administrative, involving the same parties and
subject matter, the ad- verse party having the
Chapter VII
RIGHTS OF THE ACCUSED (Rule 115)
Rights of the accused at the trial (Bar 1992; 1996;
1998; 2004)
1. The rights of the accused are normally treated
in Constitutional Law specifically under the topic
on the Bill of Rights. The discussion in this
treatise shall be confined to selected rights of an
accused.
2. Sec. 1 of Rule 115 enumerates the rights of the
accused "at the trial."
It provides that "In all criminal prosecutions, the
accused shall be entitled to the following rights:"
(a) To be presumed innocent until the contrary is
proved beyond reasonable doubt.
(b) To be informed of the nature and cause of
accusation against him.
(c) To be present and defend in person and by
counsel at every stage of the proceedings, from
arraignment to promulgation of the judgment.
The accused however, may waive his presence at
the trial pursuant to the stipulations set forth in
his bail, unless his presence is specifically
ordered by the court for purposes of
identification. The absence of the accused
without justifiable cause at the trial of which he
had notice shall be considered a waiver of his
right to be present thereat. When an accused
under custody escapes, he shall be deemed to
have waived his right to be present on all
subsequent trial dates until custody over him is
regained. Upon motion, the accused may be
allowed to defend himself in person when it
sufficiently appears to the court that he can
properly protect his rights without the assistance
of counsel.
(d) To testify as a witness in his own behalf but
subject to cross-examination on matters covered
by direct examination. His silence shall not in any
manner prejudice him.
(e) To be exempt from being compelled to be a
witness against himself.
(f) To confront and cross-examine the witnesses
against him at the trial. Either party may utilize
as part of its evidence the testimony of a witness
who is deceased, out of or cannot with due
diligence be found in the Philip- pines,
unavailable, or otherwise unable to testify, given
in another case or proceeding, judicial or
opportunity to cross-examine him.
(g) To have compulsory process issued to secure
the attendance of witnesses and production of
other evidence in his behalf.
(h) To have speedy, impartial and public trial.
(i) To appeal in all cases allowed and in the
manner prescribed by law.
Presumption of innocence (Bar 2005)
1. The presumption of innocence under the Rules
is of a constitutional origin and a mere
substantial reiteration of Sec. 14(2) of Art. Ill of
the 1987 Constitution of the Philippines which
provides:
"Sec. 14 (2) x x x In all criminal prosecutions, the
accused shall be presumed innocent until the
contrary is proved x x x."
2. An accused in criminal prosecutions is to be
presumed innocent until his guilt is proven
beyond reasonable doubt. This constitutional
guarantee cannot be overthrown unless the
prosecution has established by such quantum of
evidence sufficient to overcome this
presumption of innocence and prove that a
crime was committed and that the accused is
guilty thereof. Under our Constitution, an
accused enjoys the presumption of innocence.
And this presumption prevails over the
presumption of regularity in the performance of
official duty (People v. Sy, G.R. No. 185284, June
22, 2009; People v. Frondozo, G.R. No. 177164,
June 30, 2009; See People v. Alivio, G.R. No.
177771, May 30,2011 for related reading).
3. Presumption of regularity in the performance
of official duty should not by itself prevail over
the presumption of innocence (People v. Ong,
432 SCRA 470; People v. Paloma, G.R. No.
178544, February 23, 2011). Sec. 3(m) of Rule
131, establishes the disputable presumption that
"official duty has been regularly performed "
Hence, as a general rule, the testimony of the
police officers who apprehended the accused is
usually accorded full faith and credit because of
the presumption that they have performed their
duties regularly. However, when the
performance of their duties is tainted with
irregularities, such presumption is effectively
destroyed. While the law enforcers enjoy the
presumption of regularity in the performance of
their duties, this presumption cannot prevail
over the constitutional right of the accused to be
presumed innocent and it cannot by itself
constitute proof of guilt beyond reasonable
doubt. The presumption of regularity is merely
just that—a mere presumption disputable by
contrary proof and which when challenged by
evidence cannot be regarded as binding truth
(People v. Cantalejo, G.R. No. 182790, April 24,
2009; See People v. Alejandro, G.R. No. 176350,
August 10,2011).
Prima facie presumptions of guilt
May the Rules or the law provide for a
presumption of guilt?
An example of this presumption is found in Sec.
3(j) of Rule 131 of the Rules of Court. Under this
provision, "a person
found in possession of a thing taken in the doing
of a recent wrongful act is the taker and the doer
of the whole act x x x."
An answer to the question may be gleaned from
a case decided several years ago. In that case, the
petitioners were convicted of the offense of
illegal fishing with the use of obnoxious or
poisonous substance penalized under
Presidential Decree (P.D.) No. 704, the Fisheries
Decree of 1975. They challenge the provision of
P.D. No. 704 which provides:
"The discovery of dynamite, other explosives and
chemical compounds containing combustible
elements, or obnoxious or poisonous substance,
or equipment or device for electric fishing in any
fishing boat or in the possession of a fisherman
shall constitute a presumption that the same
were used for fishing in violation of this Decree,
and the discovery in any fishing boat of fish
caught or killed by the use of explosives,
obnoxious or poisonous substance or by
electricity shall constitute a presumption that
the owner, operator or fisherman were fishing
with the use of explosives, obnoxious or
poisonous substance or electricity."
Petitioners contend that this presumption of
guilt under the Fisheries Decree violates the
presumption of innocence guaranteed by the
Constitution.
Citing previous pronouncements, the Court held
that the validity of laws establishing
presumptions in criminal cases is a settled
matter. It is generally conceded that the
legislature has the power to provide that proof
of certain facts can constitute prima facie
evidence of the guilt of the accused and then
shift the burden of proof to the accused provided
there is a rational connection between the facts
proved and the ultimate fact presumed. To avoid
any constitutional infirmity, the inference of one
from proof of the other must not be arbitrary
and unreasonable. In fine, the presumption must
be based on facts and these facts must be part of
the crime when committed.
The challenged provision of P.D. No. 704 creates
a presumption of guilt based on facts proved and
hence, is not constitutionally impermissible. It
makes the discovery of obnoxious or poisonous
substances, explosives, or devices for electric
fishing, or of fish caught or killed with the use of
obnoxious and poisonous substances, explosives
or electricity in any fishing boat or in the
possession of a fisherman evidence that the
owner and operator of the fishing boat or the
fisherman had used such substances in catching
fish. The ultimate fact presumed is that the
owner and operator of the boat or the fisherman
were engaged in illegal fishing and this
presumption was made to arise from the
discovery of the substances and the
contaminated fish in the possession of the
fisherman in the fishing boat. The fact presumed
is a natural inference from the fact proved.
The Court however, stressed that the statutory
presumption is merely prima facie. It cannot,
under the guise of regulating the presentation of
evidence, operate to preclude the accused from
presenting his defense to rebut the main fact
presumed. At no instance can the accused be
denied the right to rebut the presumption (Hizon
v. Court of Appeals, 265 SCRA 517).
Proof beyond reasonable doubt
1. The presumption of innocence is not meant to
be forever. It ends when it is overcome in a final
conviction. There is only one type of quantum of
evidence which overcomes the presumption —
proof beyond reasonable doubt. Without such
quantum of evidence, the accused is entitled to
an acquittal (Sec. 2, Rule 133, Rules of Court).
Proof beyond reasonable doubt is indispensable
to overcome the constitutional presumption of
innocence (People v. Montenegro, 436 SCRA 33;
People v. Labagala, G.R. No. 184603, August
2,2010; See People v. Campos, G.R. No. 176061,
July 4,2011 for related reading).
2. "x x x Proof beyond reasonable doubt does not
mean such a degree of proof as, excluding
possibility of error, produces absolute certainty.
Moral certainty only is required, or that degree
of proof which produces conviction in an
unprejudiced mind" (Sec. 2, Rule 133, Rules of
Court).
3. The Court in Mupas v. People, G.R. No.
172834, February 6, 2008, describes reasonable
doubt as "that doubt engendered by an
investigation of the whole proof and an inability
after such investigation to let the mind rest each
upon the certainty of guilt."
4. The presumption of innocence requires that
before the accused is convicted, his guilt must be
proven beyond reasonable doubt. Sec. 2, Rule
133 of the Rules of Court does not provide that
for proof to be deemed beyond reasonable
doubt, absolute certainty of his guilt is required.
The rule merely requires moral certainty. In
criminal cases, the prosecution is not required to
show the guilt of the accused with absolute
certainty. Only moral certainty is demanded, or
that degree of proof which, to an unprejudiced
mind, produces conviction. With that, the
prosecution has discharged its burden of proving
the guilt of the accused with moral certainty
(People v. Malate, G.R. No. 185724, June
5,2009).
The burden lies on the prosecution to overcome
such presumption of innocence by presenting
the quantum of evidence required. In so doing,
the prosecution must rest on the strength of its
own evidence and must not rely on the weakness
of the defense. And if the prosecution fails to
meet its burden of proof, the defense may
logically not even present evidence on its own
behalf. In such cases the presumption prevails
and the accused should necessarily be acquitted
(People v. Angus, G.R. No. 178778, August
3,2010). 5. The constitutional presumption of
innocence can be accorded to the accused only
in the absence of evidence to prove his guilt
beyond reasonable doubt. That constitutional
presumption cannot be upheld in the face of the
overwhelming and incontrovertible evidence for
the prosecution irresistibly pointing to the
conclusive culpability of the accused (People v.
Cabacaba, G.R. No. 171310, July 9,2008).
6. In prosecution of cases involving illegal
possession of prohibited drugs, the prosecution
must establish with moral certainty the
elemental act of possession of a prohibited
substance coupled with the fact that such
possession is not authorized by law. Essential,
however, in a drug-related case is that the
identity of the dangerous drug be established
beyond reasonable doubt. Since the dangerous
drug constitutes the corpus delicti of the offense
and the fact of its existence is vital to a judgment
of conviction, it behooves upon the prosecution
to establish and prove with certainty that the
dangerous drug presented in court as evidence
against the accused is the same item recovered
from his possession (Julius Cacao y Prieto v.
People of the Philippines, G.R. No. 180870,
January 22,2010).
7. Does the presumption of innocence end upon
conviction by the trial court even if the
conviction is appealed?
This was answered by the Court in the negative
in one case. Here, the RTC of Quezon City
rendered a decision convicting a judge, the
respondent in this case, for two counts of child
abuse or violations of Republic Act (R.A.) No.
7610. The convictions were however, appealed
to the CA.
A Senior State Prosecutor of the DO J wrote a
letter to the then Chief Justice inquiring whether
it is possible for the Supreme Court, in the public
interest, to motu proprio order the immediate
suspension of the judge in view of the
aforementioned RTC decision. The letter argued
that "Although the conviction is not yet final, the
presumption of innocence x x x enjoyed during
the pendency of the trial has already been
overcome by its result. The presumption today is
that she is guilty and must clear her name of the
charges."
The matter was referred by the Court for
comment and recommendation to the Office of
the Court Administrator (OCA), before which an
administrative complaint against the same judge
was pending.
The OCA recommended that the administrative
case be given due course and that the
respondent judge be indefinitely suspended
pending the outcome of the case. The Second
Division of the Supreme Court through a
Resolution, approved the recommendations,
thus, suspending the respondent judge from
performing judicial functions while awaiting the
final resolution of the criminal convictions
appealed from or until further orders from the
Court.
The respondent judge filed an Urgent Motion for
Reconsideration of the aforementioned
Resolution. The motion claimed that the
suspension order was issued without affording
respondent judge the opportunity to be heard
and that the suspension is essentially unjust
because the two criminal cases are still on appeal
before the CA and have, therefore, not yet
attained finality. As such, respondent still enjoys
the constitutional presumption of innocence and
the suspension clashes with this presumption
and is tantamount to a pre-judgment of her guilt.
The Court ruled that it cannot fully agree with
the recommendations of the OCA. The fact of
respondent's conviction by the RTC does not
necessarily warrant the suspension. Since the
convictions are currently on appeal before the
CA, the same have not yet attained finality. As
such, the respondent still enjoys the
constitutional presumption of innocence. It must
be remembered, explained the Court, that the
existence of a presumption indicating the guilt of
the accused does not in itself destroy the
constitutional presumption of innocence unless
the inculpating presumption, together with all
the evidence, or the lack of any evidence or
explanation, proves the accused's guilt beyond a
reasonable doubt. Until the accused's guilt is
shown in this manner, the presumption of
innocence continues and until a promulgation of
final conviction is made, this constitutional
mandate prevails (Re: Conviction of Judge AAA,
AM. No. 06-9-545-RTC, January 31, 2008).
Prosecution must rest on its own merits
1. In establishing the guilt of the accused,
jurisprudence requires that the prosecution
must rest on its own merits and must not rely on
the weakness of the defense. In fact, if the
prosecution fails to meet the required quantum
of evidence, the defense may logically not even
present evidence on its own behalf. In which
case, the presumption of innocence shall prevail
and hence, the accused shall be acquitted.
However, once the presumption of innocence is
overcome, the defense bears the burden of
evidence to show reasonable doubt as to the
guilt of the accused (Mupas v. People, G.R. No.
172834, February 6,2008).
2. For example, in reviewing rape cases, the
Supreme Court has constantly been guided by
certain principles among which is that the
evidence for the prosecution must stand or fall
on its own merits and cannot draw strength from
the weakness of the evidence for the defense
(People v. Lagarde, G.R. No. 182549, January 20,
2009; People v. An, G.R. No. 169870, August 4,
2009).
Effect of failure to identify the perpetrator
What is the effect of the failure to identify the
accused as perpetrator of the offense charged?
In one case of robbery with homicide, the
accused- appellants argued that in criminal
prosecutions, the State has the burden of
proving the guilt of the accused beyond
reasonable doubt. It has to prove the identity of
the accused as the malefactor, as well as the fact
of the commission of the crime for which he is
allegedly responsible. They argued that it can be
gleaned from the records of the case that the
prosecution relied mainly on the testimony of
the alleged eyewitness who did not even point to
them as the malefactors and she only did so
upon the instructions given her in a police camp.
They pointed out that they were invited allegedly
for violation of the anti-drugs law and were
appalled to learn that they were charged with a
different crime and the alleged witness was
coached to identify them. Evidently, they
stressed, their guilt has not been proved with the
required quantum of evidence. They asserted
that where the people's evidence fails to meet
the quantum required to overcome the
constitutional presumption of innocence, the
accused is entitled to acquittal regardless of the
weakness of his defense of denial and
uncorroborated alibi, for it is better to acquit a
guilty man than to unjustly keep in prison one
whose guilt has not been proven beyond the
required quantum of evidence.
On the other hand, the prosecution, through the
Office of the Solicitor General, argued that
findings of fact of the trial court are generally
upheld on appeal and the accused- appellants
are assailing the correctness of the findings of
fact of the trial court by impugning the credibility
of the prosecution witness. The prosecution
claimed that contrary to the accused-appellants'
claim that the police officers taught the witness
to point to them as the perpetrators, her
testimony is straightforward and direct.
