Taped conversation not admissible as evidence

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Persida Acosta

Persida Acosta

Dear PAO,
I found out that my husband has an illicit relationship with his former officemate. When I confronted the woman over the phone, she did not deny her relationship with my husband and even said to me that my husband will separate from me because he does not love me anymore. Can I file a case for concubinage/adultery against the woman? I have recorded our conversation as evidence for the case that I will be filling.
M. Ferrer

Dear M. Ferrer,
You can only file a complaint for concubinage in any of the following circumstances: If your husband keeps a mistress in the conjugal dwelling; if your husband shall have sexual intercourse, under a scandalous circumstances, with a woman aside from you; or if your husband shall cohabit with her in any other place (Article 334, Revised Penal Code or RPC). In this case, you cannot file such a complaint only against the mistress of your husband because it is provided under Section 5, Rule 110 of the RPC that the offended party cannot institute criminal prosecution without including the guilty parties, if both are alive, nor, in any case, if the offended party has consented to the offense or pardoned the offenders. On the other hand, a case for adultery is improper in your situation because this crime is being filed by a husband against his wife who shall have sexual intercourse with a man not her husband and against the said man who has carnal knowledge of her, knowing her to be married even if the marriage be subsequently declared void (Article 333, RPC).

As to the recorded conversation which you have stated in your problem, you may not utilize the same as evidence for your complaint for concubinage even if there is an admission of an act constituting the crime. It is provided under Republic Act (R.A.) No. 4200, otherwise known as the “Anti-Wire Tapping Act,” that it shall be unlawful for any person, not being authorized by all the parties to any private communication or spoken work, 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 walkie-talkie or tape recorder, or however otherwise described (Section 1, R.A. No 4200). Thus, 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 R.A. No. 4200 shall not be admissible in evidence in any judicial, quasi-judicial, legislative or administrative hearing or investigation (Section 4, R.A. No. 4200).

We hope that we have answered your query. Our legal opinion may vary if other facts are stated or elaborated.


Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net

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