b. Secondary Evidence

SECONDARY EVIDENCE; SUMMARIES

REQUISITES FOR INTRODUCTION OF SECONDARY EVIDENCE

Laying the basis

Secondary evidence may be admitted only by laying the basis for its production. Laying such basis requires compliance with the following:

• The offeror must prove the existence and execution of the original document;
• The offeror must show the cause of its unavailability such as the loss or destruction of the original;
• The offeror must show that the unavailability was not due to his bad faith. (Republic v. Mupas, G.R. No. 191892, 2015)
• 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. (Lee v. People, G.R. No. 159288, 2004)

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. (Lee v. People, G.R. No. 159288, 2004)

When More than One Original Exists

When more than one original copy exists, it must appear that all of them have been lost, destroyed, or cannot be produced in court before secondary evidence can be given of anyone. A photocopy may not be used without accounting for the other originals.

Order of proof

Accordingly, the correct order of proof is as follows: existence, execution, loss, and contents; although, at the sound discretion of the court, this order may be changed if necessary. (Citibank v. Teodoro, G.R. No. 150905, 2003)

Before secondary evidence can be presented, it is imperative that all the originals, duplicates or counterparts must be accounted for. The loss, destruction, or inaccessibility of all the originals must be shown in order to admit secondary evidence. (De Vera v. Aguilar, G.R. No. 83377, 1993)

When the original is outside the jurisdiction of the court, as when it is in a foreign country, secondary evidence is admissible. (Regalado, p. 725 citing PNB v. Olila, 98 Phil. 1002)

Rules on Loss

It is not necessary to prove the loss beyond all possibility of mistake. A reasonable probability of its loss is sufficient, and this may be shown by a bona fide and diligent search for it in a place where it is likely to be found. (Paylago v. Jarabe, G.R. No. L20046, 1968)

The document conveying the land was lost so the petitioner tried to present oral, secondary evidence. The Court held that the secondary evidence is admissible. The loss or destruction of the instrument, meanwhile, may be proved by any person aware of the fact, or by anyone who has made, in the judgment of the court, a sufficient examination in the place or places where the document or papers of similar character are usually kept by the person in whose custody the document was kept, and has been unable to find it; or who has made any other investigation sufficient to satisfy the Court that the document was indeed lost. (Michael & Co. v. Enriquez, G.R. No. 10824, 1915)

Proof of loss of the original document may be dispensed with where both parties admit that an instrument has been lost. The contents of an instrument may be proved against a party by his admission in writing without accounting for nonproduction of the original document (Tria v. Ortiz, G.R. No. 5244, 1909)

Order by which contents of document may be proved by secondary evidence of lost, destroyed or unavailable originals (CRT):

• A copy of the document;
• Recital of its contents in some authentic document;
• The testimony of witnesses. (Rule 130, Sec. 5)

The hierarchy of preferred secondary evidence must be strictly followed.

When Original Document is in adverse party’s custody or control

The following facts must be shown to allow introduction of secondary evidence:

• The document is in the custody or under the control of the adverse party;
• That reasonable notice was given to the adverse party who has the custody or control of the document;
• Satisfactory proof of its existence;
• Failure by the adverse party to produce it in court. (Rule 130, Sec. 6)

If the refusal or failure of the adverse party to produce the document is justified, it does not give rise to the presumption of suppression of evidence or create an unfavorable inference against him. It, however, authorizes the introduction of secondary evidence.

It is not necessary for a party seeking to introduce secondary evidence to show that the original is in the actual possession of his adversary. It is enough that the circumstances are such as to indicate that the writing is in his possession or under his control.

Neither is it required that the party entitled to the custody of the instrument should, on being notified to produce it, admit having it in his possession. (Villa Rey Transit v. Ferrer, G.R. No. L-23893, 1968)

Only a photocopy of the Employee Clearance was presented in evidence. The Court held that the photocopy is admissible as evidence since an exception to the best evidence rule is when the document sought to be presented is in the possession of the person against whom it is to be offered and such party fails to present it even after reasonable notice. (Pacasum v. People, G.R. No. 180314, 2009)

The mere fact that the original of the writing is in the custody or control of the party against whom it is offered does not warrant the admission of secondary evidence. The offeror must prove that he has done all in his power to secure the best evidence by giving notice to the said party to produce the document.

The notice may be in the form of a motion for the production of the original or made in open court in the presence of the adverse party or via a subpoena duces tecum, provided that the party in custody of the original has sufficient time to produce the same. When such party has the original of the writing and does not voluntarily offer to produce it or refuses to produce it, secondary evidence may be admitted. (Edsa Shangri-la Hotel and Resort v. BF Corporation, G.R. No. 145842, 2008)

Rules on Reasonable Notice

No particular form of notice is required, as long as it fairly apprises the other party as to what papers are desired. Even an oral demand in open court for production within a reasonable period will suffice. Notice must be given to the adverse party, or his attorney, even if the document is in the actual possession of a third party.

Where receipt of the original of a letter is acknowledged on a carbon copy thereof, there is no need for a notice to the other party to produce the original of the letter.

Notice is a condition for the subsequent introduction of secondary evidence by the proponent.

Where the nature of the action is in itself a notice, as where it is for the recovery or annulment of documents wrongfully obtained or withheld by the other party, no notice to produce said document is required.

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 (Rule 130, Sec. 9)

It is not until the party who demanded the production of the papers examines them and offers them in evidence that they assume the status of evidentiary matter.

If there is no timely objection to a document on the ground that it violates the Best Evidence Rule, the secondary evidence will be admitted.

Under the rules, it is axiomatic that before a party is allowed to adduce secondary evidence to prove the contents of the original of a deed or document, the party has to prove with the requisite quantum of evidence, the loss, destruction, or unavailability of all the copies of the original of the said deed. (Ebreo v. Ebreo, G.R. No. 160065, February 28, 2006)

Summaries

When the contents of documents, records photographs, or numerous accounts are voluminous and cannot be examined in court without great loss of time, and the fact sought to be established is only the general result of the whole, the contents of such evidence may be presented in the form of a chart, summary, or calculation

The originals shall be available for examination or copying or both by the adverse party at a reasonable time and place. The court may order that they be produced in court. (Rule 130, Sec. 7)

There is no need to present the original where the documents are too voluminous. Secondary evidence may consist of a summary of the voluminous documents or records. The voluminous records must, however, be made accessible to the adverse party so that the correctness of the summary may be tested on cross-examination.

An accountant’s written summary of some 150,000 sales invoices for goods sold by the plaintiff may be allowed under this exception despite the defendant’s objection that the sales invoices constitute the original documents and should be presented (Compania Maritima v. Allied Free Workers Union, G.R. No. L-28999, 1977).