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Text Messages as Electronic Evidence 3 Replies Electronic evidence is a relatively new concept. But the Supreme Court had the opportunity to assess the probative value of electronic evidence even before the enactment of Republic Act No. 8792 or the ECommerce Act of 2000 (ECA) and AM No. 01-7-01-SC or the Rules on Electronic Evidence (REE). In IBM Philippines Inc. v. NLRC (1999), the petitioners submitted computer print-outs of its e-mails to one of its employees, admonishing him for his many infractions, with repeated warnings that he would be terminated if he did not improve his work habits. The Court found that the e-mails, which constituted the only evidence of the petitioners, were inadmissible in evidence because there was no assurance of their authenticity, these not having been certified or authenticated by any company official who could properly attest that these came from petitioners system, or that the data stored therein was not tampered with. But it did not lay down specific guidelines on the admissibility of electronic documents. The ECA and the REE now contain such guidelines. Sec. 5(f) of the ECA and Rule 2 of the REE define what

electronic documents are, and provide for their authentication and admissibility: ECA Chapter II [Legal Recognition of Electronic Data Messages and Electronic Documents]; REE Rule 3, Sec. 1 [Electronic Documents as Functional Equivalent of Paper-Based Documents], Sec. 2 [Admissibility], and Sec. 3 [Privileged Communication; REE Rule 4 [Best Evidence Rule]; REE Rule 5 [Authentication of Electronic Documents]; REE Rule 6 [Electronic Signatures]; REE Rule 7 [Evidentiary Weight of Electronic Documents]; REE Rule 9 [Method of Proof]. And Section 2 of the REE as amended defines the coverage of the law as being applicable to criminal and civil actions and proceedings, as well as quasijudicial and administrative cases. Prior to the amendment, the REE was not applicable to criminal actions. Nuez v. Cruz-Apao (2005), a case involving a Court of Appeals employee who sent short message service (SMS) or text messages to a litigant demanding P1,000,000.00 in exchange for a favorable decision, was another occasion to assess the probative value of

electronic evidence, this time in the form of text messages. The Court sustained the findings of the Court of Appeals investigating committee which admitted the text messages in evidence, since these are considered as ephemeral electronic communication by Rule 2, Sec. 1 (k) of the REE, i.e. telephone conversations, text messages and other electronic forms of communication the evidence of which is not recorded or retained. The Court found that the text messages corroborated the testimony of the complainant and his witness. The complainant was considered to have personal knowledge of the incriminating text messages and could testify on their contents, since Rule 11 Sec. 2 of the REE provides the ephemeral electronic communications shall be proven by the testimony of a person who was a party to the same or who has personal knowledge thereof. Nuez was quickly followed by Magtolis v. Salud [2005], involving another Court of Appeals employee, who was suspended due to his inefficiency and gross misconduct, which were proven by his text messages. As in Nuez, the respondent and his counsel also admitted his authorship over the text messages. And

the Court, citing Nuez, ruled that the use of text messages as evidence against the sender thereof do not violate his right to privacy. While Nuez and Magtolis are landmark decisions, the Supreme Court, as stated above, did not have the opportunity to test-drive, so to speak, the effectivity of the provisions of the ECA and the REE pertaining to the admissibility of electronic documents. Since in both cases, the respondents (and their counsels) admitted that they sent the text messages. Especially because both the ECA and the REE effectively amended the Best Evidence Rule: ECA Sec. 10(1): Where the law requires information to be presented or retained in its original form, that requirement is met by an electronic data message or electronic document under certain instances; ECA Sec. 7: This Act does not modify and statutory rule relating to the admissibility of electronic data messages or electronic documents, except the rules relating to authentication and best evidence; REE Rule 3, Sec. 1: Whenever a rule of evidence refers to the term writing, document, record, instrument, memorandum, or any other form of writing, such term shall be deemed to include an electronic document as defined in these Rules;