After review, The Court found that the accused-
appellants should be acquitted. Declared the
Court:
"It is settled that when the issue is the
evaluation of the testimony of a witness or his
credibility, this Court accords the highest
respect and even finality to the findings of the
trial court, absent any showing that it
committed palpable mistake, misappreciation
of facts or grave abuse of discretion. It is the
trial court which has the unique advantage of
observing first-hand the facial expressions,
gestures and the tone of voice of a witness
while testifying.
"The well-entrenched rule is that findings of the
trial court affirmed by the appellate court are
accorded high respect, if not conclusive effect,
by this Court, absent clear and convincing
evidence that the tribunals ignored,
misconstrued or misapplied facts and
circumstances of substances such that, if
considered, the same will warrant the
modification or reversal of the outcome of the
case.
"Factual findings of trial courts, when
substantiated by the evidence on record,
command great weight and respect on appeal,
save only when certain material facts and
circumstances were overlooked and which, if
duly considered, may vary the outcome of the
case.
"In this case, the material fact and circumstance
that the lone alleged eyewitness, x x x was not
able to identify the accused-appellants as the
perpetrators of the crime, varies the outcome
of this case.
"One, they were not arrested for the crime of
robbery with homicide but were arrested
during a buy-bust operation.
"Apparently, the accused-appellants were
arrested without a warrant during a buy-bust
operation xxx transferred to Camp Karingal
under dubious circumstances, and made to
stand in a police line-up and identified bv an
eyewitness who failed to identify them three
times. These circumstances were ignored by the
trial court who gave too much credence on the
positive identification of the accused-
appellants by the same eyewitness during
direct examination.
"Trial courts are mandated not only to look at
the direct examination of witnesses but to the
totality of evidence before them. In every case,
the court should review, assess and weigh the
totality of the evidence presented by the
parties. It should not confine itself to oral
testimony during the trial " (People v. Olivo,
G.R. No. 177768, July 27,2009; Underscoring
supplied for emphasis).
Failure to comply with post-seizure procedures
set by law
What is the effect of the failure of the arresting
officers to comply with post-seizure procedures
set by law?
This has been answered in various decisions of
the Court. For instance, In People v. Frondozo,
G.R. No. 177164, June 30, 2009, the accused-
appellant assailed his conviction by the Court of
Appeals for violation of Sec. 5 of R.A. No. 9165
(Comprehensive Dangerous Drugs Act of 2002)
which among other illegal acts, penalizes the sale
and trading of dangerous drugs. The appeal
contended that the evidence showed that the
arresting officers have not complied with the
requirements for establishing the chain of
custody under Sec. 21 of the law. To establish the
identity of the shabu seized, the procedures laid
down in R.A. No. 9165 should be complied with.
It was pointed out that Sec. 21 of the
Implementing Rules and Regulations of R.A. No.
9165 clearly outlines the post-seizure procedure
in taking custody of seized drugs. It states:
(1) The apprehending team having initial
custody and control of the drugs shall,
immediately after seizure and confiscation,
physically inventory and photograph the same
in the presence of the accused or the person/s
from whom such items were confiscated and/or
seized, or
his/her representative or counsel, a
representative from the media and the
Department of Justice (DOJ), and any elected
public official who shall be required to sign the
copies of the inventory and be given a copy
thereof (Underscoring supplied).
The Court held that what is material in the
prosecution for illegal sale of dangerous drugs is
proof that the transaction or sale actually took
place, coupled with the presentation in court of
evidence of corpus delicti. Prosecutions for illegal
sale of prohibited drugs necessitate that the
elemental act of possession of prohibited
substance be established with moral certainty,
together with the fact that the same is not
authorized by law. The dangerous drug itself
constitutes the very corpus delicti of the offense
and the fact of its existence is vital to a judgment
of conviction. Therefore, it is essential that the
identity of the prohibited drug be shown beyond
doubt by complying with the law. In this case,
declared the Court, the arresting officers failed
to strictly comply with the procedures for the
custody and disposition of confiscated
dangerous drugs as prescribed by R.A. No. 9165.
The arresting officers did not mark the shabu
immediately after they arrested the accused.
Further, while there was testimony regarding the
marking of the shabu after it was turned over to
the police investigator, no evidence was
presented to prove that the marking thereof was
done in the presence of the accused. Also, fatal
in the prosecution's case is the failure of the
arresting officers to take a photograph and make
an inventory of the confiscated materials in the
presence of the accused or there was no
mention that any representative from the media,
DOJ or any elected public official had been
present during the inventory or that any of these
persons had been required to sign the copies of
the inventory. Clearly, none of the statutory
safeguards mandated by R.A. No. 9165 was
observed. Hence, the failure of the buy-bust
team to comply with the procedure in the
custody of the seized drugs raises doubt as to its
origins.
Nevertheless, while the seized drugs may be
admitted in evidence, it does not necessarily
follow that the same should be given evidentiary
weight if the procedures provided by
R.A. No. 9165 were not complied with. The
admissibility of the seized dangerous drugs in
evidence should not be equated with its
probative value in proving the corpus delicti. The
admissibility of evidence depends on its
relevance and competence while the weight of
evidence pertains to evidence already admitted
and its tendency to convince and persuade.
Finally, ruled the Court, the presumption of
regularity in the performance of official duty
relied upon by the lower courts cannot by itself
overcome the presumption of innocence nor
constitute proof of guilt beyond reasonable
doubt. As a rule, the testimony of police officers
who apprehended the accused is accorded full
faith and credit because of the presumption that
they have performed their duties regularly.
However, when the performance of their duties
is tainted with irregularities, such presumption is
effectively destroyed (See also Mallilin v. People,
G.R. No. 172953, April 30,2008; People v.
Obmiranis, G.R. No. 181492, December 16, 2008;
People v. Garcia, G.R. No. 173480, February 25,
2009; People v. Cervantes, G.R. No. 181494;
Catuiran v. People, 175647, May 8, 2009; People
v. Barba; G.R. No. 182420, July 23,2009; People
v. Gatlabayan, G.R. No. 186467, July 13,2011).
The equipoise rule
1. The presumption of innocence has given rise
to a jurisprudential rule referred to as
the'equipoise rule' which is well-settled in this
jurisdiction and which is a consequence of such
presumption. The application of the rule is
triggered by a situation where the court is faced
with conflicting versions of the prosecution and
the defense and where the evidence, facts and
circumstances are capable of two or more
explanations, one of which is consistent with the
innocence of the accused and the other
consistent with his guilt. This situation cannot
fulfill the test of moral certainty and is not
sufficient to support a conviction. The court then
will have to resort to the equipoise rule.
"The equipoise rule provides that where the
evidence in a criminal case is evenly
balanced, the constitutional presumption of
innocence tilts the scales in favor of the
accused" (People v. Erguiza, G.R. No. 171348,
November 26, 2008). If the inculpatory
testimony is capable of two or more
explanations, one consistent with the innocence
of the accused persons and the other consistent
with their guilt, then the evidence does not fulfill
the test of moral certainty and is not sufficient to
support a conviction (People v. Navarro, G.R. No.
173790, October 11, 2007; People v. Cervantes,
G.R. No. 181494, March 17,2009).
2. There is, therefore, no equipoise if the
evidence is not evenly balanced. Said rule is not
applicable where the evidence presented is not
equally weighty. The equipoise rule cannot be
invoked where the evidence of the prosecution
is overwhelming (Malana v. People, G.R. No.
173612, March 26, 2008).
Right to be informed of the nature and cause of
accusation
1. In order to inform the accused of the nature
and cause of accusation against him, it is
necessary for the com- plaint or information to
contain those matters required by the statute or
by the Rules of Court, to wit:
(a) To state the name and surname of the
accused or any appellation or nickname by which
he has been or is known and if his name cannot
be ascertained, to describe him under a fictitious
name (Sec. 7, Rule 110, Rules of Court).
(b) To state the name and surname of the
offended party or any appellation or nickname
by which such per- son has been or is known and
if there is no other way of identifying him, to
describe him under a fictitious name (Sec. 12,
Rule 110, Rules of Court); if the offended party is
a juridical person, it is sufficient to state its name,
or any name or designation by which it is known
or by which it may be identified (Sec. 12[c], Rule
110, Rules of Court).
(c) To state with sufficient clarity and in an ordi-
nary and concise language, the acts or omissions
constituting the offense to enable the accused to
know the offense he is being charged with (Sec.
9, Rule 110, Rules of
Court); to state the designation of the offense
given by statute unless there is no such
designation in which case it is sufficient to make
reference to the section or subsection of the
statute punishing the offense (Sec. 8, Rule 110,
Rules of Court).
(d) To state also in ordinary and concise
language, the qualifying and aggravating
circumstances attending the acts imputed to the
accused (Sees. 8, 9, Rule 110, Rules of Court);
(e) To sufficiently allege that the crime was
committed or its essential ingredients occurred
at some place within the jurisdiction of the court
(Sec. 10, Rule 110, Rules of Court);
(f) To allege the date of the commission of the
acts or omissions constituting the offense, which
date may be one as near as possible to the actual
date of the commission of the offense, except
when the precise date is a material ingredient of
the offense (Sec. 11, Rule 110, Rules of Court);
(g) In offenses against property, if the name of
the offended party is unknown, the property
must be described with such particularity to
properly identify the offense charged (Sec. 12[a],
Rule 110, Rules of Court). 2. It is a basic
constitutional right of the accused persons to be
informed of the nature and cause of accusation
against them. It would be a denial of accused-
appellant's basic right to due process if he is
charged with simple rape and consequently
convicted with certain qualifying circumstances
which were not alleged in the information
(People v. Lagarde, G.R. No. 182549, January
20,2009).
3. In Lagarde, the accused-appellant was
charged with rape in an information which reads:
"That on or about the 27th day of December, 2001, in the
municipality of San Miguel, Province of Leyte, Philippines
and within the jurisdiction of this Honorable court, the
above-named accused, with deliberate intent with
lewd designs and by use of force and intimidation, did then
and there willfully, unlawfully and feloniously have carnal
knowledge with [AAA], 11 years old, against her will to her
damage and prejudice.
CONTRARY TO LAW."
The RTC found AAA's testimony credible, noting
that at her age, it is inconceivable for her to
concoct a tale of having been raped. Thus, the
trial court convicted accused-appellant of rape
aggravated by minority of the victim, use of
bladed weapon and force, and uninhabited place
in view of the location of the offense.
The appellate court upheld the trial court's
findings of fact and judgment of conviction. With
regard to the penalty, however, the CA ruled that
the trial court erred when it imposed the death
sentence on the basis of the following
aggravating circumstances: minority, use of
bladed weapon, and uninhabited place. Aside
from the abolition of the death penalty, the CA
held that:
"It is basic in criminal procedure that the purpose of the
information is to inform the accused of the nature and
cause of the accusation against him or the charge against
him so as to enable him to prepare a suitable defense. It
would be a denial of the right of the accused to be
informed of the charges against him, and consequently, a
denial of due process, if he is charged with simple rape and
convicted of its qualified form punishable by death
although the attendant circumstances qualifying the
offense and resulting in capital punishment were not set
forth in the indictment on which he was arraigned."
Accused-appellant also questioned the death
penalty imposed on him, arguing that the
aggravating circumstances of minority, use of a
bladed weapon, and uninhabited place were not
specifically alleged in the information.
The Office of the Solicitor General, on the other
hand, agreed with the judgment of conviction
but not with the death penalty for the same
reasons submitted by accused-appellant.
The Court sustained the Court of Appeals. Said
the Court:
"We agree with the appellate court that the death penalty
is not warranted by the alleged aggravating cir-
cumstances, i.e., victim's minority, use of bladed weapon,
and uninhabited place. First, the death penalty was abol-
ished under Republic Act No. 9346. Second, the use of a
bladed weapon and uninhibited place cannot be appreci-
ated here because these were not specifically alleged in
the information. Section 8, Rule 110 of the Revised Rules
of Criminal Procedure provides:
Sec. 8. Designation of the offense. — The com- plaint or
information shall state the designation of the offense
given by the statute, aver the acts or omissions
constituting the offense, and specify its qualifying and
aggravating circumstances. If there is no designation of the
offense, reference shall be made to the section or
subsection of the statute pun3 ishing it.
It is a basic constitutional right of the accused per- sons to
be informed of the nature and cause of accusation against
them. It would be a denial of accused-appellant's basic
right to due process if he is charged with simple rape and
consequently convicted with certain qualifying
circumstances which were not alleged in the information.
The appellate court correctly ruled that the use of a bladed
weapon and uninhabited place are not circumstances that
would call for the imposition of the death penalty.
The victim's minority does not also qualify the offense to
merit the death penalty. To warrant a death sentence, the
victim must be under seven (7) years of age. The applicable
provisions, therefore, are the following:
Art. 266-A. Rape; when and how committed. —
XXX
Art. 266-B Penalties x x x
The death penalty shall be imposed x x x
5) When the victim is a child below seven (7) rr years old."
4. May the accused be convicted of violation of
Batas Pambansa Big. 22 if the check described in
the information is not the check allegedly issued
and admitted in evidence?
In Dico v. Court of Appeals, 452 SCRA 441, the
accused was charged with three (3) counts of
violation of Batas Pambansa Big. 22 (B.P. Big. 22)
involving among other checks, FEBTC Check No.
364903 for P100,000 as described in the
information. During his appeal to the Supreme
Court following his conviction by the lower
courts, the Court discovered a discrepancy
between the checked marked as exhibit and the
check described in the information.
The information filed by the public prosecutor
described the check as FEBTC Check No. 364903
dated 12 May 1993 in the amount of P100,000
payable to Equitable Banking Corporation.
However, the parties, including the lower courts,
overlooked the fact that the check being
identified in court was different from that
described in the information. The prosecution
marked as its Exhibit "B" FEBTC Check No.
369403 (not FEBTC Check No. 364903), dated 12
May 1993 in the amount of P100,000 payable to
Equitable Banking Corporation.
The issue as to the identity of the check,
though not raised as an error, should
according to the Court, be considered in
favor of the accused. The variance in the
identity of the check nullifies the conviction
of the accused. The identity of the check
enters into the first element of the offense
under Section 1 of B.P. Big. 22 — that a
person draws or issues a check on account or
for value. There being a discrepancy in the
identity of the checks described in the
information and that presented in court,
petitioner's constitutional right to be
informed of the nature of the offense
charged will be violated if his conviction is
upheld. 5. Where the date of the check and
the amount thereof as stated in the
information vary with the exhibits submitted
by the prosecution, the inconsistencies
violate the constitutional right of the
accused to be informed. Without a sufficient
identification of the dishonored check in the
information, the
conviction of the accused should be set aside
(Olivarez v. Court of Appeals, 465 SCRA 465).
