A faxed document is not electronic evidence

The age-old problem of the theory of knowledge has been that of certitude. Are we ever certain? Obviously, it seems we are certain about a number of things—and our universe of certainties is in direct proportion to our credulity. But the question that has nagged philosophers has been “the right” to be certain. Ultimately, what bothers us, or at least the reflective among us, is how we know that we know.

Skeptics, despairing over the doubts that find their way into all crevices of human knowledge, throw their hands up in surrender and declare that we can never be certain. That of course has many theoretical consequences, but its practical consequences are the more dramatic ones. For some time, some tried rebutting the skeptics by some version of the tu quoque argument: If nothing is certain, then even the skeptical position is itself not certain. Obviously that does not take us very far, and then too the argument smacks of a discredited material fallacy.

Law uses philosophy in a number of ways; in fact, in several respects, it is a philosophical discipline—although not always willing to admit that it is one. The whole subject of statutory construction for example that freshmen in law schools study is a version, often grotesquely fossilized, of hermeneutic theory.

Some law professors foolishly treat it like it is a fixed body of doctrine on the discovery of legislative intent, conveniently ignoring nebulousness of the very notion of legislative intent, if it even makes sense at all, and ignoring the precariousness of enunciating any principles in hermeneutics! Evidence is another example of a philosophically dependent discipline. In truth, the rules of evidence are applied epistemology—or theory of knowledge. How sure am I that this computer monitor is before me now? Cutting through meandering philosophical debates from the skeptics, through Descartes, and then Hume, Kant down to the phenomenologists, Ayer puts it in true-blue analytic fashion: Provide your criteria, and when you meet these criteria, then you have the right to be sure.

Similarly, jurists are asked: When is the court entitled to be sure that the accused fatally shot the victim? The job of the rules of evidence is precisely to set those criteria. Our rules of evidence, as they now stand, are an amalgamation of human experience, philosophical insight, traditional beliefs, and probably even a pinch of superstition—such as the belief that a man who knows he is at death’s door will not lie, and so his out-of-court statement or dying declaration can be repeated in court without violating the rule excluding hearsay evidence.

To deal with the computer and the Web and kindred information technology, the Supreme Court enacted the Rules on Electronic Evidence and Congress passed a statute on e-commerce. When the rules made their debut, I distinctly recall having asked one of the Supreme Court’s technical consultants who made the presentation to the Judicial Academy whether or not fax (facisimile or tele-copied) transmissions would be considered electronic evidence. He was hesitant at first, but then answered me in the affirmative. I thought that was a reasonable answer, and going over the rules on electronic evidence in other jurisdictions, I found support for the answer given me.

In October 2007, the Supreme Court resolved a little-known case, MCC Industrial Sales Corp. v. Ssangyong Corp. that laid the matter to rest. The judgment was penned by the professorial Justice Nachura. In summary, the Court held that a tele-copied or a faxed document was not electronic evidence as contemplated by the rules, notwithstanding the fact that the fax machine indeed sends signals digitally and decodes them into readable format. The Court’s reason was straightforward: Legislative history shows that when the bill was debated in Congress, Senator Miriam Defensor-Santiago made clear that tele-copies were not to be comprehended by the concept of “electronic evidence.” The Court, however, points out that the case is different when the fax is sent through computer.

Many computers have in-built fax transmitters. A document in Word format, for example, and so saved, can be sent through the computer’s built-in fax transmitter and received by a regular fax machine at the other end of the line. I used to own one such computer and there is nothing inordinately sophisticated about it. The difference between the two modes will be known to anyone who has sent a fax message. When you tele-copy a message, you must have a paper original which you then feed into the sending fax machine. The magic takes place in the machine and is transmitted through the cables—or even wirelessly—and then received on the other end where a similar machine decodes and prints the message on paper.

Obviously then the print-out that the receiver gets is an electronic transmission of what was not originally an electronic document but a paper document. On the other hand, when tele-transmission is done through one’s computer, one’s digital document—a Word or an Excel document, for example—is electronic in its original and transmitted electronically and received by another computer or a fax machine. The most fundamental tenet of the rules on electronic evidence is simple: Do not discriminate against a document because it is electronic! It is a rule designed for a paperless milieu. The ordinary fax machine starts with a paper document fed to the machine and so does not fit into the situation for which the rules have been designed. Insofar as the “best-evidence” rule therefore is concerned, the result will be that a faxed document originating from a paper original will not be considered the “best evidence,” while the print-out of a document sent from a computer to another computer or a fax machine may qualify to be the “best evidence.”

And while we are at it, some may want to know: What of text messages? Nuez v. Cruz-Apao, a 2005 administrative case contains an obiter—a “by-the-way” pronouncement—on the admissibility of a text message as electronic evidence.

As should be obvious by now, what sets apart electronic evidence from non-electronic evidence is not principally in the “nature” of things. If one were to argue from such a premise there would be good reason to classify all fax transmissions as electronic evidence. What is clear though is that the law structures the world, it organizes the human milieu. It lays down the line between significant and insignificant, between the admissible and the inadmissible.

The law is a construct— and it is a useful construct, one without which coherent human existence would not be possible. But as a construct, it can and should be deconstructed because there can be nothing irreversible, dogmatic and irrevocable about constructs. And to deconstruct to do better—that is a rubric of justice.–Fr. Ranhilio Callangan Aquino, rannie_aquino@rannieaquino.com