REE Rule 4, Sec. 1: An electronic document shall be regarded as the equivalent of an original document under the Best Evidence Rule if it is a printout or output readable by sight or other means, shown to reflect the data accurately. However, Rule 4 Sec. 2 of the REE enumerates the grounds when copies or duplicates shall not be admissible to the same extent as the original. And Rule 8 of the REE provides exceptions to the Hearsay Rule. The Manila Times, in its January 19, 2006 issue, reported about a Quezon City court which convicted an accused for murder because of a text message sent by the victim to his friend just before he was killed I am in trouble, if ever I dont get home, pinpoint Ernest Sanchez perhaps as part of the res gestae. According to the report, the trial court admitted the text message in evidence since it was authenticated by the victims cellular telephone provider. The decision is interesting because the report says that only text messages appearing in a postpaid cellular phone line, which the victim had, are accepted as evidence in court. It must be emphasized, however, that in Nuez, Magtolis, and the Sanchez case, the liability of the respondents and accused were proven not solely by

the text messages, but also by traditional evidence, i.e. testimonial and object. It therefore remains to be seen how the Supreme Court will appreciate the authenticity and admissibility of text messages and other forms of electronic communications such as telephone conversations, emails, multimedia message service (MMS or picture messaging), photocopies as evidence (are these originals [REE Rule 4 Sec. 1] or copies or duplicates [REE Rule 4 Sec. 2]?, and even electronic notarization (ECA Sec. 11; REE, Rule 5, Sec. 3). Furthermore, the compatibility of the REE with, among others, the Best Evidence Rule, the Hearsay Rule, the Anti-Wiretapping Act, the Statute of Frauds, and the constitutional right to privacy is also worth watching. It would also be interesting to know how the Supreme Court will rule on the admissibility of electronic documents in cases where the alleged senders deny their authorship, and also these where the only evidence against the defendant or accused is electronic in nature. (This post is a revised version of the authors article that appeared in the November 30, 2006 issue of The Lawyers Review.)

P.S. Please also see related post, Picture Messages as Electronic Evidence. Share this: Email Like this: This entry was posted in Misc on February 20, 2013. Post navigation The Sultanate of Sulu: Whats next?Practical politics 3 thoughts on Text Messages as Electronic Evidence Jem Reyes Loot February 26, 2013 at 11:03 I wonder based on what distinction did the court rule the difference between a post paid line and a prepaid line. Why is the former admissible but not the latter? Reply Pingback: Picture Messages as Electronic Evidence | ObiTir josemari22 Post author March 10, 2013 at 21:01

Maybe because the cellular companys records will conclusively determine the identity of a postpaid lines subscriber? But that should not render prepaid lines inadmissible, if the identity of the holder thereof can be ascertained I No Wiretap Evidence at Peterson Hearing Published October 29, 2003 FoxNews.com MODESTO, Calif. Prosecutors in the case against accused double murderer Scott Peterson (search) decided not to introduce wiretap evidence at the preliminary hearing, which opened Wednesday. The development sparked speculation over whether the much-publicized taped phone conversations between Peterson and his extramarital girlfriend Amber Frey would be played in court if he is forced to stand trial. Prosecutors began presenting evidence Wednesday that Peterson murdered his pregnant wife, Laci, and their unborn son 10 months ago. The first testimony revolved around the issue of mitochondrial DNA specifically whether a strand of hair found in a pair of pliers on Peterson's boat was admissible evidence. The prosecution said yes, the defense said no.

For much of an hour FBI lab supervisor Constance L. Fisher explained the method of molecular biology used to analyze the hair found in the boat Peterson said he used to go fishing on the day his wife disappeared. But Peterson's defense lawyer Mark Geragos disputed the admissibility of the mitochondrial DNA evidence in the case, and also suggested that someone may have tampered with the hair found on the boat. It was originally listed as a single hair, but prosecutors said it broke in half during their investigation. The hearing, which began about 12:30 p.m. EST, will ultimately determine whether the case will go to trial. Peterson could face the death penalty if he's found guilty. The hearing was expected to reveal the most details to date of the evidence amassed by investigators in the case that riveted the nation after 27-year-old Laci, a substitute teacher, disappeared on Christmas Eve. Raw Data: Criminal Complaint, People v. Peterson (pdf) The families of Scott and Laci Peterson were brought into court separately on Wednesday, and didn't speak to each other or make eye contact. Stanislaus County prosecutors said they would call the couple's housekeeper or one of Laci Peterson's family members as the next witness. But the DNA

