MOTION FOR RECONSIDERATION
(In Re: ORDER, dated x x x)
THE ACCUSED, by counsel, respectfully states:
1. On September 7, 2007 the accused, thru counsel, received a copy of the Order, dated August 22, 2007, denying his “MOTION FOR DOCUMENT AND HANDWRITING EXAMINATION BY THE NATIONAL BUREAU OF INVESTIGATION”. X x x..
2. In his aforecited “MOTION FOR DOCUMENT AND HANDWRITING EXAMINATION BY THE NATIONAL BUREAU OF INVESTIGATION”, the accused prayed that an order be issued authorizing the National Bureau of Investigation to conduct a new, confirmatory and independent document and handwriting examination of (a) The subject standard and questioned documents, i.e., manager’s checks, application form, and related in-house forms and sheets, as may be jointly identified by the parties, assisted by their counsel, the list of which shall be duly confirmed by the Court in an order for the purpose; and (b) The questioned and standard signatures of both the concerned signatories, officers and staff of the complainant Bank, on one hand, and of the accused, on the other, as may likewise be jointly identified by the parties, assisted by their counsel, the list of whom shall be duly confirmed by the Court in an order for the purpose, based on the following arguments:
1. The record of the preliminary investigation of the Office of the City Prosecutor of Makati City shows that Document Report No. x x x, dated x x x, prepared by the officials of the Crime Laboratory of the National Headquarters of the Philippine National Police at Camp Crame, Quezon City, excluded and failed to examine the questioned and standard signatures of the accused in relation to the questioned and standard documents and signatures of the other signatories of the subject Bank checks, application forms and related documents.
2. The PNP Crime Laboratory examiners and officials did not inform, invite, request and/or summon the accused at that time to submit his questioned and standard signatures so that the same could likewise be examined in relation to his questioned and standard documents and signatures examined by the PNP Crime Laboratory. The accused had no knowledge of such an examination.
3. The end result was that the PNP Crime Laboratory had made a limited, partial, selective, incomplete, biased and prejudicial examination based only of certain questioned and standard signatures submitted by the concerned officers and staff of the complainant Bank -- to the detriment of the accused.
4. The Report excluded an examination of the questioned and standard documents themselves (manager’s checks, application forms, and he like).
It limited itself to an examination of the questioned and standard signatures of the concerned Bank officers and staff who had at that time assumed an openly adverse and prejudicial position against the accused.
5. The standard and questioned documents and signatures and other related in-house forms, sheets and papers are still in the possession and archives of the complainant Bank.
6. The accused is suspicious of the credibility, neutrality and sincerity of the PNP Crime Laboratory examiners who had submitted the Report because they seemed to have been prevailed upon and influenced by the officers of the Bank to conduct the partial, biased and prejudiced examination without the participation of and notice to the accused, i.e., without giving the accused an opportunity to l submit his own questioned and standard signatures that could have shed true light to the end result of the examination.
7. In the interest of justice and fair play, there is a need for the forensic laboratory of the National Bureau of Investigation (NBI) to conduct a new, confirmatory and independent document and handwriting signature examination of the questioned and standard documents and signatures of the concerned officers and staff of the Bank and the X x x Marketing Inc., on one hand, and of the accused, on the other, in a manner that is complete, comprehensive, fair, neutral, transparent and credible.
8. The life, liberty and property of the accused are at stake in these pending consolidated Estafa cases.
The huge amounts involved in the checks subject matter of the instant cases carry 20 years of imprisonment.
9. The accused is a family man, a young and law-abiding citizen, and has never been charged of any kind of suit of whatever nature except the instant consolidated cases.
3. Rebutting the opposition of the Prosecution to the said motion, the accused in his Reply argued thus:
1. The motion of the accused for an order authorizing the National Bureau of Investigation (NBI) DOES NOT AMOUNT TO JUDICIAL INTERVENTION IN AID OF THE DEFENSE.
2. The defense needs such a formal order, for otherwise the NBI would not entertain any request from any party or from the public, even in a pending criminal case, unless there is a formal court order to that effect.
The motion is precisely intended for that purpose.