6. A violation of the right under discussion is
exemplified by Gutierrez v. Hernandez, 524 SCRA
1, June 8, 2007, where the judge set a criminal
case for arraignment and hearing knowing fully
well that no preliminary investigation had been
conducted and no information had yet been filed
before his court. He justified his actions as
"pursuant to his judicial functions as presiding
judge..." Calling the act as "a clear display of x x
x," the Court declared said act as having clearly
violated the right of the accused to due process,
to be informed of the accusation against him,
and to have a copy of the Information before
arraignment (Gutierrez v. Hernandez, A.M. No.
MTJ-06-1628, June 8, 2007).
7. In yet another case, the petitioners were
charged with violation of Republic Act (R.A.) No.
6539 (Anti-Carnapping Act of 1992) before the
RTC of Malolos City, Bulacan. The information
did not allege that the alleged felonious act of
the petitioners was committed by means of
violence against or intimidation of any person, or
force upon things. In other words, the
information was only for simple carnapping the
penalty for which under Sec. 14 of the law shall
not exceed seventeen years and four months.
After trial, petitioners were sentenced to suffer
the penalty of seventeen (17) years and four (4)
months to thirty (30) years imprisonment, a
penalty in excess of that provided for simple
carnapping. The penalty meted is actually
equivalent to the imprisonment imposable when
the carnapping is committed by means of
violence against or intimidation of any person, or
force upon things;
The petitioners appealed to the CA which
affirmed the RTC decision with modification, as
follows: xxx "MODIFICATION that the accused-
appellants shall suffer the indeterminate prison
term of SEVENTEEN YEARS AND FOUR MONTHS,
as minimum, to THIRTY YEARS, as maximum."
The petitioners moved to reconsider this
decision, but the CA denied their motion. In the
Supreme Court, the petitioners
raised as error, among others, the imposition
upon them of the penalty of seventeen (17)
years and four (4) months to thirty (30) years.
The petitioners also contended that assuming
they were guilty of the crime charged, the
penalty imposed by the lower courts was
erroneous. They argue that the information
failed to allege any circumstance that would
warrant the imposition of a higher penalty.
The Court agreed with the petitioners with
respect to the erroneous penalty imposed. The
Court noted that the information charging the
petitioners with violation of R.A. No. 6539, as
amended, did not allege that the carnapping was
committed by means of violence against, or
intimidation of, any person, or force upon things.
While these circumstances were proven at the
trial, they cannot be appreciated because they
were not alleged in the information. Thus, the
lower courts erred when they took these
circumstances into account in imposing the
penalty which they pegged at seventeen (17)
years and four (4) months to thirty (30) years
imprisonment. In the absence of these
circumstances, the charge against the
petitioners is confined to simple carnapping
whose imposable penalty should have been
imprisonment for not less than fourteen (14)
years and eight (8) months, and not more than
seventeen (17) years and four (4) months
(Andres v. People, G.R. No. 185860, June 5,2009).
8. In implementing the right of the accused to be
informed of the nature and cause of accusation
against him, the Rules of Court specifically
require that the acts or omissions complained of
as constituting the offense, including the
qualifying and aggravating circumstances must
be stated in ordinary and concise language, not
necessarily the language used in the statute, but
in terms sufficient to enable a person of common
understanding to know what offense is being
charged and the attendant qualifying and
aggravating circumstances present, so that the
accused can properly defend himself and the
court can pronounce judgment. To broaden the
scope of the right, the Rules authorize the
quashal, upon motion of the accused, of an
information that fails to allege the acts
constituting the offense (Go v. Bangko Sentral ng
Pilipinas, G.R. No. 178429, October 23,2009).
9. Does conviction for the sale and possession of
methamphetamine hydrochloride (shabu)
violate the accused's constitutional right to be
informed of the nature and causes of the
accusations against him if the fact that was
established and proven during trial was the sale
and possession of ephedrine, a regulated drug?
The Supreme Court answered in the negative,
ruling that the chemical formula of ephedrine is
CIO H15 NO, whereas that of methamphetamine
is CIO H15 N. The only difference between
ephedrine and methamphetamine is the
presence of a single atom of oxygen in the
former. The removal of the oxygen in ephedrine
will produce methamphetamine. With
ephedrine containing fifty percent (50%) of
methamphetamine hydrochloride if the oxygen
content in the former is removed, the nearly 680
grams of ephedrine seized from the appellant
contains about 340 grams of methamphetamine
hydrochloride. The offenses designated in the
Informations are for violations of Sections 15 and
16 of R.A. 6425, which define and penalize the
crimes of illegal sale and possession of regulated
drugs. The allegations in the Informations for the
unauthorized sale and possession of "shabu" or
methamphetamine hydrochloride are
immediately followed by the qualifying phrase
"which is a regulated drug." Thus, it is clear that
the designations and allegations in the
Informations are for the crimes of illegal sale and
illegal possession of regulated drugs. Ephedrine
has been classified as a regulated drug by the
Dangerous Drugs Board in Board Resolution No.
2, Series of 1988. Sections 4 and 5, Rule 120 of
the Rules of Court, can be applied by analogy in
convicting the appellant of the offenses charged,
which are included in the crimes proved. Under
these provisions, an offense charged is
necessarily included in the offense proved when
the essential ingredients of the former constitute
or form part of those constituting the latter. At
any rate, a minor variance between the
information and the evidence does not alter the
nature of the offense, nor does it determine or
qualify the crime or penalty, so that even if a
discrepancy exists, this cannot be pleaded as a
ground for acquittal. In other words, his right to
be informed of the charges against him has not
been violated because where an accused is
charged with a specific crime, he is duly informed
not only of such specific crime, but also of lesser
crimes or offenses included therein. (People of
the Philippines v. Joselito Noque y Gomez, G.R.
No. 175319, January 15,2010).
10. When the counsel of the accused actively
participated in the proceedings this indicates
that the accused was fully aware of the charges
against him, otherwise, his counsel would have
objected and informed the court of the blunder
(People v. Pangilinan, 518 SCRA 358). But the
failure to file a motion to quash the information
cannot amount to a waiver of the constitutional
right to be informed (Burgos v. Sandiganbayan,
413 SCRA 385).
Right to counsel of the accused and of
persons arrested, detained or under
custodial investigation; Republic Act No.
7438 (Bar 1990; 1991; 1998; 2002)
1. The Bill of Rights guarantees the right of
counsel to an accused (Sec. 14[2]), Article III,
1987 Constitution of the Philippines). Under Sec.
1(c) of Rule 115, the accused has the right to "x x
x defend in person and by counsel at every stage
of the proceedings, from arraignment to
promulgation of judgment" (Italics supplied).
"In criminal cases, the right of an accused person
to be assisted by a member of the bar is
immutable. Otherwise, there would be a grave
denial of due process. Thus, even if the judgment
had become final and executory, it may still be
recalled, and the accused afforded the
opportunity to be heard by himself and counsel"
(Hilario v. People, G.R. No. 161070, April
14,2008).
2. One need not however, be an accused to avail
of the right to counsel and the right to counsel
does not commence only during the trial. Every
person under custody of the law enjoys the right.
Republic Act No. 7438 (Sec. 2) provides that "Any
person arrested, detained or under custodial
investigation shall at all times be assisted by
counsel."
Meaning of custodial investigation; extended
meaning
1. Custodial investigation is the stage "where the
police investigation is no longer a general inquiry
into an unsolved crime but has begun to focus on
a particular suspect taken into custody by the
police who carry out a process of interrogation
that lends itself to elicit incriminating
statements" (People v. Sunga, 399 SCRA 624).
(Bar 2006)
Custodial investigation involves any questioning
initiated by law enforcement officers after a
person has been taken into custody or otherwise
deprived of his freedom of action in any
significant way. It is only after the investigation
ceases to be a general inquiry into an unsolved
crime and begins to focus on a particular suspect,
the suspect is taken into custody, and the police
carries out a process of interrogations that lend
itself to eliciting incriminating statements, that
the rule begins to operate (Aquino v. Paiste, G.R.
No. 147782, June 25,2008).
2. Republic Act No. (R.A.) 7438 has however,
redefined the concept of 'custodial investigation'
and has extended this constitutional guarantee
to situations in which an individual has not been
formally arrested but has merely been "invited"
for questioning. Specifically, Sec. 2 of R.A. 7438
provides that "custodial investigation shall
include the practice of issuing an invitation to a
person who is investigated in connection with an
offense he is suspected to have committed,
without prejudice to the liability of the 'inviting'
officer for any violation of law (Sec. 2[ff, R.A.
7438).
Rights of persons under custodial investigation;
custodial investigation report
1. Republic Act No. 7438 provides for the
following requisites for a valid custodial
investigation report:
(a) The report shall be reduced to writing by the
investigating officer;
(b) If the person arrested or detained does not
know how to read and write, it shall be read and
adequately explained to him by his counsel or by
the assisting counsel in the language or dialect
known to such arrested
or detained person. This is to be done before the
report
is signed. If this procedure is not done, the
investigation
report shall be null and void and of no effect
whatsoever
(Sec. 2[c], RA. 7438).
2. The importance of the right to counsel is so
vital that under existing law, "In the absence of
any lawyer, no custodial investigation shall be
conducted and the suspected person can only be
detained by the investigating officer in
accordance with the provisions of Art. 125 of the
Revised Penal Code" (Sec. 3[c]), RA. 7438).
Republic Act No. 7438 also clearly mandates that
a counsel "shall at all times be allowed to confer
privately with the person arrested, detained or
under custodial investigation x x x" (Sec. 2[b], RA.
7438).
The purpose of providing counsel to a person
under custodial investigation is to curb the
uncivilized practice of extracting a confession
(People v. Duefias, Jr., 426 SCRA 666).
3. Even a person under investigation for an
offense has the right to have a "competent and
independent counsel preferably of his own
choice." Included in this right is the right to be
informed of his right to counsel (Sec. 12[1], Art.
Ill, 1987 Constitution of the Philippines; Sec. 2[b],
RA. 7438).
The purpose of providing counsel to a person
under custodial investigation is to curb the
police-state practice of extracting a confession
that leads suspects to make self- incriminating
statements. In order to comply with the
constitutional mandate, there should likewise be
meaningful communication to and
understanding of his rights by the suspect, as
opposed to a routine, peremptory and
meaningless recital thereof (People v. Rapeza,
520 SCRA 596, April 4, 2007).
The right of a person under interrogation "to be
informed" implies a correlative obligation on the
part of the police investigator to explain and
contemplates an effective communication that
results in an understanding of what is conveyed
(People v. Guillermo, 420 SCRA 326).
Failure to inform the suspect of her right to
counsel during custodial investigation attains
significance only if the person under
investigation makes a confession in writing
without aid of counsel and which is then sought
to be admitted against the accused during the
trial. In such case, the tainted confession
obtained in violation is inadmissible in evidence
against the accused (Eugenio v. People 549 SCRA
433).
4. The suspect must also be advised that he has
the option to reject the counsel provided for him
by the police authorities, which fact must
similarly appear in the extrajudicial confession.
Where the participation of a lawyer in the
proceedings was confined to the notarization of
the suspect's confession, the same is not
considered, in legal contemplation, the kind of
legal assistance that should be accorded to the
suspect (People v. Rapeza, 520 SCRA 596).
5. Aside from the rule that the counsel must be
competent and independent and preferably the
choice of the person arrested, detained or under
custodial investigation, the assisting counsel
provided by the investigating officer is "any
lawyer, except those directly affected by the
case, those charged with conducting preliminary
investigation or those charged with the
prosecution of crimes" (Sec. 3, RA. 7438).
6. Jurisprudence supports the view that a mere
inquiry on the commission of a crime by law
enforcement authorities does not automatically
trigger the application of the right to counsel.
"x x x It is only after the investigation ceased to
be a general inquiry into an unsolved crime and
begins to focus on a particular suspect, the
suspect is taken into custody, and the police
carries out a process of interrogations that lend
itself to eliciting incriminating statements, that
the Miranda Rule begins to operate, though R.A.
No. 7438 has extended this constitutional
guarantee to situations in which an individual
has not been formally arrested but has merely
been "invited" for questioning" (Aquino v. Paiste,
555 SCRA 255, June 25, 2008). The moment a
police officer tries to elicit admissions or
confessions or even plain information from a
suspect, the
latter should, at this juncture, be assisted by
counsel, unless he waives this right in writing and
in the presence of counsel (People v. Rapeza, 520
SCRA 596).
7. A police line-up is not part of the custodial
inquest since the accused at that stage is not yet
being investigated. In the line-up, the right to
counsel does not yet attach (People v. Tolentino,
423 SCRA 448).
8. It has also been held that a barangay
chairman is not deemed a law enforcement
officer for purposes of applying Section 12(1) and
(3) of Art. Ill of the Philippine Constitution. Thus,
a suspect's uncounselled statement before the
barangay chairman is admissible (People v. Ulit,
423 SCRA 374).
9. The right to counsel applies in certain pre-trial
proceedings that can be deemed "critical stages"
in the criminal process like in a preliminary
investigation. This investigation can be no
different from the in-custody interrogations by
the police, for a suspect who takes part in a
preliminary investigation will be subjected to no
less than the State's processes, oftentimes
intimidating and relentless, of pursuing those
who might be liable for criminal prosecution
(People v. Sunga, 399 SCRA 624).
Right to choose a counsel is not plenary; right may
be waived
1. There is no denial of the right to counsel where
a counsel de oficio is appointed during the
absence of the accused's counsel de parte, or in
this case the regular counsel de oficio, pursuant
to the court's desire to finish the case as early as
practicable under the continuous trial system.
The choice of counsel by the accused in a
criminal prosecution is not a plenary one. If the
chosen counsel deliberately makes himself
scarce, the court is not precluded from
appointing a de oficio counsel, which it considers
competent and independent, to enable the trial
to proceed until the counsel of choice enters his
appearance. Otherwise, the pace of a criminal
prosecution will be entirely dictated by the
accused, to the detriment of the eventual
resolution of the case (People v. Siongco, G.R.
No. 186472, July 5,2010).
2. The right to counsel may be waived but to
insure that the waiver is voluntary and
intelligent, the waiver must be in writing and in
the presence of the counsel of the accused
(People v. Del Castillo, 439 SCRA 601). The right
to a competent and independent counsel is one
of the rights of the accused guaranteed under
Sec. 12(1) of Art. Ill of the Philippine
Constitution. As the proviso declares: " xx x These
rights cannot be waived except in writing and in
the presence of counsel.3*
Competent and independent counsel
1. The meaning of "competent counsel" and its
standards were explained in People v. Deniega,
251 SCRA 626 as follows:
"The lawyer called to be present during such
investigations should be as far as reasonably
possible, the choice of the individual undergoing
questioning. If the lawyer were one furnished in
the accused's behalf, it is important that he
should be competent and independent, i.e., that
he is willing to fully safeguard the constitutional
rights of the accused, as distinguished from one
who would be merely giving a routine,
peremptory and meaningless recital of the
individual's constitutional rights. In People v.
Basay, th[e] Court stressed that an accused's
right to be informed of the right to remain silent
and to counsel "contemplates the transmission
of meaningful information rather than just the
ceremonial and perfunctory recitation of an
abstract constitutional principle."
