FRANCIA

SECTION 5. When original document is unavailable.  When the original document has been lost or destroyed, or cannot be produced in court, the offeror, upon proof of its execution or existence and the cause of its unavailability without bad faith on his part, may prove its contents by a copy, or by a recital of its contents in some authentic document, or by the testimony of witnesses in the order stated.

The requisites for this Section to apply are, as appearing in the leading case of Tan vs. CA ( infra ):

(a) it must be shown that an original was indeed duly executed;

(b) that such original has been lost, destroyed or unaccounted for, without bad faith on the part of the offeror; and,

(c) if there are several copies, all must be accounted for Q: What are the kinds of secondary documents?

(a) by copy of the original (photocopy)

(b) by a recital of its contents in some other authentic documents;

(c) by testimony of witnesses.

When proving a lost document by secondary evidence, the abovementioned ways must be followed in that order. Meaning -- a lost document must be proved first by a copy of such document, or if no copy exists, then by a recital of it in some other document, or by testimony of witnesses.

Q: What is meant by a recital of its contents in some other authentic documents?

A: This means that the lost document has been referred to in another document, or is copied verbatim in another instrument. EXAMPLE: A and B entered in to a contract of sale, and executed the corresponding document. A was in the habit of writing the occurrences of the day in his diary. So, he wrote the contents of the contract he entered into with B in his diary. Unfortunately, the original Contract of Sale is lost, A can proved the contents of such contract through his diary.

TAN vs. CA 137 SCRA 278

Facts: Eden Tan arrived from Hongkong, at the Manila International Airport, appearing to be restless and as if she was looking for somebody. When she was assigned to a particular customs examiner, she refused to be examined, and she moved around the examination room of the arrival area of the airport. The chief of the customs agents, after observing her behavior, assigned her to Customs Examiner Macud. While her baggage was being examined, she appeared uneasy and restless. The airport Customs Collector approached her and advised the examiner to make a thorough examination of her baggage. Thereupon, fancy jewelries and stones, and a large amount of cash were found. The baggage declaration shown to Macud merely mentions “personal effects”.

Seizure proceedings were instituted in the Bureau of Customs against Tan for violation of Sec. 3602 of the Tariff and Customs Code. A criminal proceeding was also instituted in the Circuit Criminal Court.

In the Circuit Court, appellant contended that it is an error for the prosecution to present secondary evidence to prove the existence of the smuggled goods without presenting the baggage declaration, which was allegedly lost. Secondary evidence presented were the testimonies of witnesses Manansala, Diaz and Malud, Customs Policeman and Examiners.

The Circuit Court found Tan guilty. Tan appealed to the CA, which affirmed the lower court’s decision. This is a petition for certiorari from such decision of the CA.

Issue: whether or not secondary evidence is admissible absent the proof of the loss of the baggage which is the best evidence?

Holding: It is conceded that petitioner’s baggage declaration is the best evidence of the contents thereof. However, the general rule provides that reasonable search shall be made for it in the place where it was last found, being the best evidence of the prosecution. It is safe to assume that the Fiscal undertook the necessary search, but that the declaration could not be found.

This justifies then the application of the exception to the best evidence rule which admits secondary evidence in cases

when the original document is lost, destroyed or cannot be produced in court (Sec. 2 of Rule 130) in relation to Sec. 4 which allows proof by a copy, recital of its contents, or testimony of witnesses -- in this case, the officers who searched the baggage.

Reasonable search shall be made for the lost document in the place where it was last known to have been, and if such search does not discover it, then inquiries must be made of persons most likely to have its custody or who have reasons to know of its whereabouts x x x

There is no inflexible definition under which you can give a definite pattern. The sole object of such proof is to raise a reasonable presumption merely that the instrument is lost. And this is a preliminary inquiry addressed to the discretion of the judge. One must satisfy the court that he really looked for the instrument by giving details of his search. He must prove that he had exhausted all means in locating the missing document.

The search must NOT HAVE BEEN MERELY PERFUNCTORY.

SECTION 6. When original document is in adverse party’s custody or control.  If the document is in the custody or under the control of the adverse party, he must have reasonable notice to produce it. If after such notice and after satisfactory proof of its existence, he fails to produce the document, secondary evidence may be presented as in the case of its loss.