3. The motion aims to achieve and determine absolute truth and real justice in the instant case by compelling the NBI -- whose credibility the accused trusts more than the PNP Crime Laboratory insofar as the instant case is concerned, considering that the old and incomplete handwriting examinations conducted by the PNP Crime Laboratory did not even involve and invite the accused to participate in the process by seeking the submission of his own standard and questioned signatures) -- to submit to the Honorable Court a truly comprehensive and fair examination report on the subject documents and signatures.
4. Further, without a formal order, surely, the complainant X x x Bank and its bank officers will not surrender or entrust to the accused, his counsel, and/or the NBI scientists and examiners the originals of the questioned and standard documents and signatures involved in the instant case on the excuse that the same are private and confidential corporate and business documents.
Thus, there is a need on the part of the accused to implore and invoke the coercive powers of the Judiciary, pursuant to his nights under the Bill of Rights and Rule 115 (Rights of the Accused).
The pending motion is NOT INTENDED TO DELAY THE CASE BUT WILL IN FACT AID AND ASSIST THE HONORBALE COURT IN PEFORMING ITS NOBLE FUNCTIONS AND DUTIES AS A JUDICIAL FACT-FINDER AND DECISION-MAKER.
5. The questioned Order stated the following reasons for the denial of the said motion of the accused:
5.1. “The trial of the case is already on-going . ”;
5.2. “xxx The accused has the option to utilize the concerned NBI intended witness during the presentation of defense evidence.”;
5.3. “. The Court is called upon to conduct its own evaluation of the questioned signature even with the opinion on the matter coming from an NBI expert”;
6. It should be noted that this case is still in the MEDIATION STAGE, not the trial stage. It is not accurate to state that “the trial of the case is already on-going”. There is no evidence presentation yet by the Prosecution as of now.
7. The accused cannot and is not allowed by NBI rules and regulations, the Central Bank rules and regulations, and the Bank Secrecy Law and its implementing rules and regulations to commence, initiate, and complete an NBI questioned document examination procedure on his own without the compulsory intervention and order of the Court.
The X x x Bank, which is in possession of the originals of the questioned bank forms and documents will not release the same the NBI and/or to the accused or his counsel for transmittal to the NBI to conduct such document examination without a compulsory judicial process or order, because, surely, the Bank and its officers would invoke the Bank Secrecy Law and its own internal Manual of Operations which provide for confidentiality rules insofar as its in-house bank transactions are concerned.
It would thus be legally and physically impossible for the accused to attempt to do any legal or official act or step to exercise the so-called “ option to utilize the concerned NBI intended witness during the presentation of defense evidence.”
8. The accused agrees with the Court that its has the power to “ conduct its own evaluation of the questioned signature even with the opinion on the matter coming from an NBI expert”.
However, it must be noted that the accused in now at a disadvantageous and underdog positionPNP document examination report, which was completed and because the Prosecution has the generous benefits arising from an existing
issued by the said office, upon the prodding and influence of he Bank, without the full participation of and without prior notice to the accused.
The accused has the constitutional due-process right to present his own counter-expert witness to counteract the testimonial evidence to be presented by the PNP Crime Laboratory officer when he/she justifies the document examination report of the said office during the main trial stage of this case.
Moreover, without surrendering its aforementioned powers, it is judicious and wise for the Court, which is not a scientific agency with formal training and technical experience in forensic document examination, to be assisted and enlightened by the respective counter expert witnesses of both sideswhere the life, liberty and property of the accused, who is a law-abiding family man without prior criminal records, are at stake. in a crucial controversy, as the instant case,
As provided in Sec. 49, Rule 130 of the Rules of Court, the opinion of an expert witness, as in the instant case, requires “special knowledge, skill, experience or training”. The Courts should avail themselves of such expertise where warranted in the interest of truth and justice.
9. With the indulgence of the Court¸ the accused takes the liberty to elucidate herein below on the theory and practice of forensic questioned document examination.
9.1. The task of forensic document examination is to answer questions about a disputed document using a variety of scientific processes and methods. Many examinations involve a comparison of the questioned document, or components of the document, to a set of known standards. The most common type of examination involves handwriting wherein the examiner tries to address concerns about potential authorship.
One task of a forensic document examiner is to determine if a questioned item originated from the same source as the known item(s), then present their opinion in court as an expert witness. Other tasks include determining what has happened to a document, determining when a document was produced, or deciphering information on the document that has been obscured, obliterated or erased.