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testimony was expected to take much of a day that began with 20 minutes of outlining ground rules and procedural matters. During that session, Stanislaus County Superior Court Judge Al Girolami granted Geragos a gag order against Gloria Allred, attorney for Frey who is one of the the prosecution's key witnesses. Geragos pointed out that other witnesses have been excluded from the courtroom and said he didn't want Allred to tell Frey the testimony of other defense witnesses. Scott Peterson reported his wife missing when he returned home the night of Dec. 24 from a solo fishing trip near Berkeley. His wife was eight months pregnant with a boy they planned to name Conner. The case was portrayed as an American tragedy, with Laci's smile beaming from photos and videos. The expectant parents seemed like the all-American couple until Scott Peterson's mistress surfaced and he admitted having an extramarital affair. After Peterson and other family members led hundreds of volunteers to search canals, reservoirs and wildlands, the decomposed remains of the mother-to-be and her fetus were found nearly four months later in April by dog walkers, within miles of where Peterson said he had been fishing Dec. 24.

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The arrest and subsequent hearings did little to unveil what clues led investigators to suspect her husband from the beginning. Leaks led Judge Al Girolami to impose a gag on participants in the case and seal most of the police records to protect Peterson's right to a fair trial. Voluminous court filings have provided glimpses of the evidence defense lawyers will try to prevent prosecutors from presenting: DNA analysis of Laci Peterson's hair found on pliers in Scott Peterson's boat, bloodhounds used to pick up the scent of Laci Peterson in the boat or at a storage warehouse her husband rented, and wiretaps and global positioning systems used to monitor and track Scott Peterson. The 31-year-old former fertilizer salesman has been held without bail since he was arrested in San Diego County not far from the Mexico border with his hair bleached and $10,000 cash. Defense attorney Mark Geragos has said he would not only prove Peterson innocent, but would find the "real killers." The defense team has intimated that a satanic cult may have been responsible. Police have disputed such claims. Prosecutors are expected to present enough evidence so the charges stick, but not so much that they expose witnesses to tough cross-examination.

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"You may get an unusual case where the prosecution thinks if it comes on like gangbusters the defendant will switch their plea to guilty," said Evan Lee, a professor at the University of California Hastings College of the Law. "I have a funny feeling that's not going to happen in this case." Nearly 200 applications for the fewer than two dozen sets of courtroom credentials were received from reporters, including a TV news crew from Japan. News trucks were in place outside the courthouse at the beginning of the week, and more than 100 phone lines have been installed. "We're putting on a mini Super Bowl is what we're doing," said Kelly Huston, spokesman for the Stanislaus County sheriff. "It swamps everything by far. This is the event that trumps all other events locally." Fox News' Claudia Cowan, Greta Van Susteren, Catherine Donaldson-Evans and The Associated Press contributed to this report. UK PM backs admitting wiretap evidence at trial Patrick Porter at 5:52 PM ET [JURIST] UK Prime Minister Gordon Brown [official website] Wednesday said he supports allowing UK courts to hear some evidence obtained through wiretap surveillance [statement], telling parliament

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that the long-time prohibition against wiretap evidence should be lifted in situations where "key conditions" are met. Brown said that admissible wiretap evidence would be limited to only information which cannot be acquired by any other means and which is "proportionate to what it seeks to achieve." Brown said the revised policy approach backed by the government will follow recommendations outlined in a report [PDF text] by the Chilcot committee, a crossparty government panel formed to analyze the feasibility of using wiretap evidence without hurting national security. Current UK court rules ban the admission of wiretapped phone conversations as evidence, but critics have argued that the ban should be revised in light of modern terrorist threats. In December, a confidential report on the use of wiretap evidence being prepared by officials in the Home Office suggested setting up a special group of judges [JURIST report] who would oversee wiretap-related cases against terror suspects. AP has more. BBC News has additional coverage.