EXPLAINER: Electronic copies as evidence, what the Supreme Court rules say

Lawyers for both the prosecution and the defense clashed on Tuesday over the presentation of documents detailing digital evidence related to Vice President Sara Duterte's 2024 remarks threatening to kill President Ferdinand Marcos Jr., First Lady Liza Araneta Marcos, and former House Speaker Martin Romualdez.

On the second day of Duterte's impeachment trial at the Senate, Atty. Carlo Narvasa, one of her lawyers, objected to the presentation of the affidavit authenticating the digital evidence executed by National Bureau of Investigation (NBI) agent John Mark Calilung, who was among those tasked with investigating the Vice President's remarks.

"This is not an original copy of his affidavit. This is not electronic evidence," Narvasa said. "If you look at the affidavit, even the appendages, which supposedly consist of USB and CD, there is no USB, there is no CD. Even the signatures are not wet signatures."

The defense also challenged the authenticity of a copy of the preservation request Calilung had submitted to Meta concerning the video containing Duterte's statements.

Narvasa claimed that the prosecution and the defense had agreed during pretrial that original documents would be presented during the trial proper.

"We agreed to expedite the proceedings and now what is happening is photocopies of documents that we want to peruse and see are being presented. So, we object to this, Your Honor," he said.

Private prosecutor Amando Ligutan disputed the claim, saying no such agreement had been reached.

Ligutan also argued that the 2019 Amendments to the Rules on Evidence allow duplicates, including photocopies and electronic copies, to be admitted as evidence.

"A photocopy is now considered an original," Ligutan said. "This is an electronic copy. The rules on electronic evidence say a printed version of an electronic copy is an original."

Narvasa countered that a photocopy must be "an accurate and exact reproduction of the original."

What the 2019 Amended Rules on Evidence say

Section 2, Rule 130 of the Supreme Court's 2019 Amendments to the 1989 Revised Rules on Evidence defines documentary evidence as writings, recordings, photographs, or any material containing letters, words, sounds, numbers, figures, symbols, or their equivalent, offered as proof of their contents.

As a general rule, only the original document is admissible as evidence, subject to the following exceptions:

• When the original is lost or destroyed, or cannot be produced in court, without bad faith on the part of the offeror;
• 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;
• 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;
• When the original is a public record in the custody of a public officer or is recorded in a public office; and
• When the original is not closely-related to a controlling issue.

The Rules define a duplicate as a counterpart produced by the same impression as the original, from the same matrix, or by photography, mechanical or electronic re-recording, chemical reproduction, or other equivalent techniques that accurately reproduce the original.

A duplicate is admissible to the same extent as an original unless a genuine question is raised about the authenticity of the original or admitting the duplicate instead of the original would be unjust or inequitable.

The Rules also provide that if data is stored on a computer or similar device, any printout or other output that accurately reflects the data and is readable by sight or other means qualifies as an original.

During the hearing, Presiding Officer Senator Francis "Chiz" Escudero said the impeachment court recognizes the exceptions to the Original Document Rule and will apply them accordingly.

"However, if it does not fall under the Original Document Rule exceptions, then to save the court's time, the party presenting the document should present the original during trial. Perhaps the next time you present a witness, counsel for the prosecutors and counsel for the respondent," Escudero said. — VBL, GMA News