Cross examining to authenticate

 Posted By: je froilan m. clerigo
04-Jun-2008

We instinctively think of cross-examination as a tool to destroy the other side’s case. Rarely do we use it constructively, that is, to enhance our own case. Rarer still do we cross-examine to authenticate an otherwise problematic document, as we’ve done below:

 

In a case for collection, one of our exhibits was a delivery receipt listing the various merchandise that we claimed were delivered to and received by the defendant corporation. The DR bore the signature of the defendant's warehouseman or "bodegero." 

 

In its answer, however, the defendant denied having received the merchandise listed in this DR. The defendant, in effect, denied that the signature on the DR was that of its employee. They noted that, in past deliveries, the DRs had all been signed by a different person. 

 

When we offered the DR at the conclusion of our case-in-chief, it was objected to for being unauthenticated. While the court admitted it nonetheless, we felt that the decision on the case will eventually take note of the lack of authentication and deny it any probative value.

 

During the presentation of defendant's evidence, its president testified and denied having received the merchandise. When we confronted him with the DR and the signature of his "bodegero", he denied it and said that he cannot identify the signature, which was just an intelligible scribbling and without the name of the person who signed it. The next to testify was the Vice President for Finance, who made the same denial.

 

Fortunately, we had a letter from the defendant asking our client for extension of time to settle its obligation. This letter referenced the date and number of the DR; so, in our view, this letter effectively authenticates the DR. In other words, the letter's reference to the DR is an admission of the DR's existence; it also admitted that the merchandise listed in the DR were, in fact, received by the defendant.  

 

The problem was, this letter also needs to be authenticated.  

 

Authenticating a document means showing to the court that the document is what we, the proponent, claim it to be. In the case of the DR, since our intention was to use it to prove that the various merchandise were delivered to and received by the defendant, we need to prove that it was indeed signed by the defendant's bodegero; otherwise, it has no value so far as the question of receipt of the delivery is concerned.

 

As I mentioned earlier, we were thinking of authenticating the DR by the letter from the defendant. However, in the case of the letter, we must also prove that the letter indeed came from the defendant corporation and that it was indeed signed by the officer of the defendant. If we fail to do so, the court must reject it for being unauthenticated.

 

The rules of court (Rule 132, Section 20) says that due execution and authenticity is proved either "a) by anyone who saw the document executed or written; or b) by evidence of the genuineness of the signature or handwriting of the maker." How is genuineness of handwriting proved? Section 22 says that one way it may be proved is the testimony "by any witness who believes it to be the handwriting of such person because he has seen the person write …"

 

 

There's our problem. Although our client can testify that they received the letter, they have not seen the letter being written. They do not even have personal knowledge that it was indeed signed by the defendant's Vice President for Finance.

 

We could have authenticated the DR - and hence would have had no need for the letter -  if the driver who made the deliveries can testify. Unfortunately, he was already fired from his job much earlier and was already unavailable to testify. And even if we can get him to testify, we feel that he will not be a reliable witness. It will simply not be credible for him to say he remembers having delivered on this particular transaction when he usually makes numerous deliveries at any one time, not only to the defendant but to other customers as well. In other words, we felt that he may not withstand cross-examination.

 

To authenticate the letter, an alternative was to call an expert witness to compare the signatures on the letter and on the previous communications and have him testify as to his opinion. But that was obviously impractical because of the cost and effort it will entail. Also, even then, the court may not find his opinion credible.

 

Another alternative was to call our client's credit and collection manager on rebuttal and have her testify as to her familiarity with the signature of the defendant's officer. We decided this will be our last resort.

 

Meantime, we decided to try and have the letter authenticated through cross-examination. There were already at least 2 other letters of various dates from the Vice President essentially asking for the same thing: an extension of time for the settlement of their obligation to our client. Although these were not marked during the preliminary conference, we were able to justify introducing them by telling the court that we intend to present them on rebuttal, if necessary. We said that, at the time of the preliminary conference, we couldn't have known what evidence to produce on rebuttal until we've first seen and heard defendant's evidence on its own case-in-chief.

 

We also anticipated an objection that the letters were beyond the scope of the direct examination. However, we were ready to argue that it was the defendant itself which opened the door for the letters. When they denied having received the merchandise, we reasoned that the plaintiff is then entitled to show by the letters that there had been no problems in earlier deliveries. If there had been no such difficulties in the past, there is no logical reason for plaintiff to falsely claim that there was delivery when in fact there was none.

 

Fortunately, the defense did not object.

 

So, we lumped the 3 letters, including the letter that we will use to authenticate the DR, and asked the witness:

 

Q:     How long have you been the Vice President for Finance of ABC Corporation?

A:     5 years.

Q:     In the performance of your duties as Vice President of ABC Corporation, you sometimes write letters to suppliers?

A:     Yes.

Q:     Including the plaintiff XYZ Corp.?

A:     Yes.

Q:     You sent those letters as authorized representative of ABC Corporation?

A:     Yes.

Q:     Please take a look at these 3 documents (letters). Do you recognize them?

A:     Yes.

Q:     They are letters from ABC Corporation to the plaintiff, correct?

A:     Yes.

Q:     The signatures on each of those letters above the name _____________ are yours, correct?

A:     Yes.

 

We then marked all of the letters, and then offered them as evidence. The letter that bore the reference to the DR was offered as an authenticating document, that is, that the signature of the "bodegero" on the DR was authentic because otherwise, the defendant would not have acknowledged it in the letter.

 

The court eventually decided in our favor. The case is now on appeal.