Magazine of Normative & Developmental Law

THE INCREASING NUMBER of administrative cases involving mobile text messages should already alarm the legal profession.  In several recent cases, the Supreme Court has disciplined lawyers, judges and court employees mainly by reason of incriminating, scandalous or otherwise unethical text messages.

In 2005, the Supreme Court in the case of Zaldy Nuez v. Elvira Cruz-Apao had the opportunity to discuss the admissibility and probative value of text messages under the Rules on Electronic Evidence, thus –

The text messages were properly admitted by the Committee since the same are now covered by Section 1(k), Rule 2 of the Rules on Electronic Evidence, which provides:

“Ephemeral electronic communication” refers to telephone conversations, text messages … and other electronic forms of communication the evidence of which is not recorded or retained.”

Under Section 2, Rule 11 of the [said rules], “Ephemeral electronic communications shall be proven by the testimony of a person who was a party to the same or who has personal knowledge thereof … .” In this case, complainant who was the recipient of the said messages and therefore had personal knowledge thereof testified on their contents and import. Respondent herself admitted that the cellphone number reflected in complainant’s cellphone from which the messages originated was hers. Moreover, any doubt respondent may have had as to the admissibility of the text messages had been laid to rest when she and her counsel signed and attested to the veracity of the text messages between her and complainant. It is also well to remember that in administrative cases, technical rules of procedure and evidence are not strictly applied. We have no doubt as to the probative value of the text messages as evidence in determining the guilt or lack thereof of respondent in this case.

To be able to successfully use text messages as evidence in court proceedings, it is important that the following parameters be observed:

1)      The ephemeral electronic communication (EEC) must be shown/quoted – the text of the message itself;

2)      Testimony of the person about the contents and import of the EEC must be given; and

3)      The person who will testify must be a party to the EEC or has personal knowledge thereof – usually this is the person who received the text message in his mobile/cellphone.

What is the effect if the above parameters were not observed? As a matter of course, the EEC, being improperly introduced, should be inadmissible for being hearsay evidence.  But, if no timely objection to the same is made, the court may consider the EEC admitted in evidence.  Admission may be express or tacit.

In case of tacit admission, a mere failure to rebut or object to the presentation of the improper EEC would suffice.  On the other hand, there may be express admission when the other party himself or his counsel admits to be the sender of the EEC – in open court or through pleadings or motions.

The third parameter, that the person who will testify must be a party to the EEC or has personal knowledge thereof, may be well illustrated in the 2007 case of Heck v. Alcantar where Atty. Vitorillo sent the following message to complainant Dr. Heck:

“Sorry.  Can’t oblige.  Have given my words 2 judge.  Pls. Understand.”

The text “Have given my words 2 judge” was declared hearsay.  Why? Precisely because Dr. Heck does NOT have personal knowledge of what were the words that Atty. Vitorillo gave to the judge.  The timely objection of Atty. Vitorillo invoking the rule on hearsay evidence effectively made the quoted text messages inadmissible, the Supreme Court ruled –

Complainant based his complaint solely on the text message sent to him by Atty. Vitorillo, which mentioned a “promise” Atty. Vitorillo supposedly made to the judge.  Verily, the information was not personally known to complainant; thus, considered hearsay.

The groovy legal ramifications of today’s technology may blunder the unwary lawyer in his everyday dealings and practice.  To prevent that very blunder, it is not required for lawyers to be tech-geeks.  It is enough that lawyers should always find time keeping themselves abreast with recent trends not only in law but also in relevant technology.  Nonetheless, simple observance of Art. 19 of the Civil Code of the Philippines would suffice.

Or should you rather make “calling” rather than “texting” a more professional habit?

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