Benhur Luy's hard drive pre-marked as evidence

MANILA, Philippines – Defense lawyers in the plunder case of Senator Ramon "Bong" Revilla Jr and his co-accused opposed the admission of the external hard drive of state witness Benhur Luy as evidence against their clients, but were overruled by the anti-graft court Sandiganbayan.

In the continuation of Revilla's bail hearing before the Sandiganbayan's 1st division on Thursday, July 31, the prosecution presented as evidence Luy's sealed white 500-gigabyte external hard drive.

Luy's data storage device supposedly contains records of the illegal transactions of his former boss and alleged pork barrel scam mastermind Janet Lim Napoles with government officials – among them Revilla – from 2004 to 2012.

Lawyer Stephen David, legal counsel for Napoles, said the businesswoman's camp was not caught by surprise by the presentation of the evidence. He said he knew of the drive's existence anyway and it was just a matter of time for the device to be presented in court.

The drive has been the subject of speculation and concern among lawmakers allegedly tagged in the documents stored in the device, after its contents were released by a national daily.

David's co-counsel and wife, Lanee Cui-David, however, admitted that the presentation of the hard drive as evidence came as a surprise, because the documents were not part of the pre-marked evidence in the preliminary conference for Revilla's case. 

Justice Undersecretary Jose Justiniano, recently tapped to assist the prosecution team in the Napoles scam cases, told reporters after the hearing that as a general rule, not all evidence require pre-marking during preliminary conference. He also said this can be done in some cases as a matter of strategy.

Authentication issues

The defense lawyers dismissed the storage device as inadmissible for being mere hearsay, noting how its contents had been repeatedly transferred over the years from one device to another without authentication.

Prosecutor Joefferson Toribio, however, explained that the device was authenticated by no less than the National Bureau of Investigation's Cybercrime Division, which conducted a forensic examination of the evidence. An NBI agent will attest to this in court in the coming hearings, the lawyer said.

Lawyer Mike Ancheta, legal counsel for Revilla's aide Richard Cambe, said the hard drive does not qualify as a business record. 

Ancheta cited Rule 8 of the Rules on Electronic Evidence, which explains when digital evidence will not be regarded as hearsay.

The rule Ancheta cited provides that a data compilation made "at or near the time" the data was supplied to someone who has personal knowledge of said data will not be regarded as hearsay. He noted that in the case of Luy, the data was transferred to the hard drive all at once in 2012, when the alleged transactions were made over an 8-year period.

David also said the documents should reflect a day-to-day record instead of a one-time listing. 

The rule, however, is that the business record has been "kept in the regular course of conduct of a business activity." The prosecution lawyer who refused to be named explained that Luy's records meet this standard, as they were regular listings of Napoles' disbursements over the years.

Lawyer Dennis Buenaventura, also a legal counsel for Napoles, noted the data has been transferred from one computer to another in 2008, and then eventually copied by Luy from the new computer in 2012 for back up. 

Buenaventura explained that this is already multiple hearsay, as Luy was not even the one who transferred the files in 2008.

Luy testified that it was Rodrigo Galay, an IT employee of Napoles, who transferred the files. This was after Napoles decided to upgrade their devices in the JLN Corporation office, where he was the finance officer.

The defense's objections were overruled by Justice Efren de la Cruz, but the lawyers manifested that theirs is a continuing objection in open court.

The same lawyers had objected to Luy's testimony during his first appearance before the court on July 24, arguing that his testimony was inadmissible in court. (READ: Luy's testimony inadmissible, defense lawyers argue)  – Rappler.com