ASSOCIATE JUSTICE DELILAH VIDALLON-MAGTOLIS, COURT OF APPEALS vs. CIELITO M. SALUD, CLERK IV, COURT OF APPEALS A.M. No. CA-05-20-P September 9, 2005 (Formerly OCA IPI No. 05-81-CA-P)

Facts:

Melchor Lagua was found guilty of homicide in Criminal Case Nos. 118032-H and 118033-H before the Regional Trial Court of Pasig City, Branch 163. On appeal, the case was assigned to the Sixth Division of the Court of Appeals, docketed as CA-G.R. CR No. 27423. Lagua, who was then detained at the Bureau of Prisons National Penitentiary in Muntinlupa City, filed a Very Urgent Petition for Bail. Finding the petition well-taken, the appellate court issued a Resolution on October 9, 2003, directing him to post a P200,000.00 bond. Lagua’s bond was approved in a Resolution dated November 6, 2003, where the appellate court also directed the issuance of an order of release in favor of Lagua. The resolution was then brought to the Office of the Division Clerk of Court, Atty. Maria Isabel M. Pattugalan-Madarang, for promulgation.

Irma Del Rosario, Utility Worker, noticed the Salud’s (clerk IV) unusual interest in the Lagua case. Salud had apparently been making inquiries whether the appellate court had already directed the issuance of an order of release in the said case and was initially told there was none yet. Due to his persistence, the records of the case were eventually found.  Atty. Madarang then directed the typing of the Order of Release Upon Bond, and to notify the mailing section that there were orders requiring personal service. At around 4:00 p.m., Salud then went to Atty. Madarang’s office and assisted in arranging and stapling the papers for release. He brought the said resolutions and other papers himself to the Mailing Section.

On November 7, 2003, the Salud went to the National Penitentiary to serve the resolution and order of release in the Lagua case. Salud left the prison compound at around 2:30 p.m.  In the meantime, Atty. Madarang received a telephone call from a certain Melissa Melchor, who introduced herself as Lagua’s relative. It was about 2:00 p.m. The caller asked her how much more they had to give to facilitate Lagua’s provisional liberty. The caller also told Atty. Madarang that they had sought the help of a certain Rhodora Valdez of the Regional Trial Court (RTC) of Pasig, where the criminal case originated, but were told that they still had a balance to be given to Justice Magtolis and Atty. Madarang through the respondent. Atty. Madarang then called the said court and asked to speak to Ms. Valdez, pretending to be Lagua’s relative. What transpired thereafter is contained in Atty. Madarang’s Affidavit dated December 8, 2003.

Justice Magtolis testified that Atty. Madarang reported having received a telephone call from the alleged relative of Lagua. She narrated that she gave the name "Arlyn" to the caller, and, thereafter, exchanged text messages with the respondent. Justice Magtolis instructed Atty. Madarang to continue communicating with the respondent and, if possible, to see it through a possible pay-off where a National Bureau of Investigation (NBI) agent would be asked to assist them. However, the entrapment did not materialize. Nevertheless, the court admitted the text messages as evidence and ruled against Salud.

Salud now claim that the admission of the text messages as evidence against him constitutes a violation of his right to privacy is unavailing. Hence, this petition.

Issue:

Whether or not text messages may be admitted as evidence.

Held:

Text messages have been classified as "ephemeral electronic communication" under Section 1(k), Rule 2 of the Rules on Electronic Evidence, and "shall be proven by the testimony of a person who was a party to the same or has personal knowledge thereof." Any question as to the admissibility of such messages is now moot and academic, as the respondent himself, as well as his counsel, already admitted that he was the sender of the first three messages on Atty. Madarang’s cell phone.

This was also the ruling of the Court in the recent case of Zaldy Nuez v. Elvira Cruz-Apao. In that case, the Court, in finding the respondent therein guilty of dishonesty and grave misconduct, considered text messages addressed to the complainant asking for a million pesos in exchange for a favorable decision in a case pending before the CA. The Court had the occasion to state:

… 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.