Ideally therefore, a lawyer engaged for an
individual facing custodial investigation (if the
latter could not afford one) should be engaged
by the accused (himself), or by the latter's
relative or person authorized by him to engage
an attorney or by the court, upon proper petition
of the accused or person authorized by the
accused to file such petition." Lawyers engaged
by the police, whatever testimonials are given as
proof of their probity and supposed
independence, are generally suspect, as in many
areas, the relationship between lawyers and law
enforcement authorities can be symbiotic.
xxx The competent or independent lawyer so
engaged should be present from the beginning
to end, i.e., at all stages of the interview,
counseling or advising caution reasonably at
every turn of the investigation, and stopping the
interrogation once in a while either to give
advice to the accused that he may either
continue, choose to remain silent or terminate
the interview CPeople v. Rapeza, G.R. No.
169431, April 3,2007).
2. Lumanog, et al. v. People, G.R. No. 182555,
September 7, 2010 states: "The modifier
competent and independent in the 1987
Constitution is not an empty rhetoric. It stresses
the need to accord the accused, under the
uniquely stressful conditions of a custodial
investigation, an informed judgment on the
choices explained to him by a diligent and
capable lawyer (People v. Suela, 373 SCRA 163;
People v. Deniega, 251 SCRA 626, People v.
Santos, 283 SCRA 443). An effective and vigilant
counsel necessarily and logically requires that
the lawyer be present and able to advise and
assist his client from the time the confessant
answers the first question asked by the
investigating officer until the signing of the
extrajudicial confession. Moreover, the lawyer
should ascertain that the confession is made
voluntarily and that the person under
investigation fully understands the nature and
the consequence of his extrajudicial confession
in relation to his constitutional rights. A contrary
rule would undoubtedly be antagonistic to the
constitutional rights to remain silent, to counsel
and to be presumed innocent" (People v.
Labatan, 320 SCRA 140).
Citing previous decisions, Lumanog further
declares: "The right to counsel has been written
into our Constitution in order to prevent the use
of duress and other undue influence in extracting
confessions from a suspect in a crime. The
lawyer's role cannot be reduced to being that of
a mere witness to the signing of a pre-prepared
confession, even if it indicated compliance with
the constitutional rights of the accused. The
accused is entitled to effective, vigilant and
independent
counsel. Where the prosecution failed to
discharge the State's burden of proving with
clear and convincing evidence that the accused
had enjoyed effective and vigilant counsel before
he extrajudicially admitted his guilt, the
extrajudicial confession cannot be given any
probative value (People v. Peralta, 426 SCRA 472,
citing People v. Binamird, 277 SCRA 232; People
v. Ordono, 334 SCRA 673; People v. Rodriguez,
341 SCRA 645, 653; People v. Rayos, 351 SCRA
336, 344; and People v. Patungan, 354 SCRA 413;
Lumanog, et al. v. People, G.R. No. 182555,
September 7,2010).
3. An extrajudicial confession executed by a
suspect assisted by a counsel who failed to meet
the exacting standards of an independent and
competent counsel is deemed an un- counseled
confession and, therefore, inadmissible in
evidence (People v. Tomaquin, 435 SCRA 23).
4. In the case of People v. Bermas, 306 SCRA 135
three PAO lawyers were assigned to an accused
who was charged with raping his own daughter.
The records show that the first lawyer without
sufficient reason did not cross-examine the
private complainant and thus, effectively waived
the right to cross-examination. He subsequently
asked to be relieved of his duties as counsel. The
second lawyer who was appointed by the court,
missed several dates and could no longer be
located. A third reluctant lawyer was appointed
by the court and later ceased to appear for the
accused.
This Court held that:
"The right to counsel must be more than just the
presence of a lawyer in the courtroom or the
mere propounding of standard questions and
objections. The right to counsel means that the
accused is amply accorded legal assistance
extended by a counsel who commits himself to
the cause for the defense and acts accordingly.
The right assumes an active involvement by the
lawyer in the proceedings, particularly at the trial
of the case, his bearing constantly in mind of the
basic rights of the accused, his being well-versed
on the case and his knowing
the fundamental procedures, essential laws and
existing jurisprudence. The right of an accused to
counsel finds substance in the performance by
the lawyer of his sworn duty of fidelity to his
client. Tersely put, it means an efficient and truly
decisive legal assistance and not a simple
perfunctory representation" (People v. Nadera
324 SCRA 490).
5. Where the participation of the lawyer in the
proceedings was confined to the notarization of
the suspect's confession, the same is not
considered, in legal contemplation, the kind of
legal assistance that should be accorded to the
suspect (People v. Rapeza, 520 SCRA 596).
6. The right to counsel involves more than the
mere presence of a lawyer. It means an efficient
and decisive legal assistance and not a simple
perfunctory representation (People v. Sunga,
399 SCRA 624).
Right to counsel in administrative cases
1. There is no law, jurisprudence or rule which
mandates that an employee should be assisted
by counsel in an administrative case. On the
contrary, jurisprudence is in unison in saying that
assistance of counsel is not indispensable in
administrative proceedings (Perez v. People, G.R.
No. 164763, February 12,2008).
2. While investigations conducted by an
administrative body may at times be akin to a
criminal proceeding, the fact remains that under
existing laws, a party in an administrative inquiry
may or may not be assisted by counsel,
irrespective of the nature of the charges and of
respondent's capacity to represent himself, and
no duty rests on such body to furnish the person
being investigated with counsel. Thus, the right
to counsel is not imperative in administrative
investigations because such inquiries are
conducted merely to determine whether there
are facts that merit disciplinary measures against
erring public officers and employees, with the
purpose of maintaining the dignity of
government service (Perez v. People, G.R. No.
164763, February 12,2008; See also Lastimoso v.
Asayo, 517 SCRA 522 and Ampong v. Civil Service
Commission, CSC-Regional Office No. 11,563
SCRA293).
Extrajudicial confessions; rights of persons
under custodial investigation (Bar 2006)
1. A confession is admissible in evidence if it is
satisfactorily shown to have been obtained
within the limits imposed by the 1987
Constitution (People v. Rapeza, 520 SCRA 596,
April 3,2007).
2. Section 12, Art. Ill thereof states in part, to wit:
"SEC. 12. (1) Any person under investigation for
the commission of an offense shall have the right
to be informed of his right to remain silent and
to have competent and independent counsel
preferably of his own choice. If the person
cannot afford the services of counsel, he must be
provided with one. These rights cannot be
waived except in writing and in the presence of
counsel.
"(2) No torture, force, violence, threat,
intimidation or any other means which vitiate
the free will shall be used against him. Secret
detention places, solitary, incommunicado, or other
similar forms of detention are prohibited."
(3) Any confession or admission obtained in
violation of this or Section 17 hereof shall be
inadmissible in evidence against him."
"(4) The law shall provide for penal and civil
sanctions for violation of this section as well as
compensation for the rehabilitation of victims of
tortures or similar practices, and their families."
3. The extrajudicial confession must also be
tested for voluntariness, that is, if it was given
freely by the confessant without any form of
coercion or inducement (People v. Rapeza, 520
SCRA 596, April 3,2007).
The voluntariness of a confession may be
inferred from its language such that if, upon its
face, the confession exhibits no suspicious
circumstances tending to cast doubt upon its
integrity, it being replete with details — which
could only
be supplied by the accused — reflecting
spontaneity and coherence, it may be
considered voluntary. A confession is not
voluntary if the alleged confession contains facts
and details which appear to have been supplied
by the investigators themselves (People v.
Rapeza, 520 SCRA 596, April 4,2007).
4. The practice of inducing suspects to sign
receipts for property allegedly confiscated from
their possession is unusual and violative of the
constitutional right to remain silent as when the
accused was made to acknowledge that the six
(6) small plastic bags of dried marijuana leaves
were confiscated from him by signing a receipt
and to sign a receipt for the P20.00 bill as
purchase price of the dried marijuana leaves he
sold to a police officer. Obviously, in a situation
like this, the accused was the victim of a clever
ruse to make him sign these alleged receipts
which in effect are extra-judicial confessions of
the commission of the offense. Indeed it is
unusual for appellant to be made to sign receipts
for what were taken from him. It is the police
officers who confiscated the same who should
have signed such receipts. No doubt this is a
violation of the constitutional right of the
accused to remain silent whereby he was made
to admit the commission of the offense without
informing him of his right. Such a confession
obtained in violation of the Constitution is
inadmissible in evidence. The Inventory Receipt
signed by appellant is thus not only inadmissible
for being violative of appellant's custodial right
to remain silent; it is also an indicium of the
irregularity in the manner by which the raiding
team conducted the search of appellant's
residence (People v. Del Castillo, 439 SCRA 601;
People vs. Casimiro, G.R. No. 146277, June 20,
2002). (Bar 2009)
5. Republic Act No. 7438 (Sec. 2[d]) provides for
the following requisites for the validity of an
extrajudicial confession made by a person
arrested, detained or under custodial
investigation: (a) It shall be in writing and signed
by the person arrested, detained or under
custodial investigation;
(b) It must be signed in the presence of his
counsel or in the latter's absence, upon a valid
waiver;
(c) In the event of a valid waiver, it must be
signed in the presence of any of the parents,
elder brothers and sisters, his spouse, the
municipal mayor, the municipal judge, district
school supervisor, or priest or minister of the
gospel as chosen by him.
If there is any waiver of the provisions of Art. 125
of the Revised Penal Code, the waiver must:
(a) be in writing; and
(b) signed by the person arrested, detained or
under custodial investigation; and
(c) such person must sign the waiver in the
presence of his counsel.
If the above is not complied with, "the waiver
shall be null and void and of no effect" (Sec. 2[e],
RA. 7438).
Thus, even if the police officers claimed that
upon arresting the accused, they informed him
of his constitutional rights to remain silent, that
any information he would give could be used
against him, and that he had the right to a
competent and independent counsel,
preferably, of his own choice, and if he cannot
afford the services of counsel he will be provided
with one, any waiver of his rights could not have
been valid since these rights can only be waived
in writing and with the assistance of counsel. The
constitutional requirement obviously had not
been observed. Settled is the rule that the
moment a police officer tries to elicit admissions
or confessions or even plain information from a
suspect, the latter should, at that juncture, be
assisted by counsel, unless he waives this right in
writing and in the presence of counsel. The
purpose of providing counsel to a person under
custodial investigation is to curb the police-state
practice of extracting a confession that leads
appellant to make self-incriminating statements
(Lumanog, et al. v. People, G.R. No. 182555,
September 7, 2010).
6. Admissions under custodial investigation
made without the assistance of counsel are
barred as evidence. A suspect's confession,
whether verbal or non-verbal, when taken
without the assistance of counsel without a valid
waiver of such assistance regardless of the
absence of such coercion, the fact that it had
been voluntarily given, is inadmissible in
evidence, even if such confession were gospel
truth (People v. Ador, 432 SCRA 1).
7. Summarizing jurisprudential and statutory
pronouncements, the Court has consistently
held that an extrajudicial confession, to be
admissible, must conform to the following
requisites: 1) the confession must be voluntary;
2) the confession must be made with the
assistance of a competent and independent
counsel, preferably of the confessant's choice; 3)
the confession must be express; and 4) the
confession must be in writing (People v. Bagnate,
428 SCRA 633; People v. Rapeza, G.R. No.
169431, April 3, 2007; People v. Tuniaco, G.R. No.
185710, January 19,2010).
8. Assuming that all constitutional and statutory
safeguards have been complied with, "An
extrajudicial confession made by an accused,
shall not be sufficient ground for conviction,
unless corroborated by evidence of corpus
delicti" (Sec. 3, Rule 133, Rules of Court).
9. While the Supreme Court has consistently
stricken out the extrajudicial confession
extracted in violation of constitutionally
enshrined rights and declared it inadmissible in
evidence, the accused will not be entitled to an
acquittal if his conviction was not based on the
evidence obtained during such custodial
investigation and if even without the
extrajudicial confession of the accused, the
testimonial and documentary evidence on
record could establish his guilt beyond
reasonable doubt (People v. Lumanog, G.R. No.
182555, September 7, 2010).
10. The accused's confession to a ubantay
bayan" is inadmissible in evidence if the same
was done without the assistance of his lawyer
and without waiver of his right to counsel
(People v. Lauga, G.R. No. 186228, March 15,
2010). The Supreme Court held in this case that
barangay-based volunteer organizations in the
nature of watch groups, as in the case of the
"bantay bayan," are recognized by the
local government unit to perform functions
relating to the preservation of peace and order
at the barangay level and any inquiry he makes
has the color of a state-related function and
objective insofar as the entitlement of a suspect
to his constitutional rights provided for under
Section 12, Article III, of the Constitution,
otherwise known as the Miranda Rights, is
concerned. Therefore, the extrajudicial
confession of appellant taken without counsel
was inadmissible in evidence (People v. Lauga,
G.R. No. 186228, March 15, 2010).
Right to speedy trial; speedy disposition of
cases (Bar 1996; 2002; 2007)
1. The right to a speedy trial is explicitly
guaranteed by Section 14(2) of Article III of the
Constitution. Thus "xxx In criminal cases, the
accused shall xxx enjoy the right xxx to have a
speedy, impartial and public trial x x x" (See
People v. Anonas, G.R. No. 156847, January
21,2007).
The same right is echoed and reinforced in Sec.
1(h) of Rule 115 of the Rules of Court declaring
that one of the rights of an accused at trial is "To
have a speedy, impartial and public trial."
Nowhere is the guarantee of the right to speedy
disposition of cases more significant and
meaningful than in criminal cases where not only
the fortune, but the life and liberty of the
accused as well, are at stake (Cabarles v.
Maceda, 516 SCRA 303).
On the other hand, the right to a speedy
disposition of cases is provided for under Section
16, Article III, of the Constitution which provides
that, "all persons shall have the right to a speedy
disposition of their cases before all judicial, quasi-
judicial, or administrative bodies
2. This right to a speedy trial has consistently
been defined by the Court substantially "as one
free from vexatious, capricious and oppressive
delays, its purpose being to assure that an
innocent person may be free from the anxiety
and expense of a court litigation or, if otherwise,
of having his guilt determined within the
shortest possible time compatible with the
presentation and consideration of whatsoever
legitimate defense he may interpose."
It bears stressing that although the Constitution
guarantees the right to the speedy disposition of
cases, it is a flexible concept. Due regard must be
given to the facts and circumstances surrounding
each case. The right to a speedy disposition of a
case, like the right to speedy trial, is deemed
violated only when the proceedings are attended
by vexatious, capricious, and oppressive delays,
or when unjustified postponements of the trial
are asked for and secured, or when without
cause or justifiable motive, a long period of time
is allowed to elapse without the party having his
case tried. Just like the constitutional guarantee
of "speedy trial," "speedy disposition of cases" is
a flexible concept. It is consistent with delays and
depends upon the circumstances. What the
Constitution prohibits are unreasonable,
arbitrary and oppressive delays which render
rights nugatory (Ombudsman v. Jurado, G.R. No.
