion.

#1 & 2 The private conversation was listened to without authority from bothparties

• The telephone conversation between Atty. Pintor and Laconico was"private" in the sense that the words uttered were made between oneperson and another as distinguished from words between a speaker and a

public.• Also, it is undisputed that only one of the parties gave Atty. Ganaan theauthority to listen to and overhear the caller's message with the use of anextension telephone line.

o Pintor, a member of the Philippine bar, would not have discussedthe alleged demand for an P8,000 consideration in order to havehis client withdraw a direct assault charge against Laconico filedwith the Cebu City Fiscal's Office i f he knew that another lawyerwas also listening.

HOWEVER, affirmance of the criminal conviction (relying only on the 2 stated factsabove) would in effect:

• mean that a caller by merely using a telephone line can force the listener tosecrecy no matter how obscene, criminal, or annoying the call may be.

• Also, an unwary citizen who happens to pick up his telephone and whooverhears the details of a crime because of the so-called “crossed lines”might hesitate to inform police authorities if he knows that he could beaccused under RA 4200 of using his own telephone to secretly overhearthe private communications of the would be criminals.

Surely the law was never intended for such mischievous results.

THUS, the main issue to be resolved is the meaning of the phrase "any other deviceor arrangement."

• Private secretaries with extension lines to their bosses' telephones aresometimes asked to use answering or recording devices to recordbusiness conversations between a boss and another businessman.

o Would transcribing a recorded message for the use of the boss bea proscribed offense?

o or for that matter, would a "party line" be a device or arrangementunder the law?

#3 Not included in the term “device or arrangement” [main] Atty. Ganaan’s argumen t: telephones or extension telephones are not included inthe enumeration of "commonly known" listening or recording devices, nor do theybelong to the same class of enumerated electronic devices contemplated by law.

Atty. Pintor’s argument : an extension telephone is embraced and covered by theterm "device" within the context of the aforementioned law because it is not a part orportion of a complete set of a telephone apparatus. It is a separate device anddistinct set of a movable apparatus consisting of a wire and a set of telephonereceiver not forming part of a main telephone set which can be detached orremoved and can be transferred away from one place to another and to be pluggedor attached to a main telephone line to get the desired communication corning fromthe other party or end.SC:

a) In 1964, when Senate Bill No. 9 (later RA 4200) was being discussed, thequestion of whether or not listening over a telephone party line would bepunishable was included. And yet when the Bill was finalized into a statute,no mention was made of telephones in the enumeration of devices"commonly known as a dictaphone or dictagraph, detectaphone or walkietalkie or tape recorder or however otherwise described."

o The omission was not a mere oversight. Telephone partylines were intentionally deleted from the provisions of theAct.

b) The law refers to a "tap" of a wire or cable or the use of a "device orarrangement" for the purpose of secretly overhearing, intercepting, orrecording the communication. There must be either a physicalinterruption through a wiretap or the deliberate installation of adevice or arrangement in order to overhear, intercept, or record thespoken words.

o An extension telephone’s use thereof cannot be considered as"tapping" the wire or cable of a telephone line. The telephoneextension in this case was not installed for that purpose. It just

happened to be there for ordinary office use.o It is a rule in statutory construction that in order to determine the

true intent of the legislature, the particular clauses and phrases ofthe statute should not be taken as detached and isolatedexpressions, but the whole and every part thereof must beconsidered in fixing the meaning of any of its parts.

" Hence, the phrase "device or arrangement" inSection 1 of RA 4200, although not exclusive to thatenumerated therein, should be construed tocomprehend instruments of the same or similarnature, that is, instruments the use of which wouldbe tantamount to tapping the main line of a




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telephone." It refers to instruments whose installation or presence

cannot be presumed by the party or parties beingoverheard because, by their very nature, they are not ofcommon usage and their purpose is precisely fortapping, intercepting or recording a telephoneconversation.

o An extension telephone is an instrument which is verycommon especially now when the extended unit does not have to

be connected by wire to the main telephone but can be movedfrom place ' to place within a radius of a kilometer or more. Aperson should safely presume that the party he is calling at theother end of the line probably has an extension telephone and heruns the risk of a third party listening as in the case of a party lineor a telephone unit which shares its line with another.

