[ G.R. No. 248616, January 12, 2021 ]
GALILEO A. MAGLASANG, PETITIONER, VS. PEOPLE OF THE PHILIPPINES, RESPONDENT.
CONCURRING OPINION
CAGUIOA, J.:
I concur with the ponencia that the accused Galileo A. Maglasang (Maglasang) should be acquitted on the ground of reasonable doubt.
Maglasang was charged with libel for the alleged letter that he sent to the Commander of the Philippine Coast Guard (PCG) ascribing defamatory imputations against his brother who is also a member of the PCG. The ponencia acquits him on the ground that only a photocopy of the alleged letter was presented in evidence.
I agree.
As early as 1931, in the case of Provincial Fiscal of Pampanga v. Reyes,1 the Court has already held that the Best Evidence Rule, now Original Document Rule, applies in cases of libel. In the said case, which involved libel arising from an article published in a newspaper, the Court held that "certainly the copies of the weekly where the libelous article was published, and its translation, constitute the best evidence of the libel charged. The newspaper itself is the best evidence of an article published in it."2 Applying the same in this case, the letter allegedly received by the Commander of the PCG is the best evidence and should have been the one presented as evidence in accordance with the Original Document Rule.
It is worth emphasizing that the purpose of having a rule that requires the presentation of the original is ''to ensure that the exact contents of a writing are brought before the court x x x [in order to] protect against misleading inferences resulting from the intentional or unintentional introduction of selected portions of a larger set of writings."3 Particularly, the rule recognizes that:
(a) the precision in presenting to the court the exact words of the writing is of more than average importance, particularly as respects operative or dispositive instruments, such as deeds, wills and contracts, because a slight variation in words may mean a great difference in rights; (b) there is a substantial hazard of inaccuracy in the human process of making a copy by handwriting or typewriting; and (c) as respects oral testimony purporting to give from memory the terms of a writing, there is a special risk of error, greater than in the case of attempts at describing other situations generally.4
In Seiler v. Lucasfilm,5 it was explained:
In the days before liberal rules of discovery and modern techniques of electronic copying, the rule guarded against incomplete or fraudulent proof. By requiring the possessor of the original to produce it, the rule prevented the introduction of altered copies and the withholding of originals. The purpose of the rule was thus long thought to be one of fraud prevention, but Wigmore pointed out that the rule operated even in cases where fraud was not at issue, such as where secondary evidence is not admitted even though its proponent acts in utmost good faith. Wigmore also noted that if prevention of fraud were the foundation of the rule, it should apply to objects as well as writings, which it does not. 4 Wigmore, Evidence § 1180 (Chadbourn rev. 1972).
The modern justification for the rule has expanded from prevention of fraud to a recognition that writings occupy a central position in the law. When the contents of a writing are at issue, oral testimony as to the terms of the writing is subject to a greater risk of error than oral testimony as to events or other situations. The human memory is not often capable of reciting the precise terms of a writing, and when the terms are in dispute only the writing itself, or a true copy, provides reliable evidence. To summarize then, we observe that the importance of the precise terms of writings in the world of legal relations, the fallibility of the human memory as reliable evidence of the terms, and the hazards of inaccurate or incomplete duplication are the concerns addressed by the best evidence rule. See 5 Louisell & Mueller, Federal Evidence,§ 550 at 283; McCormick on Evidence (3d ed. 1984) § 231 at 704; Cleary & Strong, The Best Evidence Rule: An Evaluation in Context, 51 Iowa L.Rev. 825, 828 (1966).6 (Emphasis supplied)
While the Original Document Rule is not absolute and in fact provides for the exceptions on when secondary evidence may be submitted, the Rules on Evidence, as amended, unmistakably maintain their preference for the presentation of the original as they only allow the introduction of secondary evidence upon a showing by the proponent that it is no longer reasonable to require the original under the circumstances. Under the Rules, secondary evidence may only be introduced when:
(a) When the original is lost or destroyed, or cannot be produced in court, without bad faith on the part of the offeror;
(b) When the original is in the custody or under the control of the party against whom the evidence is offered, and the latter fails to produce it after reasonable notice, or the original cannot be obtained by local judicial processes or procedures;
(c) When the original consists of numerous accounts or other documents which cannot be examined in court without great loss of time and the fact sought to be established from them is only the general result of the whole;
(d) When the original is a public record in the custody of a public officer or is recorded in a public office; and
(e) When the original is not [closely related] to a controlling issue.7 (Underscoring omitted)
Only the first exception is applicable in the present case. The second exception clearly does not apply as it is the prosecution's core assertion that Maglasang sent the letter to the Commander of the PCG. The third and fourth exceptions clearly do not apply in this case as the document in question here does not constitute voluminous records which cannot be examined in court without great loss of time, and neither is the document at issue here a public record. The fifth exception also does not apply as the contents of the document are in fact the central issue here as these would be determinative of Maglasang's guilt or innocence.
The Court of Appeals (CA), in ruling for the admissibility of the photocopy, simply stated that it "agrees with the trial court in holding that the prosecution was able to establish the unavailability of the original letter or that it cannot be produced in court,"8 seemingly adverting to the first exception.
The CA was incorrect and I thus agree with the ponencia's reversal of the said ruling.