154155, August 6,2008; Lumanog, et al. v.
People, G.R. No. 182555, September 7,2010).
The right does not preclude justifiable
postponements and delay when warranted by
the situation. In the application of the
constitutional guarantee of the right, particular
regard must also be taken of the facts and
circumstances peculiar to each case (Domondon
v. Sandiganbayan, 476 SCRA 496).
Although a speedy determination of an action or
proceeding implies a speedy trial, it should be
borne in mind that speed is not the chief
objective of a trial. Careful and deliberate
consideration for the administration of justice is
more important than a race to end the trial. A
genuine respect for the rights of all parties,
thoughtful consideration before ruling on
important questions, and a zealous regard for
the just administration of law are some of the
qualities of a good trial judge, which are more
important than a reputation for hasty disposal of
cases (Jamsani-Rodriguez v. Ong, A.M. No. 08-
19-SB-J, April 12, 2011 citing State Prosecutors v.
Muro, 251 SCRA 111).
3. Under the Constitution, the right to a "speedy
disposition of cases" is not limited to the accused
in criminal proceedings but extends to all parties
in all cases, including civil and administrative
cases, and in all proceedings, including judicial
and quasi-judicial hearings. Hence, under the
Constitution, any party to a case may demand
expeditious action from all officials who are
tasked with the administration of justice
(Ombudsman v. Jurado, G.R. No. 154155, August
6,2008).
4. The essence of the judicial function is that
justice shall be impartially administered without
unnecessary delay (Re: Complaint Against Justice
Elvi John S. Asuncion of the Court of Appeals, 518
SCRA 512).
When right to speedy disposition of cases is
violated
1. It has been held that the right to speedy
disposition of cases is considered violated only
when the proceedings are attended by
vexatious, capricious, and oppressive delays. The
concept of speedy disposition of cases is relative
or flexible (Rodriguez v. Sandiganbayan, 424
SCRA 236; Dimayacyac v. Court of Appeals, 430
SCRA 121; Mendoza-Ong v. Sandiganbayan, 440
SCRA 423; Cabarles v. Maceda, 516 SCRA 303;
Tilendo v. Ombudsman, 533 SCRA 331,
September 13, 2007; Gaas v. Mitmug, G.R. No.
165776, April 30, 2008; Tan v. People, G.R. No.
173637, April 21,2009).
2. Although courts have reiterated time and time
again that in all criminal prosecutions, the
accused shall enjoy his right to a speedy trial, the
rule finds itself violated in some instances.
People v. Anonas, G.R. No. 156847, January
31,2007, for example is one case which aptly
demonstrates a clear disregard of the right.
Here, the respondent, a police officer assigned to
the Western Police District, was apprehended by
his colleagues during a raid in Sta. Cruz, Manila.
The apprehending police officers claimed that he
and four other persons were sniffing
methamphetamine hydrochloride, more
popularly known as shabu, a regulated drug, and
that he was in possession of an unlicensed .38.
caliber revolver.
Two separate informations were filed against the
respondent, one for illegal possession of
methamphetamine hydrochloride, and another
for illegal possession of firearm. Respondent
filed with the trial court a motion for
reinvestigation on grounds that he was
apprehended without a warrant of arrest and
that no preliminary investigation was conducted.
The trial court granted the motion and a
prosecutor was designated to conduct the
reinvestigation who was later appointed judge of
the RTC in Iloilo. Apparently, he did not inform
the prosecutor who took his place about the
pending reinvestigation. Meanwhile, respondent
has remained in detention.
Almost five years after, the respondent filed with
the trial court a motion to dismiss the
informations, contending that the delay in the
reinvestigation violated his right to due process.
The trial court heard the motion to dismiss. It
turned out that the prosecutor who took over
the case was not aware of the pending
reinvestigation. The trial court then directed him
to terminate the reinvestigation within thirty
(30) days. Within the period granted him, the
prosecutor manifested before the trial court that
the reinvestigation had been terminated and
that evidence exist to sustain the allegations in
the informations against respondent. The trial
court then issued an Order denying respondent's
motion to dismiss the informations. His motion
for reconsideration was likewise denied.
Respondent then filed a petition for certiorari
with the Court of Appeals, contending that the
trial court committed grave abuse of discretion
amounting to lack or excess of jurisdiction in
denying his motion to dismiss both informations.
The Court of Appeals granted the petition and
set aside the Order of the trial court and
dismissed the criminal charges against
respondent.
The Court of Appeals ruled that having been
made to wait for the resolution of his motion for
reinvestigation for almost five years while being
detained, the right of respondent to due process
was violated. The Court of Appeals then ordered
that respondent be released from custody. The
Government, represented by the Solicitor
General, moved for reconsideration, but the
Court of Appeals denied the same.
Citing previous cases, the Supreme Court
reiterated the rule that accused persons are
guaranteed a speedy trial by the Bill of Rights and
that such right is denied when an accused
person, through the vacillation and
procrastination of prosecuting officers, is forced
to wait many months for trial. It called on all
courts to be the last to set an example of delay
and oppression in the administration of justice
and it is the moral and legal obligation of the
courts to see to it that the criminal proceedings
against the accused come to an end and that
they be immediately discharged from the
custody of the law.
"The preliminary investigation of the respondent
for the offenses charged took more than four
years. He was apprehended for the offenses
charged on November 19, 1996. Having been
arrested without a warrant of arrest and not
having been afforded a formal investigation, he
prayed for reinvestigation of the cases. The trial
court, in an Order dated January 28,1997
ordered a reinvestigation which was terminated
only on February 16, 2001. In fact, even the
Solicitor General admitted it took some time for
the City Prosecutor to terminate and resolve the
reinvestigation.
There can be no question that respondent was
prejudiced by the delay, having to be confined
for more than four oppressive years for failure of
the investigating prosecutors to comply with the
law on preliminary investigation. As aptly held by
the Court of Appeals, respondent's right to due
process had been violated."
3. In Angcangco, Jr. v. Ombudsman, 268 SCRA.
301, the Court found the delay of six years by the
Ombudsman in resolving the criminal complaints
to be violative of the constitutionally guaranteed
right to a speedy disposition of cases (Cited in
People v. Anonas, supra).
4. In Cervantes v. Sandiganbayan, 307 SCRA 149,
it was held that the Sandiganbayan gravely
abused its discretion in not quashing the
Information filed six years after the initiatory
complaint, thereby depriving petitioner of his
right to a speedy disposition of the case (People
v. Anonas, supra).
5. Similarly, in Roque v. Office of the
Ombudsman, 307 SCRA 104, the Court ruled that
the delay of almost six years disregarded the
Ombudsman's duty to act promptly on
complaints before him. The inordinate delay in
terminating the preliminary investigation of an
accused violates his constitutional right to due
process. Thus, in Roque v. Sandiganbayan, 307
SCRA 104, the Court, restating the
pronouncement in Ta- tad v. Sandiganbayan,
159 SCRA 70, held:
We find the long delay in the termination of the
preliminary investigation by the Tanodbayan in
the instant case to be violative of the
constitutional right of the accused to due
process. Substantial adherence to the
requirements of the law governing the conduct
of preliminary investigation, including
substantial compliance with the time limitation
prescribed by the law for the resolution of the
case by the prosecutor, is part of the procedural
due process constitutionally guaranteed by the
fundamental law. Not only under the broad umbrella
of due process clause, but under the constitutional
guaranty of "speedy disposition" of cases as embodied in
Section 16 of the Bill of Rights (both in the 1973 and 1987
Constitutions), the inordinate delay is violative of the
petitioner's constitutional rights. A delay of close to three
(3) years cannot be deemed reasonable or justifiable in the
light of the circumstances obtaining in the case at bar. We
are not impressed by the attempt of the
Sandiganbayan to sanitize the long delay by
indulging in the speculative assumption that
"delay may be due to a painstaking and grueling
scrutiny by the Tanodbayan as to whether the
evidence presented during the preliminary
investigation merited prosecution of a former
high-ranking government official." In the first
place, such a statement suggests a double
standard of treatment, which must be
emphatically rejected. Secondly, three out of the
five charges against the petitioner were for his
alleged failure to file his sworn statement of
assets and liabilities required by Republic Act
3019, which certainly did not involve
complicated legal and factual issues
necessitating such "painstaking and grueling
scrutiny as would justify a delay of almost three
years in terminating the preliminary
investigation. The other two charges relating to
alleged bribery and alleged giving [of]
unwarranted benefits to a relative, while
presenting more substantial legal and factual
issues, certainly do not warrant or justify the
period of three years, which it took the
Tanodbayan to resolve the case (Emphasis supplied;
People v. Anonas, supra).
6. A judge's illness should not be an excuse for
his failure to render the corresponding decision
or resolution within the prescribed period. The
demands of public service cannot abide by his
illness. In case of poor health, the judge
concerned needs only to ask the Supreme Court
for an extension of time to decide cases, as soon
as it becomes clear to him that there would be
delay in his disposition of cases (Balajedeong v.
Del Rosario, 524 SCRA 13).
7. Also, the designation of a judge to preside
over another sala is an insufficient reason to
justify delay in deciding a case (Bernaldez v.
Avelino, 527 SCRA 11). A heavy work load due to
additional work, as acting presiding judge in
other courts, is not sufficient justification for the
delay because judges are allowed, upon motion
or letter-request, extensions of the reglementary
period in deciding cases (Re: Report on the
Judicial and Financial Audit Conducted in MTCs of
Bayom- bong & Solano & MCTC, Aritao-Sta. Fe,
Nueva Vizcaya, 535 SCRA 224).
8. The absence of a branch clerk of court should
not affect the prompt disposition of cases. It is
the duty of the judge to recommend to the
Supreme Court the immediate appointment of a
branch clerk of court (Office of the Court
Administrator v. Laron, 527 SCRA 45). Even the
non-submission of the transcript of stenographic
notes by stenographers would not relieve judges
of their duty to render a decision within the
required period as judges are directed to take
down notes of salient portions of the hearing and
proceed in the preparation of decisions without
waiting for the transcribed stenographic notes
(Office of the Court Administrator v. Janolo, Jr.
534 SCRA 262). The incompleteness of the
transcript of stenographic notes is not a ground
for delay (Re: Report on the Judicial Audit
Conducted in the Regional Trial Court, Branch 4,
Dolores, Eastern Samar, 536 SCRA 313).
9. The defects in a motion are not reasons for a
judge not to act on the same. If a judge believes
that the motions pending before him were
defective, he could have simply acted on the said
motions and indicated the supposed defects
instead of just leaving them unresolved (Heirs of
Simeon Piedad v. Estrera, A.M. No. RTJ-09-2170,
December 16, 2009).
Purpose of time limits set by law or the rules;
principle of speedy trial is a relative term
As a general principle, rules prescribing the time
within which certain acts must be done, or
certain proceedings taken, are considered
absolutely indispensable to the prevention of
needless delays and the orderly and speedy
discharge of judicial business (Balajedeong v. Del
Rosario, 524 SCRA 13; Galanza v. Trocino, 529
SCRA 200).
As a rule, failure to resolve cases within the
period fixed by law constitutes a serious
violation of the Constitution (Petallar v. Pullos,
419 SCRA 434). It is not excusable and
constitutes gross inefficiency that warrants the
imposition of administrative sanctions (Office of
the Court Administrator v. Legaspi, Jr., 512 SCRA
570; Re: Complaint Against Justice Elvi John S.
Asuncion of the Court of Appeals, 518 SCRA 512;
Pacquing v. Gobarde, 521 SCRA 464; Office of the
Court Administrator v. Go, 534 SCRA 156).
An unwarranted slowdown in the disposition of
cases erodes the faith and confidence of the
people in the judiciary, lowers its standards, and
brings it into disrepute (Biggel v. Pamintuan, 559
SCRA 344).
Various decisions like Olbes v. Buemio, G.R. No.
173319, December 4, 2009, have held that the
principle of "speedy trial" is a relative term and
necessarily involves a degree of flexibility. Thus,
in spite of the prescribed time limits,
jurisprudence continues to adopt the view that
the concept of "speedy trial" is a relative term
and must necessarily be a flexible concept and
that while justice is administered with dispatch,
the essential ingredient is orderly, expeditious
and not mere speed. The Court explained that it
cannot be definitely said how long is too long in
a system where justice is supposed to be swift,
but deliberate. It is consistent with delays and
depends upon circumstances. It secures rights to
the accused, but it does not preclude the rights
of public justice hence, a balancing test of
applying societal interests and the rights of the
accused necessarily compels the court to
approach speedy trial cases on an ad hoc basis.
The time limits set by the Speedy Trial Act of
1998 do not preclude justifiable postponements
and delays when so warranted by the situation
(Olbes v. Buemio, G.R. No.173319, December 4,
2009).
The Supreme Court in Jacob v. Sandiganbayan,
G.R. No. 162206, November 17, 2010,
emphasized that "the Revised Rules on Criminal
Procedure also include provisions that ensure
the protection of such right" like Section 1(h) of
Rule 115 which provides that the accused shall
have the right to a "speedy, impartial, and public
trial." Also, Sec. 2 of Rule 119 further provides
that "x x x Trial, once commenced, shall continue
from day to day as far as practicable until
terminated. It may be postponed for a
reasonable period of time for good cause."
Citing previous decisions, the Court however,
cautioned that the concept of speedy trial "is a
relative term and necessarily a flexible concept.
In determining whether the right of the accused
to a speedy trial was violated, the delay should
be considered, in view of the entirety of the
proceedings. Indeed, mere mathematical
reckoning of the time involved would not suffice
as the realities of everyday life must be regarded
in judicial proceedings which, after all, do not
exist in a vacuum."
In Tan v. People, G.R. No. 173637, April 21, 2009,
no objection was interposed by his defense
counsel when at the preliminary hearing the
prosecution manifested that the evidence to be
presented would be only for the other two cases
against the petitioner and not on the case where
he claims a violation of his right to speedy trial.
His failure to object to the prosecution's
manifestation that the cases be tried separately
is fatal to his case. In fact, petitioner's
acquiescence is evident from the transcript of
stenographic notes during the initial
presentation of the People's evidence in the
other cases.
In the cases involving petitioner, the length of
delay, complexity of the issues and his failure to
invoke said right to speedy trial at the
appropriate time tolled the death knell on his
claim to the constitutional guarantee. More
importantly, in failing to interpose a timely
objection to the prosecution's manifestation
during the preliminary hearings that the cases be
tried separately, one after the other, petitioner
was deemed to have acquiesced and waived his
objection thereto. The Court hence, found that
there is clearly insufficient ground to conclude
that the prosecution is guilty of violating
petitioner's right to speedy trial (Tan v. People,
G.R. No. 173637, April 21, 2009).
Remedy for a violation of the right to speedy trial
1. The trial court may dismiss a criminal case on
a motion nolle prosequi if the accused is not
brought to trial within the prescribed time and is
deprived of his right to a speedy trial or
disposition of the case on account of
unreasonable or capricious delay caused by the
prosecution (Corpuz v. Sandi- ganbayan, 442
SCRA 294).