" The conduct of the party would differ in no way if insteadof repeating the message he held out his hand-set sothat another could hear out of it and that there is nodistinction between that sort of action and permitting anoutsider to use an extension telephone for the samepurpose.

c) On the construction or interpretation of a legislative measure, the primaryrule is to search for and determine the intent and spirit of the law. A perusalof the Senate Congressional Records will show that not only did ourlawmakers NOT contemplate the inclusion of an extension telephone as aprohibited device or arrangement" but of greater importance, they weremore concerned with penalizing the act of recording than the act ofmerely listening to a telephone conversation.

o Consequently, the mere act of listening in order to bepunishable must strictly be with the use of the enumerateddevices in RA 4200 or others of similar nature.

a. An extension telephone is not among such devices orarrangements.

#4 Strictly construed in favor of the accused• It is a general rule that penal statutes must be construed strictly in favor of

the accused. Thus, in case of doubt as in the case at bar, on whether ornot an extension telephone is included in the phrase "device orarrangement", the penal statute must be construed as not including anextension telephone.

DECISION : WHEREFORE, the petition is GRANTED. The decision of the thenIntermediate Appellate Court is ANNULLED and SET ASIDE. The petitioner ishereby ACQUITTED of the crime of violation of RA 4200.

ii. Salcedo-Ortanez vs. Court of Appeals, 235 SCRA 111(August 4, 1994 | J. Padilla)Petitioner: Teresita Salcedo-Ortanez

Respondents: CA, Judge Romeo F. Zamora of RTC of QC (Br. 94), Rafael Ortanez

Summary: Rafael filed an annulment case against Teresita on the grounds of lackof marriage license and psychological incapacity of Teresita. During trial, among theevidence offered by Rafael and accepted by the trial court were 3 cassette tapes oftelephone conversations between Teresita and unidentified persons.Issue: WON the said tapes are admissible in evidence ! No, because RA No. 4200(An Act to Prohibit and Penalize Wire Tapping and Other Related Violations of thePrivacy of Communication) expressly makes such tape recordings inadmissible in

evidence. Absent a clear showing that both parties to the telephone conversationsallowed the recording of the same, the inadmissibility of the subject tapes ismandatory under such RA.

Facts:• On 2 May 1990, Rafael S. Ortanez filed with the RTC of QC a complaint for

annulment of marriage with damages against Teresita Salcedo-Ortanez,on grounds of lack of marriage license and/or psychological incapacity ofTeresita. The complaint was presided over by Judge Romeo F. Zamora.

• Rafael, after presenting his evidence, orally formally offered in evidenceExhibits “A” to “M.”

• Among the exhibits offered by Rafael were 3 cassette tapes of allegedtelephone conversations between Teresita and unidentified persons.

•

Teresita submitted her Objection/Comment to such oral offer of evidence,but, on the same day, the trial court admitted all of the offered evidence. • MR was denied. Petition for certiorari was filed by Rafael in the CA. CA

said the petition was devoid of merit for 2 obvious reasons: o Tape recordings are not inadmissible per se . They and any other

variant thereof can be admitted in evidence for certain purposes,depending on how they are presented and offered and on how thetrial judge utilizes them in the interest of justice.

o A petition for certiorari is notoriously inappropriate to rectify asupposed error in admitting evidence adduced during trial. Theruling on admissibility is interlocutory; neither does it impinge on

jurisdiction. If it is erroneous, the ruling should be questioned inthe appeal from the judgment on the merits and not through thespecial civil action of certiorari. The error, assuming gratuitouslythat it exists, cannot be anymore than an error of law, properlycorrectible by appeal and not by certiorari. Otherwise, we willhave the sorry spectacle of a case being subject of acounterproductive “ping-pong” to and from the appellate court asoften as a trial court is perceived to have made an error in any ofits rulings with respect to evidentiary matters in the course of trial.

• From this adverse judgment, Rafael filed the present petition for review.

Main issue accdg to SC: WON certiorari under Rule 65 of the RoC was properlyavailed of by Rafael in the CA ! See 1 & 2 under ratio for the rule & exception. Thiswas not categorically answered by the SC.

g




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Issue on evidence: WON the tape recordings are admissible in evidence ! No,because RA 4200 expressly states so.

