EVIDENCE - RULE 132 W.L. OASAN

AUTHENTICATION AND PROOF OF DOCUMENTS (RULE 132)

Concept of Authentication

- Preliminary step in showing the admissibility of an evidence.

- Unless a document is considered self-authenticating, it will not be

admitted in evidence without prior authentication.

- This requirement discloses the existence in our legal system of a legal

presumption that is not however, directly written in statutes or

procedural rules but is necessarily implied therein.

PRESUMPTION: that objects and documents presented in evidence,

are as a rule, counterfeit. Evidence is not presumed authentic.

Burden of proof: proponent of the evidence to prove its authenticity.

Authentication under rules of ELECTRONIC EVIDENCE:

1. Evidence…Digitally signed by person purported to have

signed the same

2. …appropriate security procedures or devices were applied

to the document.

3. By other evidence showing its integrity and reliability to the

satisfaction of the judge.

Concept of a DOCUMENT

- A deed, instrument or other duly authorized paper by which something

is proved, evidenced or set forth.

- Documentary evidence: offered as proof of their contents

Object evidence: prove its existence

Classification of document:

a. Public documents

1. Written official acts, or records of the official acts of the

sovereign authority, official bodies and tribunals, and public officers,

whether of the Philippines, or a foreign country;

Also refer to those of a foreign country

2. Documents acknowledged before a notary public

3. Public records kept in the Philippines, of private documents

required by law to be entered therein.

Public document does not refer to the private

document itself but the public record of that private

document.

b. Private

- All other writings

- Last wills and testaments even if notarized

EXAMPLE

CHURCH REGISTRIES (birth, marriages, and deaths) made subsequent to the

promulgation of General Orders No. 68 (Dec. 18, 1889) and the passage of Act No. 190

(Aug. 7, 1901) are NO LONGER PUBLIC WRITINGS, NOR ARE THEY KEPT DULY

AUTHORIZED PUBLIC OFFICIALS

THERFEORE, their authenticity must be proved.

IMPORTANCE OF KNOWING WHETHER A DOCUMENT IS PUBLIC

OR PRIVATE

1. So that you don‟t have to prove its authenticity if it‟s a public

document.

2. Notarized documents being public documents do not require

authentication. They enjoy prima facie presumption of authenticity

and due execution.

EXAMPLE: A weapon, .38 revolver, found in the crime scene. To be admissible as evidence it must be authenticated. It must be shown to the satisfaction of court that the weapon is the very same weapon found in the crime scene. What to do: call someone to identify the weapon and affirm. Who to call: police investigator or someone who handled the evidence In a private document: authentication does not require a seal to be admissible

EVIDENCE - RULE 132 W.L. OASAN

3. To overcome the presumption, there must be clear and convincing

evidence.

Clear and convincing evidence as to exclude all

reasonable controversy as to falsity of the certificate.

In the absence of such proof, the document must be

upheld.

4. Notarial seal converts the document from private to public.

Should not be treated as an empty, meaningless, or

routinary act. It is invested with substantive public

interest.

A notarial document is by law entitled to full faith and

credit upon its face, and for this reason, notaries

public must observe utmost care in complying with the

elementary formalities in the performance of their

duties. Otherwise, the confidence of the public in the

integrity of this form of conveyance would be

undermined.

5. When a public officer in the performance of his duty makes an entry

in the public record, the document of such entry is deemed prima

facie evidence of the facts stated in the entry.

Evidence of official records of official acts; Attestation

a. Official publication thereof

b. Copy of the document attested by the officer having legal

custody of the record or by the attestation of his deputy

Record is not kept in the Philippines - must be

accompanied by a certificate that such officer has the

custody

Certificate may be made a secretary of the embassy

or legation…etc. or any officer in the foreign service of

the Philippines.

c. The ATTESTATION must state in substance, the copy is a

correct copy of the original, or a specific part thereof. Must be

under the official seal of the attesting officer.

d. Certificate and attestation are required because of the general

rule of the irremovability of public records.

Special power of attorney executed abroad

Must have: certificate of authentication by a secretary of the Phil.

Embassy…etc. or any officer in a foreign service of the Philippines stationed in

the foreign country.

*notary public in a foreign country cannot issue certificate.