2. A dismissal based on a violation of the right to
speedy trial is equivalent to an acquittal and
double jeopardy may attach even if the dismissal
is with the consent of the accused. It would bar
further prosecution of the accused for the same
offense (Condrada v. People, 398 SCRA 482;
Esmena v. Pogoy, G.R. No. 54110, February 20,
1981). To exercise the right to speedy trial, the
accused should ask for the trial of the case first
instead of moving for its dismissal outrightly. If
the prosecution cannot produce its witnesses or
evidence and its motion for postponement is
denied, then the accused should move for the
dismissal of the case, such dismissal amounting
to an acquittal (People v. Cacdac, L-45650, March
29,1982).
Factors for granting continuance
1. The factors, among others, which a justice or
judge shall consider in determining whether to
grant a continuance are as follows: (a) Whether
the failure to grant such a continuance in the
proceeding would be likely to make a
continuation of such proceeding impossible, or
result in a miscarriage of justice.
(b) Whether the case taken as a whole is so
novel, so unusual and so complex, due to the
number of accused or the nature of the
prosecution or otherwise, that it is unreasonable
to expect adequate preparation within the
periods of time established by this Act (Sec. 11,
Speedy Trial Act).
2. No continuance under letter "f' of Section 10
of the Act shall be granted because of general
congestion of the court's calendar, or lack of
diligent preparation or failure to obtain available
witnesses on the part of the public prosecutor
(Sec. 11, Speedy Trial Act).
Guidelines to determine violation of the right to
speedy trial and speedy disposition of cases;
balancing test
1. In determining whether or not the right to the
speedy disposition of cases has been violated,
the Court has laid down the following guidelines:
(1) the length of the delay; (2) the reasons for
such delay; (3) the assertion or failure to assert
such right by the accused; and (4) the prejudice
caused by the delay (Ombudsman v. Jurado, G.R.
No. 154155, August 6, 2008; Tan v. People, G.R.
No. 173637, April 21,2009; Olbes v. Buemio, G.R.
No.173319, December 4, 2009).
2. The above guidelines are confirmations of the
guidelines declared in the famous American case
of Barker v. Wingo, 407 U.S. 514 (1972), a case in
which the United States Supreme Court
concededly made the most comprehensive
discussion of the right to speedy trial. Here, the
petitioner and his alleged accomplice, were
accused and tried with the murder of an elderly
couple in a county in Kentucky. Since the
prosecution believed that it had a stronger case
against the petitioner's co-accused, it presented
evidence against the latter first who was tried
ahead of the petitioner. It was the hope of the
prosecution that after his conviction he would be
utilized as a witness against the petitioner. The
co-accused was tried several times because of
hung juries and a series of appeals. When he was
convicted and it was time to hold the trial for the
petitioner, the chief investigating officer became
ill and could not testify. In all, the petitioner had
waited more than five years for his trial. He then
raised the issue of the violation of his right to a
speedy trial.
The U.S. Supreme Court held that
determinations of whether or not the right to a
speedy trial has been violated or denied must be
made on a case to case basis. Accordingly: "A
defendant's constitutional right to speedy trial
can be determined only on an ad hoc basis in
which the conduct of the prosecution and the
defendant are weighed and balanced; among
factors which courts should assess in
determining whether a particular defendant has
been deprived of his right are length of delay, the
reason for the delay, the defendant's assertion
of his right, and prejudice to the defendant." It
proceeded to explain that none of the factors
mentioned is by itself determinative. All must be
considered and weighed together under what is
now known as the "balancing test."
While it appeared that in Barker, the delays were
due to continuances or postponements initiated
by the prosecution, the petitioner failed to
timely assert his right to a speedy trial. The
records show that he raised his right only after a
series of sixteen (16) continuances made by the
prosecution. Coupled with the absence of a
showing that he was actually prejudiced, the U.S.
Supreme Court held that despite the delays, the
petitioner's right to a speedy trial has not been
violated.
3. In Perez v. People, G.R. No. 164763, February
12, 2008, the accused claimed a violation of his
right to a speedy disposition of his case because
the decision of the Sandigan- bayan was handed
down after the lapse of more than twelve years.
"The years that he had to wait for the outcome
of his case were allegedly spent in limbo, pain
and agony."
The Court rejected the contention of the
petitioner finding no serious prejudice caused
upon him by the alleged delay. The Court
likewise found that the petitioner himself did not
want a speedy disposition of his case. Petitioner
was duly represented by counsel de parte in all
stages of the proceedings before the
Sandiganbayan until his conviction The records
do not however, show that petitioner has filed
any motion or manifestation which could be
construed even remotely as an indication that he
wanted his case to be dispatched without delay.
For this, the Court concluded that the petitioner
"has clearly slept on his right." The Court further
explained that "the matter could have taken a
different dimension if during all those twelve
years, petitioner had shown signs of asserting his
right to a speedy disposition of his case or at least
made some overt acts, like filing a motion for
early resolution, to show that he was not waiving
that right."
Approaches to speedy trial
Perez v. People heavily relied on Barker v. Wingo
in disposing of the issue of speedy trial declaring
that in that case the United States Supreme
Court was confronted for the first time with two
"rigid approaches" on speedy trial, namely as
"ways of eliminating some of the uncertainty
which courts experience protecting the right."
These are:
(a) The "fixed-time period" which holds the view
that the Constitution requires a criminal
defendant to be offered a trial within a specified
time period.
(b) The "demand-waiver rule9 which provides
that a defendant waives any consideration of his
right to speedy trial for any period prior to which
he has not demanded trial. Under this rigid
approach, a prior demand is a necessary
condition to the consideration of the speedy trial
right.
"The fixed-time period was rejected because
there is no constitutional basis for holding that
the speedy trial can be quantified into a specific
number of days or months." The demand-waiver
rule was likewise rejected because aside from
the fact that it is inconsistent with this Court's
pronouncements on waiver of constitutional
rights, "it is insensitive to a right which we have
deemed fundamental."
xxx
The Court went on to adopt a middle ground: the
'balancing test* in which the conduct of both the
prosecution and defendant are weighed. The
test necessarily compels courts to approach
speedy trial cases on an ad hoc basis where
courts should assess and identify certain factors
which courts should assess in determining
whether a particular defendant has been
deprived of his right such as the length of the
delay, the reason for the delay, the defendant's
assertion of his right, and prejudice to the
defendant.
xxx
The length of the delay is to some extent a
triggering mechanism. Until there is some delay
which is presumptively prejudicial, there is no
necessity for inquiry into the other factors that
go into the balance. Nevertheless, because of the
imprecision of the right to speedy trial, the
length of delay that will provoke such an inquiry
is necessarily dependent upon the peculiar
circumstances of the case. To take but one
example, the delay that can be tolerated for an
ordinary street crime is considerably less than for
a serious, complex conspiracy charge.
Closely related to length of delay is the reason
the government assigns to justify the delay.
Here, too, different weights should be assigned
to different reasons. A deliberate attempt to
delay the trial in order to hamper the defense
should be weighted heavily against the
government. A more neutral reason such as
negligence or overcrowded courts should be
weighted less heavily but nevertheless should be
considered since the ultimate responsibility for
such circumstances must rest with the
government rather than with the defendant.
Finally, a valid reason, such as a missing witness,
should serve to justify appropriate delay. We
have already discussed the third factor, the
defendant's responsibility to assert his right.
Whether and how a defendant asserts his right is
closely related to the other factors we have
mentioned. The strength of his efforts will be
affected by the length of the delay, to some
extent by the reason for the delay, and most
particularly by the personal prejudice, which is
not always readily identifiable, that he
experiences. The more serious the deprivation,
the more likely a defendant is to complain. The
defendant's assertion of his speedy trial right,
then, is entitled to strong evidentiary weight in
determining whether the defendant is being
deprived of the right. We emphasize that failure
to assert the right will make it difficult for a
defendant to prove that he was denied a speedy
trial.
A fourth factor is prejudice to the defendant.
Prejudice, of course, should be assessed in the
light of the interests of defendants which the
speedy trial right was designed to protect. This
Court has identified three such interests: (i) to
prevent oppressive pretrial incarceration;
(ii) to minimize anxiety and concern of the
accused; and
(iii) to limit the possibility that the defense will
be impaired. Of these, the most serious is the
last, because the inability of a defendant
adequately to prepare his case skews the
fairness of the entire system. If witnesses die or
disappear during a delay, the prejudice is
obvious. There is also prejudice if defense
witnesses are unable to recall accurately events
of the distant past. Loss of memory, however, is
not always reflected in the record because what
has been forgotten can rarely be shown."
The privilege against self-incrimination (Bar
1996; 1998; 2004; 2005)
1. The privilege is expressed in the following
provisions: (a) "No person shall be compelled to
be a witness against himself" (Sec. 17, Art. Ill,
Philippine Constitution).
(b) "In all criminal prosecutions, the accused
shall be entitled to the following rights x x x (e)
To be exempt from being compelled to be a
witness against himself" (Sec. l[e], Rule 115,
Rules of Court).
2. The privilege is intended to prevent the State,
with all its coercive powers, from extracting from
the suspect testimony that may convict him and
to avoid a person subject to such compulsion to
perjure himself for his own protection (People v.
Besonia, 422 SCRA 210).
3. "The privilege rests upon the principle that
"forcing a man to be a witness against himself is
at war with 'the fundamentals of a republican
government;' that [i]t may suit the purposes of
despotic power but it cannot abide the pure
atmosphere of political liberty and personal
freedom, x x x The maxim Nemo tenetur seipsum
accusare had its origin in a protest against the
inquisitorial and manifestly unjust methods of
interrogating accused persons, which has long
obtained in the continental system, and, until
the expulsion of the Stuarts from the British
throne in 1688, and the erection of additional
barriers for the protection of the people against
the exercise of arbitrary power, was not
uncommon even in England. While the
admissions of confessions of the prisoner, when
voluntarily and freely made, have always ranked
high in the scale of incriminating evidence, if an
accused person be asked to explain his apparent
connection with a crime under investigation, the
ease with which the questions put to him may
assume an inquisitorial character, the
temptation to press, the witness unduly, to
browbeat him if he be timid or reluctant, to push
him into a corner, and to entrap him into fatal
contradictions, which is so painfully evident in
many of the earlier state trials, notably in those
of Sir Nicholas Throckmorton, and Udal, the
Puritan minister, made the system so odious as
to give rise to a demand for its total abolition.
The change in the English criminal procedure in
that particular seems to be founded upon no
statute and no judicial opinion, but upon a
general and silent acquiescence of the courts in
a popular demand. But, however adopted, it has
become firmly embedded in English, as well as in
American jurisprudence. So deeply did the
iniquities of the ancient system impress
themselves upon the minds of the American
colonists that the states, with one accord, made
a denial of the right to question an accused
person a part of their fundamental law, so that a
maxim which in England was a mere rule of
evidence, became clothed in this country with
the impregnability of a constitutional enactment
CBrown v. Walker, 161 U.S., 591, 597; 40 Law.
ed., 819, 821V
Mr. Justice Malcolm, in expressive language, tells
us that this maxim was recognized in England in
the early days "in a revolt against the
thumbscrew and the rack."
An old Philippine case [1904] speaks of this
constitutional injunction as "older than the
Government of the United States;" as having "its
origin in a protest against the inquisitorial
methods of interrogating the accused person;"
and as having been adopted in the Philippines
"to wipe out such practices as formerly prevailed
in these Islands of requiring accused persons to
submit to judicial examinations, and to give
testimony regarding the offenses with which
they were charged."
So it is then that this right is 'not merely a formal
technical rule the enforcement of which is left to
the discretion of the court;' it is mandatory; it
secures to a defendant a valuable and
substantive right; it is fundamental to our
scheme of justice. Just a few months ago, the
Supreme Court of the United States (January
29,1968), speaking thru Mr. Justice Harlan
warned that "[t]he constitutional privilege was
intended to shield the guilty and imprudent as
well as the innocent and foresighted."
xxx
Therefore, the court may not extract from a
defendant's own lips and against his will an
admission of his guilt. Nor may a court as much
as resort to compulsory disclosure, directly or
indirectly, of facts usable against him as a
confession of the crime or the tendency of which
is to prove the commission of a crime. Because,
it is his right to forego testimony, to remain
silent, unless he chooses to take the witness
stand — with undiluted, unfettered exercise of
his own free, genuine will" (Cited in Chavez v.
Court of Appeals, G.R. No. L-29169, August
19,1968; Citations omitted; Underscoring
supplied).
4. The right against self-incrimination is not self-
executing or automatically operational. It must
be claimed. If not claimed by or in behalf of the
witness, the protection does not come into play.
It follows that the right may be waived,
expressly, or impliedly, as by a failure to claim it
at the ap-propriate time (People v. Ayson, G.R.
No. 85215, July 7,1989; U.S. v. Monia, 317 U.S.
424).
The assertion of the privilege against self-
incrimination must be raised in response to each
specific inquiry or it is waived. Each assertion of
the privilege rests on its own circumstances.
Blanket assertions of the privilege are not
permitted (See, United States v. White, 589 F.2d
1283, 1286-87 (5th Cir. 1979).
5. The right prescribes an "option of refusal to
answer incriminating questions and not a
prohibition of inquiry." It simply secures to a
witness, whether he be a party or not, the right
to refuse to answer any particular incriminatory
question, i.e., one the answer to which has a
tendency to incriminate him for some crime.
However, the right can be claimed only when the
specific question, incriminatory in character, is
actually put to the witness. It cannot be claimed
at any other time. It does not give a witness the
right to disregard a subpoena, to decline to
appear before the court at the time appointed,
or to refuse to testify altogether. The witness
receiving a subpoena must obey it, appear as
required, take the stand, be sworn and answer
questions. It is only when a particular question is
addressed to him, the answer to which may
incriminate him for some offense, that he may
refuse to answer on the strength of the
constitutional guaranty (People v. Ayson, G.R.
Nol 85215, July 7,1989).
The privilege applies only to natural persons
1. Does the term "person" include juridical
persons? In other words, may juridical persons
invoke the right against self-incrimination?
The U.S. Supreme Court in U.S. v. White, 322 U.S.
694 has construed the right in the following
terms: "The constitutional privilege against self-
incrimination is essentially a personal one,
applying only to natural individuals." Because it
is a personal privilege, the papers and effects
which the privilege protects must be the private
property of the person claiming the privilege, or
at least in his possession in a purely personal
capacity.
Hence, stated U.S. v. White, a labor union official
cannot refuse to produce books and records of
the union in his custody and required by the
court to be produced. He cannot invoke the
privilege against self-incrimination by
contending that the production of the books and
records would tend to incriminate himself and
the organization.
2. Wilson v. United States, 221 U.S. 361 had a
similar interpretation when it ruled that since
corporate existence implies amenability to legal
powers, a subpoena duces tecum may be
directed to a corporation which is under a duty
to produce records, books, and papers in its
possession when they may be properly required
in the administration of justice. An individual
may not invoke the privilege to refuse to produce
corporate records when the subpoena is
directed to the corporation.