There are three stages in the process of examination. In brief, they are:
- The questioned and the known items are analyzed and broken down to directly perceptible characteristics.
- The characteristics of the questioned item are then compared against the known standard.
9.2. Evaluation of the similarities and differences of the compared properties determines which ones are valuable for a conclusion. This depends on the uniqueness and frequency of occurrence in the items. [1]
9.3. A questioned document examiner examines documents in cases where foul play is suspected. Cases frequently involve handwriting comparisons, typewriting comparisons, physical alterations to a document, and many variations on these themes. Some document examiners are involved with chemical testing of documents, while others concentrate on physical and mechanical testing. The document examiner is often a qualified expert witness, accepted in court by a judge after being examined and cross-examined by counsel.
The most important factor in any document examination is the quality of the standards (the documents of known origin that are compared with the questioned documents). The questioned document is important too, but it is a "given". It defines the outer limits of the examination, but how far the examiner can go within those limits depends on the standards.
The important facts about standard documents are:
- There must be no doubt about the authenticity of the standards. The document examiner needs to be able to rely on the standards, and the standards may need to be accepted as evidence in court.
- Every handwriting shows natural variation. In cases where varying letter forms is an issue, if the examiner doesn't see enough standard writing, he or she will not have the information needed to form a good opinion. Typewriting cases often depend on identification of some individualizing defect of a machine. Defects can be sporadic, especially in their developmental stages. A few lines of typing or a quick run through the alphabet will not yield enough material to reveal the real character of the typing element. [2]
9.4. By far the greatest number of questions about documents involve handwriting - especially signatures. Such as:
- Is the signature genuine?
- Is the document simulated/traced, and if so is it simulated/traced by a particular person?
- Is the same person the author of several documents?
- Which of a group of people wrote an anonymous letter?
- Did someone guide a person's hand as a will was signed?
- Did the doctor come back later and alter the medical records?
- Did the signer of the document also initial the changes?
- What is written under the crossed out portion of the writing?
- Was the document written on the date indicated?
There are also questions about typewriting or printing processes:
- Are both documents typed on the same machine?
- Was the document removed from the typewriter and later reinserted during its preparation?
- Did a particular person do the typing?
- What type of printer, or what printing process was used to print the document?
Some questions are not concerned with handwriting or typewriting:
- Are there erasures on the document?
- Are there alterations or obliterations on the document?
- What was originally written before the alteration or under the obliteration?
- Are there perforations, folds, staple holes, or other physical clues on the document?
- Was the entire document rewritten, or was it prepared sequentially, over a period of time?
- Depending on the nature and condition of the documents involved, these questions can be answered by the trained and experienced questioned document examiner. The first group of questions, involving handwriting, requires a close side-by-side examination of the questioned and known (exemplar) documents. This examination is done with the unaided eye and with magnifiers and microscopes set at varying powers of magnification. The one question that cannot be approached in this manner is that of the date of the document. Physical clues on the document may allow the examiner to reach some conclusions about time and sequence of preparation of the document, but to actually date the ink, an ink chemist is consulted.
Questions involving indentations, erasures and alterations can be answered with careful use of lighting, photography, and simple, non-destructive tests in the document examination laboratory. Infrared and ultra-violet photography are used to answer questions that remain mysteries under normal lighting. Laboratory equipment such as the ACO Electronics' QDX) and the Foster and Freeman VSC-4c are used in the QDEWill laboratory to reveal alterations, additions, obliterations, erasures, and the presence of multiple inks on documents.
Typewriting is becoming a relic of the past as more people use computers and word processors. A whole new area of document questions involving photocopies, facsimiles and computer printouts is evolving. In order to answer some of these questions, a forensic document examiner must study the characteristics of the whole class of machines, such as photocopiers, and then have access to detailed files, which show the specific characteristics of the output of a specific brand of machine.
In regard to typewriting, individualizing characteristics often develop due to wear or damage to the typing element. This may result in a distinctive appearance to the document, which the examiner can detect through careful observation and measurement. The question most difficult to answer is whether one individual typed a document, and only certain circumstances allow an answer to this question.