Held: CA decision is set aside. The subject cassette tapes are declaredinadmissible in evidence.

Ratio: 1. The extraordinary writ of certiorari is generally not available to challenge an

interlocutory order of a trial court. The proper remedy in such cases is an

ordinary appeal from an adverse judgment, incorporating in said appeal thegrounds for assailing the interlocutory order.2. However, where the assailed interlocutory order is patently erroneous and

the remedy of appeal would not afford adequate and expeditious relief, theCourt may allow certiorari as a mode of redress.

3. In the present case, the trial court admitted all of the evidence offered byRafael, including tape recordings of t elephone conversations of Teresitawith unidentified persons. These tape recordings were made and obtainedwhen Rafael allowed his friends from the military to wire tap his hometelephone.

4. Impt: RA No. 4200 entitled “An Act to Prohibit and Penalize Wire Tappingand Other Related Violations of the Privacy of Communication, and forother purposes” expressly makes such tape recordings inadmissible inevidence. 2 Clearly, the trial court and Court of Appeals failed to considerRA No. 4200 in admitting in evidence the cassette tapes in question.

Absent a clear showing that both parties to the telephone conversationsallowed the recording of the same, the inadmissibility of the subject tapesis mandatory under RA No. 4200.

5. Additionally, it should be mentioned that RA No. 4200 in Section 2 thereofimposes a penalty of imprisonment of not less than 6 months and up to 6years for violation of said Act.

6. We need not address the other arguments raised by the parties, involvingthe applicability of American jurisprudence, having arrived at theconclusion that the subject cassette tapes are inadmissible in evidenceunder Philippine law.

iii. Ramirez vs. Court of Appeals, 248 SCRA 590SOCORRO D. RAMIREZ, petitioner, vs. HONORABLE COURT OF APPEALS,and ESTER S. GARCIA, respondents.G.R. No. 93833 September 28, 1995

2 Sec. 1. It shall be unlawful for any person, not being authorized by all the parties to any private communication or spokenword, to tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept, or record suchcommunication or spoken word by using a device commonly known as a dictaphone or dictagraph or detectaphone or walkie-talkie or tape-recorder, or however otherwise described[.]Sec. 4. Any communication or spoken word, or the existence, contents, substance, purport, or meaning of the same or anypart thereof, or any information therein contained, obtained or secured by any person in violation of the preceding sections ofthis Act shall not be admissible in evidence in any judicial, quasi-judicial, legislative or administrative hearing or investigation.

Emergency: Chuchi Ramirez sued Ester Garcia because she was humiliated in aconversation between the two in ESG’s office regarding Chuchi missing work and

joining the labor union. Words uttered work “bobo ka”,”tang ina mo”, “wala kangutak”, etc. The conversation was recorded secretly through a tape recorder. ESGfiled a criminal case for illegal recording under RA 4200. Chuchi and RTC (grantedmotion to quash) believe that this law is violated only when the recording is done bya person not a party to a conversation. SC – The law makes no distinction. Thestatute's intent to penalize all persons unauthorized to make such recording is

underscored by the use of the qualifier "any". Also, Chuchis argument thatconversations are not covered is absurd since communication and conversation areused interchangeably. Also, overhearing over telephone extension is not covered byRA 4200.

Facts:1. A civil case damages was filed by petitioner Socorro D. Ramirez (Chuchi)

in the RTC QC alleging that the private respondent, Ester S. Garcia (ESG),in a confrontation in the latter's office, allegedly vexed, insulted andhumiliated her in a "hostile and furious mood".

2. In support of her claim, petitioner produced a verbatim transcript of theevent and sought P610,000.00 as damages.

3. The transcript on which the civil case was based was culled from a taperecording of the confrontation made by petitioner. The transcript reads asfollows:

a. Summary: Transcript was about ESG scolding Chuchi about notgoing to work until 10 pm due to/and joining of a labor union.