Wilson adds that a subpoena duces tecum which
is suitably specific and properly limited in its
scope does not violate the unreasonable search
and seizure provisions of the constitution; the
privilege against self-incrimination cannot be
raised by a corporate officer having possession
of corporate documents for his personal benefit.
A case decided after U.S. v. White sustained the
conviction for contempt of the petitioner who
testified that she had been the Treasurer of the
Communist Party of Denver and had been in
possession of its records, which she later had
turned over to another person. When asked to
identify the person to whom she had delivered
the records, she refused the order of the court.
When she was charged with contempt, she
asserted her privilege against self-incrimination.
Her claim of privilege was overruled and she was
convicted of contempt (Rogers v. United States,
340 U.S. 367).
Rogers held that since the privilege against self-
incrimi- nation is solely for the benefit of the
witness, petitioner's original refusal to answer
could not be justified by a desire to protect
another from punishment, much less to protect
another from interrogation by a grand jury. Also,
books and records kept in a representative,
capacity cannot be the subject of the privilege
against self-incrimination, even though
production of them might tend to incriminate
their keeper personally since the books were not
held in a personal capacity.
The privilege protects a person from testimonial
compulsion or evidence of a communicative nature
1. The famous case of Schmerber v. California,
384 U.S. 757, held that the privilege against self-
incrimination protects a person only from
testimonial compulsion or a compelled
testimony of a communicative nature without
however, declaring that the privilege applies
only to cases where a testimonial evidence is
extracted from the lips of the witness or from a
strictly oral testimony.
Schmerber originated from an automobile
accident involving the petitioner who was driving
a car. A police officer who smelled liquor on his
breath and noticed he was drunk, placed him
under arrest and informed him of his Miranda
rights. A physician was directed by the officer to
extract a blood sample from petitioner despite
the petitioner's refusal. The chemical analysis of
the blood sample indicated an intoxication which
subsequently became the basis for his conviction
for driving while intoxicated and the chemist's
report was admitted in evidence despite his
objection. He was convicted and said conviction
was affirmed on appeal. The appellate court
rejected his claim of denial of the privilege
against self-incrimination, among others.
Deciding on whether or not the withdrawal of
the blood sample and the admission in evidence
of the analysis involved in this case violated
petitioner's privilege, the Court emphati- cally
held that "the privilege protects an accused only
from being compelled to testify against himself,
or otherwise pro- vide the State with evidence of
a testimonial of a communica- tive nature, and
that the withdrawal of blood and use of the
analysis in question in this case did not involve
compulsion to these ends."
xxx
"In the present case, however, no such problem
of application is presented. Not even a shadow
of testimonial compulsion upon or enforced
communication by the accused was involved
either in the extraction or in the chemical
analysis. Petitioner's testimonial capacities were
in no way implicated; indeed, his participation,
except as a donor, was irrelevant to the results
of the test, which depend on chemical analysis
and on that alone. Since the blood test evidence,
although an incriminating product of
compulsion, was neither petitioner's testimony
nor evidence relating to some communicative
act or writing by the petitioner, it was not
inadmissible on privilege grounds."
2. In a case decided before Schmerber, the U.S.
Supreme Court in Holt v. United States, 218 U.S.
245 was confronted with the question whether
or not the accused prior to trial, could be
required to wear a particular clothing over his
protest to facilitate his identification by the
witness. The accused contended that to submit
to the demand of authorities is to violate the
privilege against self-incrimination. The Court
rejected the claim describing the same as "based
upon an extravagant extension of the Fifth
Amendment."
The Court went on to state:
"[T]he prohibition of compelling a man in a
criminal
court to be a witness against himself is a
prohibition of
the use of physical or moral compulsion to extort
communications from him, not an exclusion of
his body as evidence when it may be material.
The objection in principle would forbid a jury to
look at a prisoner and compare his features with
a photograph in proof."
3. In U.S v. Wade, 388 U.S. 218, the accused was
placed in a lineup in which each person was
made to wear strips of tape on his face, as the
robber allegedly had done, and, on direction,
repeated words like those the robber allegedly
had used. Two bank employees identified the
accused as the perpetrator both in the line up
and in the trial. Urging that the conduct of the
lineup violated his Fifth Amendment privilege
against self-incrimination the accused sought for
his acquittal. The trial court convicted the
accused.
The Wade court explained that neither the
lineup itself nor anything required therein
violated respondent's Fifth Amendment
privilege against self-incrimination, since merely
exhibiting his person for observation by
witnesses and using his voice as an identifying
physical characteristic involved no compulsion of
the accused to give evidence of a testimonial
nature against himself. "The Fifth Amendment
protects an accused only from being compelled
to testify against himself, or otherwise provide
the State with evidence of a testimonial or
communicative nature...."
The Court explained further that the prohibition
compelling a person to be a witness against
himself is a prohibition of the use of physical or
moral compulsion to extort communications
from him, not an exclusion of his body as
evidence when it may be material and that
"compelling the accused merely to exhibit his
person for observation by a prosecution witness
prior to trial involves no compulsion of the
accused to give evidence having testimonial
significance. It is compulsion of the accused to
exhibit his physical characteristics, not
compulsion to disclose any knowledge he might
have. It is no different from compelling
Schmerber to provide a blood sample or Holt to
wear the blouse, and, as in those instances, is not
within the cover of the privilege. Similarly,
compelling Wade to speak within hearing
distance of the witnesses, even to utter words
purportedly uttered by the robber, was not
compulsion to utter statements of a
"testimonial" nature; he was required to use his
voice as an identifying physical characteristic,
not to speak his guilt. We held in Schmerber, that
the distinction to be drawn under the Fifth
Amendment privilege against self- incrimination
is one between an accused's "communications,"
in whatever form, vocal or physical, and
"compulsion which makes a suspect or accused
the source of real or physical evidence."
The Court stressed:
"x x x both federal and state courts have usually
held that. . . [the privilege] offers no protection
against compulsion to submit to fingerprinting,
photography, or measurements, to write or
speak for identification, to ap- pear in court, to
stand, to assume a stance, to walk, or to make a
particular gesture. None of these activities be-
comes testimonial within the scope of the
privilege xxx" (Underscoring supplied).
4. The principles explained by the U.S. Supreme
Court in previous cases including that in Wade
and Schmerber were applied to cases like United
States v. Dionisio, 410 U.S. 2, where the
petitioner refused to comply with an order from
a special grand jury to furnish it with samples of
his voice recordings. It appeared that the grand
jury received in evidence certain voice
recordings that had been previously obtained
through court orders. Dionisio and other
witnesses refused to furnish the voice exemplars
invoking, among others, the Fifth amendment
privilege against self-incrimination. The district
Court later adjudged him in civil contempt due to
his persistent refusal.
The U.S. Supreme Court held that the Court of
Appeals correctly rejected the contention that
the compelled produc- tion of the voice
exemplars would violate the Fifth Amend- ment
since it has long been held that the compelled
display of identifiable physical characteristics
infringes no interest protected by the privilege
against compulsory self-incrimination. Citing
Holt, the Court explained that "the prohibition of
compelling a man in a criminal court to be
witness against himself is a prohibition of the use
of physical or moral compulsion to extort
communications from him, not an exclusion of
his body as evidence when it may be material."
Citing Schmerber, the Court once again declared
that the privilege offers "no protection against
compulsion to submit to fingerprinting,
photographing, or measurements, to write or
speak for identification, to appear in court, to
stand, to assume a stance, to walk, or to make a
particular gesture."
5. The early case of Villaflor v. Summers, 41 Phil.
62, decided by the Philippine Supreme Court was
decided on the theory that "the kernel of the
privilege" was the prohibition against
"testimonial compulsion and rejected the
arguments of a woman accused of adultery that
to compel her to submit to a physical
examination to determine her pregnancy was a
violation of her right against self-incrimination.
6. In United States v. Ong Siu Hong, (36 Phil.
735), the Court admitted in evidence morphine
that was forced out of the mouth of the accused
because it involved no testimonial compulsion.
7. In U.S. v. Tan Teng, 23 Phil. 145, the Supreme
Court rejected a claim of the privilege when the
accused in a criminal action for acts of
lasciviousness was stripped of his clothing after
his arrest and in his body was found a substance
consistent with gonorrhea, a disease from which
his alleged seven-year old victim was suffering
from.
8. In People v. Otadora, 86 Phil. 244, it was held
that there is no infringement of the privilege
when a person is required to put on clothings or
shoes for size or for measuring or
photographing. Neither is it a violation of the
privilege to require a person to place his foot
over a footprint found in the crime scene as held
in U.S. v. Zara, 42 Phil. 308.
9. In Herrera v. Alba, 460 SCRA 197, the Court
emphasized that obtaining DNA samples from an
accused in a criminal case or from the
respondent in a paternity case, will not violate
the right against self-incrimination since the
privilege applies only to evidence that is
"communicative" in essence.
10. Philippine decisions on the privilege against
self- incrimination basically mirror those of their
American counterparts although the former
have been found to be more succinct and less
susceptible to misinterpretations.
Forced re-enactments
People v. Olvis, G.R. No. 71092, September 30,
1987, for instance, is an exemplar of a very lucid
summary of the essence of the privilege when it
declared that forced re-enact- ments, like
uncounselled and coerced confessions come
within the ban against self- incrimination. Thus,
all evidence based on such a re-enactment are to
be deemed in violation of the Constitution and
hence, incompetent evidence.
Justice Sarmiento in People v. Olvis goes on to
declare that the "constitutional privilege has
been defined as a protection against testimonial
compulsion, but this has since been extended to
any evidence "communicative in nature"
acquired under circumstances of duress.
Essentially, the right is meant to "avoid and
prohibit positively the repetition and recurrence
of the certainly inhuman procedure of
compelling a person, in a criminal or any other
case, to furnish the missing evidence necessary
for his conviction." This was the lesson learned
from the ancient days of the inquisition in which
accusation was equivalent to guilt. Thus, an act,
whether testimonial or passive, that would
amount to disclosure of incriminatory facts is
covered by the inhibition of the Constitution.
People v. Olvis continues: "This should be
distinguished, parenthetically, from mechanical
acts the accused is made to execute not meant
to unearth undisclosed facts but to ascertain
physical attributes determinable by simple
observation. This includes requiring the accused
to submit to a test to extract virus from his body,
or compelling him to expectorate morphine from
his mouth or making her submit to a pregnancy
test or a foot printing test, or requiring him to
take part in a police lineup in certain cases. In
each case, the accused does not speak his guilt.
It is not a prerequisite therefore, that he be
provided with the guiding hand of counsel.
But a forced re-enactment is quite another thing.
Here, the accused is not merely required to
exhibit some physical characteristics; by and
large, he is made to admit criminal responsibility
against his will. It is a police procedure just as
condemnable as an uncounselled confession"
(People v. Olvis, G.R. No. 71092, September
30,1987).
Meaning of compulsion
Compulsion as it is understood does not
necessarily connote the use of violence; it may
be the product of unintentional statements.
Pressure which operates to overbear his will,
disable him from making a free and rational
choice, or impair his capacity for rational
judgment would be sufficient. So is moral
coercion "tending to force testimony from the
unwilling lips of the defendant." (State v. Wolfe,
266 N.W. 116,125 cited in Chavez v. Court of
Appeals, G.R. No. L-29169, August 19, 1968).
Writing exemplars or samples
1. In Gilbert v. California, 388 U.S. 263, the
petitioner was convicted of armed robbery and
the murder of a police officer by a jury which
imposed the death penalty. The petitioner
alleges that his conviction was attended by
constitutional errors like, among others, in the
admission of handwriting exemplars taken from
him after arrest.
The contention was brushed aside by the Court
and held that the taking of handwriting
exemplars did not violate petitioner's
constitutional rights. The Fifth Amendment
privilege against self-incrimination reaches
compulsory communications, but a mere
handwriting exemplar, in contrast with the
content of what is written, is an identifying
physical characteristic outside its protection.
2. Under different set of facts, the Philippine
Supreme Court in the 1929 case of Beltran v.
Samson, 53 Phil. 570, ruled against the furnishing
of written exemplars.
Beltran stemmed from an order of the
respondent judge requiring the petitioner to
appear before the provincial fiscal to take a
dictation in his own handwriting. The purpose of
the order was for the court to have a basis for the
purpose of comparing the petitioner's
handwriting and of determining whether or not
it was he who wrote certain documents
supposed to be falsified. In a petition for
prohibition, the petitioner sought to prevent the
enforcement of the order by seeking refuge in
the constitutional privilege against self-
incrimination.
The court explained in Beltran that as to its
scope, the privilege is not limited precisely to
testimony, but extends to the giving or
furnishing of evidence.
It went on to declare:
"The rights intended to be protected by the
constitutional provision that no man accused of
crimes shall be compelled to be a witness against
himself is so sacred, and the pressure toward
their relaxation so great when the suspicion of
guilt is strong and the evidence obscure, that is
the duty of courts liberally to construe the
prohibition in favor of personal rights, and to
refuse to permit any steps tending toward their
invasion. Hence, there is the well-established
doctrine that the constitutional inhibition is
directed not merely to giving of oral testimony,
but embraces as well the furnishing of evidence
by other means than by word of mouth, the
divulging, in short, of any fact which the accused
has a right to hold.
xxx
"Furthermore, in the case before us, writing is
something more than moving the body, or the
hands, or the fingers; writing is not a purely
mechanical act, because it requires the
application of intelligence and attention: and in
the case at bar writing means that the petitioner
herein is to furnish a means to determine
whether or not he is the falsifier, as the petition
of the respondent fiscal clearly states. Here the
witness is compelled to write and create, by
means of the act of writing, evidence which
does not exist, and which may identify him as the
falsifier (Beltran v. Samson, 53 Phil. 570;
Underscoring supplied).
Comparing Beltran with Villaflor, the Court
ratiocinated:"
"In the case of Villaflor v. Summers (41 Phil. 62),
it was plainly stated that the court preferred to
rest its decision on the reason of the case rather
than on blind adherence to tradition. The said
reason of the case there consisted in that it was
the case of the examination of the body by
physicians, which could be and doubtless was
interpreted by this court, as being no compulsion
of the petitioner therein to furnish evidence by
means of testimonial act. In reality she was not
compelled to execute any positive act, much less
a testimonial act; she was only enjoined from
something preventing the examination; all of
which is very different from what is required of
the petitioner of the present case, where it is
sought to compel him to perform a positive,
testimonial act, to write and give a specimen of
his handwriting for the purpose of comparison.
Besides, in the case of Villamor v. Summers, it
was sought to exhibit something already in
existence, while in the case at bar, the question
deals with something not yet in existence, and it
is precisely sought to compel the petitioner to
make, prepare, or produce by this means,
evidence not yet in existence; in short, to create
this evidence which may seriously incriminate
him."
3. Not every act of affixing one's signature is
within the protection of the privilege against
self-incrimination as the Court found in Marcelo
v. Sandiganbayan, G.R. No. 109242, January
26,1999.
