Admissible and Inadmissible Evidence under the Anti-Wiretapping Law

(RA No. 4200)

Section 1 of R.A. 4200 entitled, An Act to Prohibit and Penalized Wire Tapping and Other
Related Violations of Private Communication and Other Purposes, provides that it shall be unlawful
for any person, not being authorized by all the parties to any private communication or spoken word,
to tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept,
or record such communication or spoken word by using a device commonly known as a dictaphone
or dictagraph or detectaphone or walkie-talkie or tape recorder, or however otherwise described.

Applicability to Private Conversation

The provisions of Sec. 1 of R.A. No. 4200, does not consider it unlawful to record open and public
communications. What the law protects are private conversations and communications. It is considered
unlawful to (a) secretly overhear, (b) intercept, or (c) record private communication spoken word when
doing so is without the authority of all the parties to such private communication. The law does not prohibit
the recording of private communications that are authorized by all parties. These recordings are admissible
in evidence and the person/s who made the recording are not liable

In Ramirez v. Court of Appeals (G.R. No. 93833, September 28, 1995), the plaintiff filed a civil
case for damages against the defendant. In support of her claim, the plaintiff presented in evidence a
verbatim transcript of a recording made by the plaintiff herself of the conversation between her and the
defendant. Plaintiff contends that the provision merely refers to the unauthorized taping of a private
conversation by a party other than those involved in the communication. She further argues that R.A. 4200
penalizes the taping of a private communication, not a private conversation and that consequently, her
act of secretly taping her conversation with private respondent was not illegal under the said act.

The Supreme Court disagreed with the petitioner. By private conversations and communications,
the law simply refers to communication between persons privately made. It stated that Section 1 of
R.A. 4200 makes no distinction as to whether the party sought to be penalized by the statute ought to be a
party other than or different from those involved in the private communication. The statutes intent to
penalize all persons unauthorized to make such recording is underscored by the use of the qualifier any.

In People v. Navarro (G.R. No. 121087, August 26, 1999), a radio reporter was killed by the
accused, a police officer. The killing was preceded by a heated altercation between the accused and the
victim in front of several people in a police station. The altercation was captured in a tape recording made
by a fellow reporter. The Supreme Court ruled that the tape recording is admissible and is not a transgression
of the provisions of R.A. 4200 because the recorded altercation is not a private communication and it is
apparent that since the heated discussion occurred in the presence of other persons, it could not be private.

Modes of Recording Private Conversation

Sec. 1 of the same law mentions certain modes of recording the private conversations, such as: (a)
to tap any wire or cable, (b) to use a dictaphone, dictagraph or detectaphone (c) to use a walkie-talkie, (d)
to use a tape recorder, or (e) to use any device otherwise described.

In Ganaan v. Intermediate Appellate Court (G.R. No. L -69809, October 16, 1986) a case which
dealt with the issue of telephone wiretapping, the Supreme Court held that the use of a telephone extension
for the purpose of overhearing a private conversation without authorization did not violate R.A. 4200
because a telephone extension devise was neither among those device(s) or arrangement(s) enumerated
therein. The Court explained that although whether or not listening over a telephone party line would be
punishable under the law was discussed on the floor of the Senate, telephone party lines were deleted from
the final provisions of the law. It was held that an extension telephone line cannot be placed under the
category of the enumerated devices.

Admissibility of Wiretapped Evidence

Under Section 3 of R.A. 4200, a peace officer, who is authorized by a written order of the Court,
may execute any of the acts declared to be unlawful in the two preceding sections in cases involving
the crimes of treason, espionage, provoking war and disloyalty in case of war, piracy, mutiny in the
high seas, rebellion, conspiracy and proposal to commit rebellion, inciting to rebellion, sedition,
conspiracy to commit sedition, inciting to sedition, kidnapping as defined by the Revised Penal Code,
and violations of Commonwealth Act No. 616, punishing espionage and other offenses against
national security.

The law does not prohibit the recording of all private communications, but provides a limited and
narrowly drawn exception for law enforcers. The law provides that police and other law enforcement
agencies may wiretap private communications but
- law enforcers must first secure a court order; and
- only in cases involving crimes against national security under the Revised Penal Code
(treason, espionage, rebellion or sedition) and kidnapping. The law further says that in cases
involving rebellion, conspiracy and proposal to commit rebellion, inciting to rebellion, sedition,
conspiracy to commit sedition, and inciting to sedition, there must be prior proof that rebellion or acts of
sedition have actually been or are being committed.

Authentication of Wiretapped Evidence

The Supreme Court requires that --- A voice recording is authenticated by the testimony of a
witness (1) that he personally recorded the conversation; (2) that the tape played in court was the one he
recorded; and (3) that the voices on the tape are those of the persons such are claimed to belong. This
ruling is consistent with Rule 11, Section 1 of the Rules on Electronic Evidence

Inadmissibility of Wiretapped Evidence

Section 4 of R.A. 4200 declares that any communication or spoken word, or the existence, contents,
substance, purport, effect, or meaning of the same or any part thereof, or any information therein contained
obtained or secured by any person in violation of the preceding sections of this Act shall not be admissible
in evidence in any judicial, quasi-judicial, legislative or administrative hearing or investigation.