This refers to the second exception to the BER. The document is not lost or destroyed, but is in the possession of the adverse party. Obviously, here, there is only one copy of the document. For one to be able to present secondary evidence similar to the case of loss or destruction, the important requirement is for him to give the ADVERSE PARTY REASONABLE NOTICE to produce the document in court. Then, if, during the trial, he is able to prove in court that he gave the adverse party notice, but the latter did not bring it, he can now ask the court to allow him to present the secondary evidence.

Q: How can one make the adverse party bring the document to court?

A: By subpoena duces tecum. He can subpoena the adverse party, although that is not necessary. What the rule only says is that one has to give the adverse party reasonable notice and time to produce the document.

EXAMPLE: Counsel for Plaintiff: “Mr. Defendant, pursuant to Sec. 6 of Rule 130 of the Rules on Evidence, I am requesting you to produce in court on this day, during the trial, the original of this document. Failure on your part to produce the original will entitle me to produce secondary evidence.”

During the trial, counsel for plaintiff presents a copy of the notice to the court. If the defendant did not bring the document asked for, then he (counsel for plaintiff) may proceed to present secondary evidence to the court after asking for the court’s permission to do so.

Therefore, to summarize the requisites for this Section:

(1) proof of the existence or execution of the document;

(2) the giving of reasonable notice to the defendant to produce the original document; and,

(3) if there are other copies of the original, all must be accounted for.

Q: Is there an instance or instances where a party presented secondary evidence on the contents of an original document which was in the possession of the adverse party, and yet this was allowed despite the fact that reasonable notice was not given to the adverse party? Meaning, is there an exception to the rule that one is required to give reasonable notice in such cases?

A: The exception was laid down by the Supreme Court in the 1956 case of Ready Mix Concrete Co. vs. Villacorta, which was asked in the 1974 Bar Examinations.

An illustration of the situation: This is very common especially in the business community. Some people in the hardware business have frequent customers who, due to the volume and frequency of their purchases, buy the goods on credit. When the storeowner wants to collect, he sends the Statement of Accounts to the customer. He also attaches to this Statement all the invoices that have been previously signed -- so that the customer can verify that his signatures are really on the invoices.

(Usually, the storeowner sends to the customer the original copy of the invoices because signatures would usually not be clear enough if the carbon copies are sent instead.) Practically, thus, the storeowner has surrendered all of the original invoices to the customer. The customer acknowledges receipt of all these invoices.

Now comes the customer who refuses to pay for all his alleged purchases. Naturally, the storeowner sues the customer. So, the storeowner has to present evidence in court. But the original invoices are in the possession of the adverse party. If the carbon copies of the invoices are offered as evidence, the adverse party will object on the ground that the BER is violated.

According to the Supreme Court: when the adverse party has acknowledged receipt of the original  in this example, by affixing his signature to the statement of accounts from plaintiff, there is no need for the court to require the plaintiff to produce the original document in court.

SECTION 7. Evidence admissible when original document is a public record.  When the original of a document is in the custody of a

public officer or is recorded in a public office, its contents may be proved by a certified copy issued by the public officer in custody thereof.

This is the fourth exception to the BER. The original is a public record, and you wish to prove the contents of such original. But the problem is that you cannot get it. The government will not surrender to you the original which is part of its public records. The most that the custodian can do for you is to give you a CERTIFIED TRUE COPY, an accurate copy of the original which is signed by, for example, the Civil Registrar or the Registrar of Deeds.

Q: Can you present in court this certified true copy? And is it admissible and not in violation of the BER because the original is not presented?

A: A certified true copy is admissible. It is not violative of the BER because it is considered as an exception. A certified true copy issued by the public officer who is the custodian, has the force and legal effect as the original itself.

SECTION 8. Party who calls for document not bound to offer it.  A party who calls for the production of a document and inspects the same is not obliged to offer it as evidence.

For example, X will have a document brought to court either by way of Notice to Produce to the adverse party or by subpoena duces tecum.

When X looks over the document, he finds that nothing favorable to or supportive of his case. X decides not to offer it as evidence. even if it was X who asked that the document be produced in court, when he inspects it and finds nothing relevant in it with respect to his case, he is under no obligation to offer the same as evidence in court. This is not tantamount to depriving the court of its opportunity to see the truth. No party to a case is expected to supply its opponent with the very rope to hang the former’s neck. Anyway, the other party is also prevented by law from using the said evidence in its favor.

The principle here is similar to that in depositions. A person who takes the deposition of somebody does not necessarily make him his witness. Unless the party offers the deponent’s deposition in court as a testimony in its favor.

Section 8 is limited to production and inspection.