b. ESG — Ito and ( sic ) masasabi ko sa 'yo, ayaw kung ( sic ) magexplain ka, kasi hanggang 10:00 p.m., kinabukasan hindi ka napumasok. Ngayon ako ang babalik sa 'yo, nag-aaply ka sa States,nag-aaply ka sa review mo, kung kakailanganin ang certificationmo, kalimutan mo na kasi hindi ka sa akin makakahingi. (theapplication was not explained)

c. ESG — Bastos ka, nakalimutan mo na kung paano ka pumasokdito sa hotel. Magsumbong ka sa Union kung gusto mo.d. ESG — Bobo ka; putang-ina mo sasabi-sabihin mo kamag-anak

ng nanay at tatay mo ang mga magulang ko.4. As a result of Chuchi's recording of the event and alleging that the said act

of secretly taping the confrontation was illegal, ESG filed a criminal casebefore the RTC Pasay for violation of Republic Act 4200, entitled "An Act toprohibit and penalize wire tapping and other related violations of privatecommunication, and other purposes."

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5. Upon arraignment, in lieu of a plea, Chuchi filed a Motion to Quash. RTCgranted motion to quash stating that R.A. 4200 refers to a the taping of acommunication by a person other than a participant to the communication.

6. Pfr on certiorari to CA – declared RTC decision null and void. MR denied.7. Chuchi argues that RA 4200 does not apply to the taping of a private

conversation by one of the parties to the conversation. In relation to this,Chuchi avers that the substance or content of the conversation must bealleged in the Information, otherwise the facts charged would not constitute

a violation of R.A. 4200. Finally, Chuchi agues that R.A. 4200 penalizesthe taping of a "private communication," not a "private conversation".

Issue: Is RA 4200 applicable? YES First, legislative intent is determined principally from the language of a statute.

1. RA 4200 clearly and unequivocally makes it illegal for any person, notauthorized by all the parties to any private communication to secretlyrecord such communication by means of a t ape recorder. The law makesno distinction as to whether the party sought to be penalized by the statuteought to be a party other than or different from those involved in the privatecommunication. The statute's intent to penalize all persons unauthorized tomake such recording is underscored by the use of the qualifier "any".

2. A perusal of the Senate Congressional Records, moreover, supports therespondent court's conclusion that in enacting R.A. 4200 our lawmakersindeed contemplated to make illegal, unauthorized tape recording ofprivate conversations or communications taken either by the partiesthemselves or by third persons. Thus:

a. Senator Padilla: Even if the record should be used not in theprosecution of offense but as evidence to be used in Civil Casesor special proceedings? Senator Tañada: YES

b. Senator Diokno: Do you understand, Mr. Senator, that underSection 1 of the bill as now worded, if a party secretly records a

public speech , he would be penalized under Section 1? Senator

Tañada: This not contemplated. It is the communication betweenone person and another person — not between a speaker and a public .

Second, the nature of the conversations is immaterial to a violation of the statute.3. What R.A. 4200 penalizes are the acts of secretly overhearing, intercepting

or recording private communications by means of the devices enumeratedtherein.

4. The mere allegation that an individual made a secret recording of a privatecommunication by means of a tape recorder would suffice to constitute anoffense.

5. "Nowhere (in the said law) is it required that before one can be regarded asa violator, the nature of the conversation, as well as its communication to athird person should be professed." (Sol Gen comment)

Finally, petitioner's contention that the phrase "private communication" in Section 1of R.A. 4200 does not include "private conversations" narrows the ordinary meaningof the word "communication" to a point of absurdity.

6. In its ordinary signification, communication connotes the act of sharing orimparting signification, communication connotes the act of sharing or

imparting, as in a conversation .7. These definitions are broad enough to include verbal or non-verbal, written

or expressive communications of "meanings or thoughts" which are likelyto include the emotionally-charged exchange, on February 22, 1988,between petitioner and private respondent, in the privacy of the latter'soffice.

8. Even the terms "conversation" and "communication" were interchangeablyused by Senator Tañada.

Extra: In Gaanan vs . IAC , we held that the use of a telephone extension for thepurpose of overhearing a private conversation did not violate R.A. 4200 because atelephone extension devise was neither among those "device(s) orarrangement(s)", following the principle that "penal statutes must be construedstrictly in favor of the accused."

WHEREFORE, because the law, as applied to the case at bench is clear andunambiguous and leaves us with no discretion, the instant petition is herebyDENIED. The decision appealed from is AFFIRMED. Costs against petitioner.

Documents

I. Admissibility