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Weaving through the New Rules on Evidence (Part II)

"These privileges are rooted in relationships."



A fascinating and interesting concept in Evidence is “privileged communications.” This concept is rooted in relationships – whether marital, professional, religious, official or filial, and the confidentiality of the communications between them and those received by their agents in certain instances. The privileged nature of the communications promotes the harmony of the marriage, the fiduciary relationship between the professionals and their clients, the faith of the affected persons in their religious institutions; the love, trust, and respect between ascendants and descendants, the security of the country’s vital information, and the protection of trade secrets.

The most popularly known privilege is “marital privilege” which was unaffected by the amendments. The privilege provides that during their marriage, the husband or the wife cannot testify against the other without the consent of the affected spouse, except in a civil case by one against the other, or in a criminal case for a crime committed by one against the other or the latter’s direct descendants or ascendants (Section 24 (a), Rule 130 of the Rules on Evidence)

As for the attorney-client privilege, it now applies to persons reasonably believed by the client to be licensed to engage in the practice of law. Thus, those who pretend and are believed by their clients to be lawyers cannot share information which they received in confidence. While the Rule still recognizes the application of the privilege to the attorney’s secretary, stenographer, or clerk; the privilege now extends to other persons assisting the attorney like a paralegal or apprentice.

More importantly, the amendment consolidated and codified the exceptions to the privilege, such that the attorney or client cannot use the privilege as a shield to: (i) enable or aid the client or anyone to commit or plan to commit a crime or fraud; (ii) prevent the attorney from testifying in court on communications he received from the parties who claim by testate or intestate succession or by inter vivos transaction; (iii) prevent the client from testifying on communications regarding breach of duty by the lawyer, or by the lawyer to his client; (iv) prevent the attorney from testifying on communications concerning a document to which he is an attesting witness; or (v) prevent the attorney from testifying as to communications of common interest between two or more clients if the communication was made by any of them to him while retained or consulted in common (Section 24 (b), Rule 130 of the Rules on Evidence).

Another is physician-patient privilege, in which the amendment enlarged the application to include psychotherapists or persons reasonably believed by the patient to be authorized to practice medicine or psychotherapy. It likewise expanded the coverage of the communication or medical information to diagnosis or treatment of the patient’s physical, mental or emotional condition including alcohol or drug addiction. The privilege is no longer limited to the doctor and patients but now includes members of the patient’s family and those who have participated in the diagnosis or treatment under the direction of the physician or psychotherapist which may include medical residents, clinic assistants and nurses. The Rules on Evidence incorporated a definition of a “psychotherapist” as (i) a person licensed to practice medicine engaged in diagnosis or treatment of mental or emotional condition, or (ii) a person licensed as a psychologist by the government while similarly engaged. Unchanged is its limited application to civil cases but the requirement that the information “would blacken the reputation of the patient” was dropped from the provision (Section 24 (c), Rule 130 of the Rules on Evidence).

Commentators have for some time claimed that the penitent-priest privilege, highly favors the Roman Catholic Church since any information or communication of a penitential character to the priest is considered confidential unless the penitent consents to its disclosure. However, the amendments included in its application persons reasonably believed to be a priest or minister; and expanded the coverage to “affected persons” when it was previously limited to a “person making a confession” (Section 24 (d), Rule 130 of the Rules on Evidence). The intent is to make the Rule applicable to communications made to a spiritual adviser for advice. All these are limited by the requirement that the communication, confession or any advice given in a professional character is enjoined by the church to which the minister or priest belongs. While it is easier to ascertain that a Catholic is performing penance since it is a sacrament, scrutiny should be exercised on the claim of the privilege by ministers of other religious faiths due to the requirement that it is must be enjoined by the church discipline. Should the religious rule or discipline be in writing or is oral declaration of the rule sufficient? It will be best to wait for jurisprudence on this matter.

Under the public officer-state privilege, the public officer cannot be examined during or after his tenure as to communications made to him in official confidence, when the court finds that the public interest would suffer by the disclosure. The amendment on this privilege is limited only to the phrasing of the period of the coverage; previously it provided “during his term of office or afterwards” but now says “during or after his tenure”. The drafters veered toward protecting the confidentiality of the information even in the hands of third persons who may have obtained the information so long as the original parties to the communication took reasonable precaution to protect its confidentiality. This provision applies to all the privilege communications under Section 24, Rule 130. (Section 24 (e), Rule 130 of the Rules on Evidence).

Filial privilege requires that no person shall be compelled to testify against his parents, other direct ascendants, children or other direct descendants; and this remains to be the rule. This rule remained unchanged but was amended with regard to the exceptions to the disqualification to testify: (a) when such testimony is indispensable in a crime against that person, or (b) by one parent against the other (Section 25, Rule 130 of the Rules of Evidence). This is patterned from Article 215 of the Family Code of the Philippines.

Finally, regarding the privilege in relation to trade secrets, a person cannot be compelled to testify about any trade secret, unless the non-disclosure will conceal fraud or otherwise work injustice (Section 26, Rule 130 of the Rules on Evidence). The trade secret may include secret formulae, plans, processes and mechanisms (Air Philippines v. Pennswell, G.R. No. 172835, December 13, 2007).

There should have been another privilege communication which was part of the original recommendation for approval of the Supreme Court En Banc, journalist-source privilege, which was not included. Students, professors and practitioners should be mindful of the exclusion of journalist-source rule in the final approved amendments to the Rules on Evidence. The apparent reason for the jumble is that the official comparative matrix of the old and new rules with annotations has been circulating among students and professors. However, even without the journalist-source privilege, there is Republic Act No. 11458 that prohibits journalists, writers, reporters, contributors, opinion writers, columnists, managers, media practitioners involved in writing, editing, production, and dissemination of news for mass circulation of any print, broadcast, wire service organization or electronic mass media, including cable TV and its variants from being compelled to disclose the source of the news or information unless the court, the House of Representatives, or the Senate or any committee of Congress finds that its revelation is demanded by the security of the State.

For the succeeding Footnotes issues, the concepts of hearsay and its exceptions, opinion rule, character evidence and its proof, and authenticity of documents will be discussed.

Topics: Tranquil G.S. Salvador III , Evidence , privileged communications
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