How to Admit the Inadmissible Tapes

Atty. Marichu Lambino, part-time Erap private prosecutor and my wife’s friend sends this  SMS:

The tapes themselves are inadmissible but what about the testimony of the person who made the tape?

She’s obviously trying to see if there are ways of getting the tape or its contents admitted in a court of law or perhaps, an impeachment proceeding.   After all, it’s an uphill battle.  Both the Constitution and Anti Wiretapping Law  are clear — the illegally taped conversations are inadmissible for any purpose in any proceeding.  That’s broad enough to cover all government processes.  But thankfully not the court of public opinion.

Her question got me thinking as to how one could do what the law seems to prohibit.  I think I’ve found a way.
 

The tapes themselves are considered audio evidence under the Rules on Electronic Evidence.  To have them admitted, all you need is for a competent person to identify, explain or authenticate the tape (see Sec. 1, Rule 11, Rules on Elec. Evid.).  So, Marichu’s on the right track but the Anti Wiretapping Law is all encompassing that even a person’s testimony on an illegally taped conversation is itself a criminal offense and therefore, inadmissible.  So much for that.

Then, I got to thinking that even if the tapes were inadmissible, a party to the phone conversation or someone who was a witness to the same can testify and it would be admissible.  In other words, if say, Commr. Garcillano comes out, admits that he’s Gary, attests that the tapes are genuine and testifies in court (supposedly under immunity) about the substance of his various conversations, his testimony is admissible and can be used against persons who may be charged in relation to the tape.  Note that the Comelec Commissioner would not be using the inadmissible tape as evidence. The evidence presented would be his testimony covering his own recollection of conversations with these people.  Under the Rules on Electronic Evidence, a party to a phone conversation or one who has personal knowledge thereof can give admissible testimony to prove the substance of the communication (see Sec. 2, Rule 11, Rules on Elec. Evid.). 

There you go, Marichu.  Thanks for making me think about this one. 

UPDATE:  Apparently, Marichu and some of her colleagues were studying the possibility of getting the tapes admitted in case of an impeachment proceeding.  They’re looking at interesting angles such as invoking the power of Congress to promulgate its own admissibility rules that trump the Anti Wiretapping Law and the idea that Sec. Bunye’s statements may be admitted.