Recorded telephone conversation cannot be used as court evidence



Persida Acosta

Persida Acosta

Dear PAO,
My husband and I are already separated because of another woman. They are now living together but I do not know their whereabouts.
I managed to record one of our conversations over the phone where he admitted that he does not love me anymore and that he is living with his paramour in one house. I have no other evidence that they are living together aside from the admission that I have recorded. May I use this record in filing a case for concubinage?
                                        Mrs. Salcedo


Dear Mrs. Salcedo,
You cannot use the recorded telephone conversation between you and your husband containing his admission that he is living with his paramour as evidence in the filing of a case for concubinage.

It is stated under the Rules of Court that the act, declaration or omission of a party as to a relevant fact may be given in evidence against him (Section 26, Rule 130, Rules of Court). However, the admission of your husband that he is living with his mistress cannot be used for the prosecution of concubinage. According to Republic Act (R.A.) No. 4200 entitled, “An Act to Prohibit and Penalize Wiretapping and other Related Violations of the Privacy of Communication, and for other Purposes,” otherwise known as the “Anti Wiretapping Law,” 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 obtained or secured by any person through tapping of any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word using a device commonly known as a dictaphone or dictagraph or detectaphone or walkie-talkie or tape recorder without authority from all of the parties to the private communication or spoken words shall not be admissible in evidence in any judicial, quasi-judicial, legislative or administrative hearing or investigation (Sections 1 and 4, R.A. No. 4200).

On the other hand, even if the recorded conversation is admissible, such could not be helpful for the prosecution of the case of concubinage. It is stated under the Revised Penal Code that concubinage may be committed by a husband who shall: (1) keep a mistress in the conjugal dwelling, or (2) shall have sexual intercourse, under scandalous circumstances, with a woman who is not his wife, or (3) shall cohabit with her in any other places. Thus, if you are to file a complaint for concubinage on the basis of cohabitation in any other places, you should present evidence to prove that your husband is living with another woman in other place. This may be proved by testimonies of witnesses who have personal knowledge of their cohabitation. Accordingly, it is essential that you indicate the whereabouts of your husband in your complaint.

We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.


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