In a similar situation to the one above involving office machines, questions about paper require knowledge of the characteristics of paper. The examiner may need to have a library of paper samples at his or her disposal if some questions about paper are to be answered. And, just as in the case of ink dating, in some instances it is necessary to consult a specialist in paper manufacturing. [3]
10. In the fairly recent case of SPOUSES SAMUEL ULEP, etc., et. al. vs. HONORABLE COURT OF APPEALS, et. al., G.R. No. 125254, October 11, 2005, it was held that “due to the technicality of the procedure involved in the examination of forged documents, the expertise of questioned document examiners is usually helpful” and, the accused believes, should, as a rule, be encouraged by the Courts:
. As a rule, forgery cannot be presumed and must be proved by clear, positive and convincing evidence, the burden for which lies on the party alleging it. The fact of forgery can only be established by a comparison between the alleged forged signature and the authentic and genuine signature of the person whose signature is theorized to have been forged.
Here, petitioners’ claim of forgery is unsupported by any substantial evidence other than their own self-serving testimonies. As it were, they failed to present handwriting experts and other persons familiar with the handwriting of the spouses Atinedoro Ulep, his wife Beatriz and sister Valentina Ulep that would show that their signatures appearing in the questioned deed of sale in favor of respondent INC were forged. Due to the technicality of the procedure involved in the examination of forged documents, the expertise of questioned document examiners is usually helpful. These handwriting experts can help determine fundamental, significant differences in writing characteristics between the questioned and the standard or sample specimen signatures, as well as the movement and manner of execution strokes. .
11. In the likewise recent case of PAN PACIFIC INDUSTRIAL SALES CO., INC., PETITIONER, VS. COURT OF APPEALS AND NICOLAS CAPISTRANO, G.R. No. 125283, February 10, 2006, the Supreme Court held bare denial cannot prevail over expert testimonial evidence. The Supreme Court also held therein that “ he who disavows the authenticity of his signature on a public document bears the responsibility to present evidence to that effect. Mere disclaimer is not sufficient. At the very least, he should present corroborating witnesses to prove his assertion. At best, he should present an expert witness.”
To support the allegation of the spuriousness of his signature on the Deed of Absolute Sale and that of his wife on the Marital Consent, Capistrano relied heavily on his bare denial, at the same time taking sanctuary behind other circumstances, which supposedly cast doubt on the authenticity of the documents. Capistrano did not bother to present corroborating witnesses much less an independent expert witness who could declare with authority and objectivity that the challenged signatures are forged. .
The case of Chilianchin v. Coquinco also finds application in this regard wherein we stated that:
As the lower court correctly said, the plaintiff did not even present a sample of his authentic signature to support his contention that it is not his the (sic) signature appearing in said document. He did not call a handwriting expert to prove his assertion. His attorney, at the beginning of the trial, made it of record that if the defendant present an expert in hand-writing to show that the signature in question is genuine, the plaintiff will also present an expert to the contrary, as if it were incumbent upon the defendant to show that the signature of the plaintiff in Exhibit A is genuine . . . .
Corollarily, he who disavows the authenticity of his signature on a public document bears the responsibility to present evidence to that effect. Mere disclaimer is not sufficient. At the very least, he should present corroborating witnesses to prove his assertion. At best, he should present an expert witness.
On the other hand, the Court cannot understand why an unfavorable inference arose not from Capistrano’s but from Cruz’s failure to have the documents examined by an expert witness of the National Bureau Investigation (NBI) and to present the notary public as witness. Specifically, the courts below took Cruz’s inability to obtain the NBI examination of the documents as he had somehow undertaken as an indication that the documents are counterfeit.
.
WHEREFORE, premises considered, and in the interest of justice, it is respectfully prayed that the ORDER, dated x x xbe RECONSIDERED.
Las Pinas City, September 21, 2007.
LASERNA CUEVA-MERCADER LAW OFFICES
Counsel for the Accused
Unit 15, Star Arcade, C.V. Starr Ave.
Philamlife Village, Las Pinas City 1743
MANUEL J. LASERNA JR.
Roll No. 33640, 4/27/85
IBP Lifetime Member No. 1907
IBP PPLM Chapter
PTR No. 9177856, 1/4/06, Las Pinas City
