Are audio recordings admissible as evidence in court proceedings?

Evidence is said to be admissible if it is relevant to the issue and is not excluded by law or the Rules of Court (Rule 128 Sec 3). It would be relevant if it has a relation to the fact in issue as to induce belief in its existence or non existence (Rule 128 Sec 4). An audio recording therefore in order to be admissible must be relevant in proving the so-called factum probandum or the ultimate fact sought to be established and should also not be prohibited by law from being introduced as evidence.

How does a tape-recorded telephone conversation become admissible as evidence?

The Supreme Court, in the case of Salcedo-Ortanez vs. CA (G.R. No. 110662, Aug. 4, 1994), ruled that both parties to the telephone conversations must give their express consent for the recording of the same in order that the same may be admissible, as mandated by Rep. Act No. 4200 (An Act to Prohibit and Penalize Wire Tapping and Other Related Violations of the Privacy of Communication). If there is no consent therefore, such recorded audio is inadmissible.

In the United States, the requisites before tape recording can be admitted are as follows: (1) the recording device must have been capable of taking the conversation now offered in evidence; (2) the operator of the device must be competent to operate the device; (3) the recording must be authentic and correct; (4) changes, additions or deletions have not been made in the recording; (5) the recording must have been preserved in a manner that is shown to the court; (6) the speakers must be identified; and (7) the conversation elicited was made voluntarily and in good faith, without any kind of inducement (citing United States v. McKeever, 169 E Supp. 426, 430, United States v. McMillan, 508 E2d I01,104 8th Cir. 1974 at http://expertpages.com/news/sound_recordings_evidence.htm).

When these tape recordings have been transferred to CDs in audio CD or MP3 formats, nonetheless, they are still essentially “recorded” and subject to the limitations of our rules on evidence. Under Sec. 1 of Rule 11 of RULES ON ELECTRONIC EVIDENCE (A.M. NO. 01-7-01-SC) “Audio, photographic and video evidence of events, acts or transactions shall be admissible provided it shall be shown, presented or displayed to the court and shall be identified, explained or authenticated by the person who made the recording or by some other persons competent to testify on the accuracy thereof.” If the “Hello Garci” tapes will thus be subjected to this rule, the person who originally recorded the conversations therein as well as all those who transferred the same from tape to CDs (from analog to digital) should be presented and made to explain how they did it. This is also in consonance with the chain-of-custody rule in evidence which would involve presenting a log of all persons, times and locations concerned in the creation of the tapes/CDs.

Unlike in the United States where tape-recorded conversations have been frequently admitted as evidence, there is hardly a case tried here in the Philippines where such recordings are admitted. This is because those who have been wire-tapped can easily invoke the Anti-wire Tapping Law. And even if they admit that it is their voice which is on tape, they can also get away by attacking the credibility and authenticity of the tape/CD. For one, the content of a voice record could be altered by deleting words or sections and/or context through rearrangement of selected phrases. That is why opposing parties put in the testimony of so-called “expert witnesses” who will assess the authenticity of the recordings. Of course, courts are not bound by the opinion of these so-called “expert witnesses” as their statements often contradict one another depending on whose side solicited such “expert” testimony. The party who proposes the introduction of such evidence would submit that the recording is gospel-truth while the other party would simply point out the indications of tampering like gaps, transient fades, equipment sounds or extraneous voices.

Evidence is said to be the means of ascertaining the truth. In the case of the “Hello Garci” tapes/CDs, it certainly won’t be an easy battle and may keep our people’s attention to more interesting national matters like the daily 8:00 p.m. soap operas and fantasy-telenovelas. But that’s the truth – and our state of the nation is the best evidence so far.