Evidence of Public Record of a Private Document

a. Original record

b. Copy thereof

Attested by the legal custodian of the record, with an appropriate

certificate that such officer has the custody

How to prove LACK OF RECORD

-written statement signed by an officer having custody of an official record or by

his deputy

(must be accompanied by a certificate of custody)

. Which contains:

a. there has been diligent search of the record

b. despite search, no record of entry of a specified tenor is found to

exist.

LAST WILLS AND TESTAMENTS

- Must undergo an authentication process even if they are notarized.

- Substantive law provides that no will shall pass either real or personal

property unless proved and allowed in the proper court.

EVIDENCE - RULE 132 W.L. OASAN

PROOF OF PRIVATE DOCUMENT

a. Anyone who saw it executed or written

Rely on the personal knowledge of a witness

Executed or signed in his presence

He personally witnessed the execution or writing of the

document

b. Genuineness of the signature or handwriting of the maker

Does not require that the document be executed in the

presence of the witness.

Testifies or shows evidence that the signature or handwriting of

the maker is genuine

Manner of authentication applies only:

- When a private document is offered as authentic as when it is offered to

prove that the document was truly executed by the person purported to

have the same.

o “I found this document in the drawer of my table” – needs

identification not authentication.

o Witness wants to show the deed was indeed executed by his

brother – authentication is required.

HOW TO PROVE GENUINESS OF A HANDWRITING (Sec22)

1. He has seen the person write

2. He has seen writing purporting to be his upon which the witness has

acted or been charged, and has thus acquired knowledge of the

handwriting of such person

3. By a comparison made by the witness or the court, with writings

admitted or treated as genuine by the party against whom the document

is offered, or proved to be genuine to the satisfaction of the judge.

EXCEPTION TO THE RULE: ANCIENT DOCUMENTS

- when it is more than 30 years old

- is produced from a custody in which it would naturally be found if

genuine

- unblemished by any alterations or circumstances of suspicion

***evidence of authenticity need not be given. There is no need to prove its

genuineness and due execution.

There is no necessity for observance of the authentication process/

Must established first that the document is ancient and that it has

the characteristics of a document so provided under Sec21. When

all these are done, no other evidence of its authenticity need be

given.

BAR 1990

In the trial of a case on July 5, 1990, plaintiff offered in

evidence a receipt dated July 7, 1959 issued by Defendant Company

which was found in a cabinet for receipts of payment. It is without any

blemish or alteration. As no witness testified on the execution and

authenticity of the document, defendant moved for the exclusion of this

receipt notwithstanding that it is a private writing.

Should the motion be granted?

Suggested answer:

NO. There is no need for a witness to testify as to its execution and

authenticity. The testimony will only be for the purpose of identifying the

document and not to prove it authenticity. There is an exception to the

rule requiring proof of the genuineness and due execution of a private

EVIDENCE - RULE 132 W.L. OASAN

document. The exception is in the case of a private „ancient document‟

as in the instant case. When this is done, there is no need to prove its

authenticity.

Rule 132, sec 21, ROC

Note: even if the document is not ancient, it is submitted that a private

document the authenticity of which has been admitted by the parties

requires no further authentication

HOW TO EXPLAIN ALTERATIONS IN A DOCUMENT

1. Alteration was made by another without his

concurrence

2. Alteration with the consent of the parties affected

3. Alterations otherwise properly or innocently made

or did not anyway change the meaning or language

of the instrument

Failure to do any of the above will make the document inadmissible

in evidence

HOW TO PROVE DOCUMENTS IN AN UNOFFICIAL LANGUAGE

(Sec33)

GR: shall not be admitted as evidence, it must be accompanied by a

translation into English or Filipino.

*must be made before trial

IMPEACHMENT OF JUDICIAL RECORD

Judicial record – record of judicial proceedings

-contains entries or files or the official acts of a judicial

officer and judgment of court.

Grounds:

o Lack of jurisdiction in the court or judicial officer

o Collusion between the parties

o Fraud in the party offering the record, in respect to the

proceedings.

Registration of contracts: reasons

1. When it is required by law to be registered, the same must be. In a

public instruments.

2. Public documents are evidence, even against a third person, of the fact

which gave rise to their execution and of the date of its execution.

3. Certain contracts must be embodied in a public instruments in order to

be valid

Donation of an immovable

Donation of a movable with a value exceeding five

thousand pesos

A partnership where immovable property or real rights

are contributed.