For the first exception to apply, the Rules state that the offeror must establish (1) the execution or existence of the original, and (2) the cause of its unavailability without bad faith on his or her part.9 Specifically, the offeror of the secondary evidence is burdened to prove: (a) the loss or destruction of the original without bad faith on the part of the proponent/offeror which can be shown by circumstantial evidence of routine practices of destruction of documents; (b) the proponent must prove by a fair preponderance of evidence as to raise a reasonable inference of the loss or destruction of the original copy; and (c) it must be shown that a diligent and bona fide but unsuccessful search has been made for the document in the proper place or places.10
None of these things were proven by the prosecution. The CA simply justified its resort to the first exception by quoting the following testimony from the transcripts:
Q10. Mr. Witness, this appears to be a reproduction. Will you please state why this is just a reproduction and does not appear to be original? Will you please explain this?
A10. Actually, it was just sent to us coming from the office of Commodore Ferdinand M. Velasco.
Q11. He just sent you that photocopy?
A11. Actually Sir, his secretary sent me this photocopy thru an electronic mail.
Q12. That's why you printed it?
A12. Yes, sir.
Q13. So, where is now the original of that Letter, or who is in possession of the original of that Letter Mr. Witness?
A13. Actually Sir, I don't know where is the original document.
Q14. And who is the Secretary of Commodore Velasco?
A14. I cannot remember the full name of his secretary because during that time in 2014 I was at training Sir. So, I don't [have knowledge] as to who is the Secretary of Commodore Velasco.
Q15. Can you recall when did the secretary of Commodore Velasco e-mailed (sic) this photocopy?
A15. Sometime in January or February.
Q16. Of this year?
A16. Yes, Sir.
Q17. Were you able to talk personally to the secretary of Commodore Velasco?
A17. No, Sir. I just give instruction to my secretary to find this particular documents (sic) as requested by the court.
Q18. And where is the secretary now of Commodore Velasco (sic)?
A18. I have no idea Sir.
Q19. You mean to say that she is no longer connected there at the Phil. Coast Guard District Office here in Corrales extension?
A19. Yes, Sir.
Q20. Where is now Commodore Velasco (sic)?
A20. Commodore Velasco is under investigation.
Q21. In other words, he is no longer in that office?
A21. He is in floating status, Sir.
Q22. I see. And you affirm and confirm that indeed your office received a copy of this Letter?
A22. Yes, Sir.11
The foregoing testimony does not establish that the original of the letter had either been lost or destroyed. The prosecution witness who was asked to authenticate the photocopy of the letter essentially testified that he does not know where the original of the letter is, and neither does he know the whereabouts of the person who sent him the photocopy of the said letter.
The foregoing testimony is thus insufficient to justify the introduction of secondary evidence under the first exception. Verily, the offeror of secondary evidence "is not obliged to prove the loss or destruction of the original document beyond all possibility, as it is enough to prove a reasonable probability of such loss."12 Unfortunately, the above testimony does not even establish a reasonable probability of the loss or destruction of the letter. Most fatal of all, there is a complete absence of any showing of "a bona fide and diligent search, fruitlessly made in places where it is likely to be found."13
Considering that the prosecution was not able to justify its resort to the introduction of secondary evidence, the photocopy must thus be held to be inadmissible as evidence. Accordingly, Maglasang is entitled to an acquittal. As aptly stated by the Court in a 1910 case:
x x x Through the lack of the original document containing the memorandum alleged to be false, it is improper to hold, with only a copy of the said original in view, that the crime prosecuted was committed; and although, judging from the testimony of the witnesses who were examined in the two consolidated causes, there is reason to entertain much doubt as to the defendant's innocence, yet, withal, this case does not furnish decisive and conclusive proof of their respective guilt as coprincipals of the crime charged. Defendants in a criminal cause are always presumed to be innocent until their guilt be fully proven, and, in case of reasonable doubt and when their guilt is not satisfactorily shown, they are entitled to a judgment of acquittal.14 (Emphasis supplied)
Based on these premises, I vote to GRANT the Petition.
Footnotes
1 55 Phil. 905 (1931).
2 Id. at 908.
3 Heirs of Prodon v. Heirs of Alvarez, 717 Phil. 54, 66-67 (2013).
4 Id. at 66.
5 808 F.2d 1316 (1987).
6 Id. at 1319.
7 2019 AMENDMENTS TO THE 1989 REVISED RULES ON EVIDENCE (A.M. No. 19-08-15-SC), Rule 130, Sec. 3. (A.M. No. 19-08-15-SC, October 8, 2019)
8 Rollo, p. 34.
9 2019 AMENDMENTS TO THE 1989 REVISED RULES ON EVIDENCE (A.M. NO. 19-08-15-SC), Rule 130, Sec. 5. (A.M. No. 19-08-15-SC, October 8, 2019)
10 Lee v. People, 440 SCRA 662, 683. Italics supplied.
11 Rollo, pp. 35-36.
12 Republic v. Masongsong, G.R. No. 162846, September 22, 2005, 470 SCRA 574.
13 Id. at 583. Underscoring supplied.
14 US v. Gregorio, 17 Phil. 522, 526 (1910).
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