In a petition for review after his conviction, the
petitioner raised, as one of the issues on appeal
the fact that the trial court erred in admitting in
evidence the letters signed by him because he
was asked to sign them during custodial
investigation without the assistance of counsel
and that his affixing of this signature during
custodial investigation violated the
constitutional provision that "no person shall be
compelled to be a witness against himself."
Petitioner's counsel argued that the signing of
petitioner's and his co-accused's names was not
a mere mechanical act but one which required
the use of intelligence and therefore constitutes
self-incrimination presumably having in mind,
said the Court, the ruling in Beltran v. Samson "to
the effect that the prohibition against compelling
a man to be a witness against himself extends to
any attempt to compel the accused to furnish a
specimen of his handwriting for the purpose of
comparing it with the handwriting in a document
in a prosecution for falsification. Writing is
something more than moving the body, or the
hand, or the fingers; writing is not a purely
mechanical act because it requires the
application of intelligence and attention."
The Court however, made a distinction between
the use of the specimen handwriting in Beltran.
In that case, the purpose was to show that the
specimen handwriting matched the handwriting
in the document alleged to have been falsified
and thereby show that the accused was the
author of the crime (falsification). In Marcelo v.
Sandiganbayan, the purpose for securing the
signature of petitioner on the envelopes was
merely to authenticate the envelopes as the
ones seized from him..." Thus, the invocation of
the right against self- incrimination was not
upheld.
In Marcelo however, the Court explained that
when the signatures of the accused were affixed,
such signatures were actually evidence of
admission obtained from petitioner and his co-
accused under circumstances constituting
custodial investigation. Under the Constitution,
among the rights of a person under custodial
investigation is the right to have competent and
independent counsel preferably of his own
choice and if the person cannot afford the
services of counsel, that he must be provided
with one. It is on this ground that the letters with
the signature of the accused could be excluded.
"However, the letters are themselves not
inadmissible in evidence. The Letters were
validly seized from petitioner x x x as an incident
of a valid arrest. A ruling that petitioner's
admission that the letters in question were those
seized from him and his companion x x x is
inadmissible in evidence does not extend to the
exclusion from evidence of the letters
themselves. The letters can stand on their own,
being the fruits of the crime validly seized during
a lawful arrest. That these letters were the ones
found in the possession of petitioner and his
companion and seized from them was shown by
the testimonies x x x." Thus, in effect the Court
meant that the signatures affixed were irrelevant
to the admissibility of the letters as the items
seized from the accused.
Questions which the witness may refuse to answer
1. Hoffman v. United States, 341 U.S. 479,
illustrates the wide ranging scope of the kinds of
questions which a witness may refuse to answer.
In this case, the petitioner refused to answer
certain questions asked of him in a federal grand
jury investigation pertaining to his occupation,
the names of his contacts and the whereabouts
of a person who is sought by the same grand jury
and for whom a bench warrant has been issued.
Despite the order for him to answer the
questions, he refused and was subsequently
convicted of contempt.
In reversing the conviction, the U.S. Supreme
Court ruled that the privilege against self-
incrimination extends not only to answers that
would in themselves support a conviction but
also to those which would furnish "a link in the
chain of evidence" needed to prosecute the
claimant of the privilege. To compel the
petitioner to answer the questions as to his
contacts and connections and his knowledge of
the whereabouts of the witness being sought
might have exposed him to the perils of a
prosecution under existing laws on obstruction
and conspiracy. Hoffman obviously accorded a
liberal interpretation to the privilege and
allowed a refusal to answer questions which may
tend to incriminate the witness.
Citing previously decided cases, Hoffman
however, cautioned that this protection must be
confined to instances where the witness has
reasonable cause to apprehend danger from a
direct answer. The witness is not exonerated
from answering merely because he declares
that, in so doing he would incriminate himself.
What he says does not of itself establish the
hazard of incrimination. It is for the court to say
whether his silence is justified, and to require
him to answer if "it clearly appears to the court
that he is mistaken. However, if the witness,
upon interposing his claim, is to be required to
prove the hazards posed by his answers he
would actually be compelled to surrender the
very protection which the privilege is designed to
guarantee. To sustain the privilege, it need only
be evident from the implications of the question,
in the setting in which it is asked. The privilege
should be sustained unless it clearly appears that
the claim is mistaken, i.e., unless it is perfectly
clear from careful consideration of all
circumstances that the witness is mistaken and
the answer cannot possibly have incriminating
effect."
2. Malloy v. Hogan, 378 U.S. 1, is an authority of
the rule that it is not necessary that a witness
explain how his answer will tend to incriminate
him, since this would compel him to surrender
the protection to which the privilege is designed
to guarantee. The test for determining if the
privilege is validly asserted was clearly set out in
Malloy. It is: "To sustain the privilege, it need
only be evidenced from the implication of the
question, in the setting in which it is asked, that
a responsive answer to the question or an
explanation of why it cannot be answered might
be dangerous because injurious disclosures
would result. In applying that test, the judge
must be perfectly clear from a careful
consideration of all the circumstances in the case
that the witness is mistaken and that the
answers cannot possibly have such tendency to
incriminate."
Privilege extends to lawyers advising a witness to
invoke the privilege
The issue is whether in a civil proceeding a
lawyer may be held in contempt for counseling a
witness in good faith to refuse to produce court-
ordered materials on the ground that the
materials may tend to incriminate the witness in
another proceeding. It was held that the lawyer
may not be penalized even though his advice
caused the witness to disobey the court's order.
To hold otherwise would deny the constitutional
privilege against self-incrimination the means of
its own implementation, since, when a witness is
so advised the advice becomes an integral part
of the protection accorded the witness by the
Fifth Amendment (Maness v. Meyers, 419 U.S.
449).
Persons who are mere custodians of documents
cannot claim the privilege
1. In Fischer v. United States, 425 U.S. 391,
certain taxpayers who were under investigation
for possible violations of federal income tax laws,
obtained from their respective accountants
documents relating to the accountants'
preparation of their tax returns. These were
transferred by the taxpayers to their lawyers
hired to assist them in the investigations. The
lawyers refused to produce the documents when
summoned by the Internal Revenue Service. The
government filed suit to compel the production
of the documents. Both the District Court
ordered the summons enforced holding that the
taxpayers had never acquired a possessory
interest in the documents and that the
documents were not immune from production in
the attorney's hands. Fischer upheld the lower
court. The compelled production of the
documents in question from the attorneys did
not implicate the privilege against self-
incrimination. The Court explained that
enforcement of the summons against the
lawyers did not require or compel the taxpayers
to perform an act and could not result in
compelling the taxpayers to testify against
themselves, the Fifth Amendment on the
privilege against self-incrimination being limited
to prohibiting the use of physical or moral
compulsion against one who exercises the
privilege. This is true even if the lawyers were
agents of the taxpayers because the lawyers
were not the accused.
2. In Couch v. United States, 409 U.S. 322, the
Court did not consider the subpoena of a
taxpayer's records from his accountant directed
to the latter as a violation of the privilege against
self-incrimination of the accountant. It is the
accountant who is compelled to do an act and he
makes no claim that he may tend to be
incriminated by the production.
Neither does the subpoena implicate a
violation of the privilege against self-
incrimination of the taxpayer since the
subpoena and the demand for the
information sought was directed to the
accountant and not the taxpayer. In the
present case, no "shadow of testimonial
compulsion upon or enforced
communication by the accused" is involved.
Proceedings in which the privilege may be
asserted
1. The privilege can be asserted in any
proceeding, civil or criminal, administrative
or judicial, investigatory or adjudicatory
(Maness v. Meyers, 419 U.S. 449; Kastigar v.
U.S., 406 U.S. 441). Privilege against self
incrimination under the Fifth Amendment
"applies alike to civil and criminal
proceedings, wherever the answer might
tend to subject to criminal responsibility him
who gives it" (McCarthy v. Amdstein, 266
U.S. 34). The right is accorded to every
person who gives evidence, whether
voluntarily or under compulsion of
subpoena, in any civil, criminal, or
administrative proceeding (People v. Ayson,
G.R. No. 85215, July 7,1989).
The Philippine Supreme Court enunciated
the same rule when it ruled that the privilege
against self-incrimination can be asserted in
any proceeding, civil or criminal,
administrative or judicial, investigatory or
adjudicatory; and it protects against any
disclosures that the witness reasonably
believes could be used in a criminal
prosecution or could lead to other evidence
that might be so used (Mapa v.
Sandiganbayan, G.R. No. 100295, April 26,
1994, citing Kastigar vs. U.S., 406 US 441).
2. It is important to reiterate that privilege is
a personal privilege: it adheres basically to
the person, not to information that may
incriminate him (Couch v. United States, 409
U.S. 322).
3. The meaning of the constitutional
provision is not merely that a person shall
not be compelled to be a witness against
himself in a criminal prosecution against
himself, but its object is to insure that a
person shall not be compelled, when acting
as a witness in any investigation, to give
testimony which may tend to show that he
himself has committed a crime (Counselman
v. Hitchcock, 142 U.S. 547; Italics supplied).
"xxx The privilege is not ordinarily
dependent upon the nature of the
proceeding in which the testimony is sought
or is to be used. It applies alike to civil and
criminal proceedings, wherever the answer
might tend to subject to criminal
responsibility him who gives it (McCarthy v.
Arndstein, 266 U.S. 34; Underscoring
supplied).
Distinctions between the claim of the
privilege by an accused and by a mere
witness
1. The leading case of Chavez v. Court of
Appeals, G.R. L-29169, August 19, 1968,
clearly spelled out the distinction between
the scope of the privilege of an accused and
that of an ordinary witness. Chavez stated
that an accused, occupies a different tier of
protection from an ordinary witness.
Whereas an ordinary witness may he
compelled to take the witness stand and
claim the privilege as each question requiring
an incriminating answer is shot at him, an
accused may altogether refuse to take the
witness stand and refuse to answer any and
all questions. For, in reality, the purpose of
calling an accused as a witness for the People
would be to incriminate him. The rule
positively intends to avoid and prohibit the
certainly inhuman procedure of compelling a
person "to furnish the missing evidence
necessary for his conviction." This rule may
apply even to a co-defendant in a joint trial.
In Chavez, the petitioner was the accused in
a criminal case. He was called by the
prosecution as the first witness in that case
allegedly to testify for the prosecution. He
objected claiming refuge under the privilege
of self-incrimination. The judge did not heed
his protestations and asserted that "there is
the right of the prosecution to ask anybody
to act as witness on the witness stand
including the accused," and that defense
counsel"could not object to have the accused
called on the witness stand." Because of the
hard stance of the judge, petitioner had to
take the stand.
The Court in Chavez observed that in compelling
the accused to take the stand, the judge also
compelled the petitioner to create evidence
against himself. Emphatically, the Court held
that under the circumstances, the petitioner was
forced to testify to incriminate himself, in full
breach of his constitutional right to remain
silent. Thus, it could not be considered that the
petitioner has waived his right since he did not
volunteer to take the stand and even in his own
defense he did not offer himself as a witness. If
the petitioner, observed the Court, nevertheless
answered the questions, this was because of the
fear of being accused of perjury or being put
under contempt. His testimony therefore, was
not of his own choice. In declaring that the
circumstances clearly presented a case of
compelled submission the Court described
Chavez as "a cowed participant in the
proceedings before a judge who possessed the
power to put him under contempt had he chosen
to remain silent" (Underscoring supplied).
2. The right of the defendant in a criminal case
"to be exempt from being a witness against
himself signifies that he cannot be compelled to
testify or produce evidence in the criminal case
in which he is the accused, or one of the accused.
He cannot be compelled to do so even by
subpoena or other process or order of the Court.
He cannot be required to be a witness either for
the prosecution, or for a co-accused, or even for
himself." In other words — unlike an ordinary
witness (or a party in a civil action) who may be
compelled to testify by subpoena, having only
the right to refuse to answer a particular
incriminatory question at the time it is put to him
— the defendant in a criminal action can refuse
to testify altogether. He can refuse to take the
witness stand, be sworn, answer any question.
And, as the law categorically states, "his neglect
or refusal to be a witness shall not in any manner
prejudice or be used against him" (Italics
supplied).
xxx
"It must however be made clear that if the
defendant in a criminal action be asked a
question which might incriminate him, not for
the crime with which he is charged, but for some
other crime, distinct from that of which he is
accused, he may decline to answer that specific
question, on the strength of the right against
self-incrimination xxx. Thus, assuming that in a
prosecution for murder, the accused should
testify in his behalf, he may not on cross-
examination refuse to answer any question on
the ground that he might be implicated in that
crime of murder; but he may decline to answer
any particular question which might implicate
him for a different and distinct offense, say,
estafa" (People v. Ayson, G.R. No. 85215, July 7,
1989).
Waiver of the privilege
1. The privilege against self-incrimination may be
waived. It is a rule that an accused may refuse to
testify. However, if he testifies in his own behalf,
he may be cross-examined on matters covered
by the direct examination (Sec. l[d], Rule
115Rules of Court).
2. "To be effective, a waiver must be certain and
unequivocal, and intelligently, understandably,
and willingly made; such waiver following only
where liberty of choice has been fully accorded.
After a claim, a witness cannot properly be held
to have waived his privilege on vague and
uncertain evidence." A waiver is an intentional
relinquishment or abandonment of a known
right. Accordingly, courts do not presume a
waiver of fundamental rights and in fact. The
"courts indulge every reasonable presumption
against waiver" of fundamental constitutional
rights (Chavez v. Court of Appeals, G.R. No. L-
29169, August 19,1968).
3. In the case of Rogers v. United States, 340 U.S.
367 the petitioner had freely answered self-
incriminating questions relating to her
connection with the Communist Party. Having
done so, the petitioner could not refuse to
answer further questions which would possibly
subject her to a danger of further incrimination.
The privilege will not apply when witness is
given immunity from prosecution
1. Under American common law, a witness
maybe immunized from prosecution. Immunity
from prosecution occurs when the
government, under an authorizing law,
grants immunity to a witness in exchange for
a testimony favorable to the prosecution.
This immunity embodies an understanding
that the prosecutor essentially agrees to
refrain from prosecuting the witness.
The government may grant immunity in one
of the two following two forms: (a)
Transactional immunity also known as
"blanket" or "total" immunity completely
protects the witness from future
prosecution for crimes related to his or her
testimony; (b) "Use and derivative use"
immunity prevents the prosecution only
from using the witness's own testimony or
any evidence derived from the testimony
against the witness. However, should the
prosecutor later on acquire evidence of a
crime committed by the witness,
independently of the witness's testimony,
the witness may then be prosecuted for the
crime (See Kastigar v. United States 406 U.S.
441).
2. Recognized in this jurisdiction is the
American common law concept of statutory
criminal immunity available to a witness. A
Philippine Supreme Court decision
categorizes the forms of immunity into: (a)
transactional immunity; and
(b) use-and-derivative-use immunity.
Transactional immunity is broader in the
scope of its protection. By its grant, a witness
can no longer be prosecuted for any offense
whatsoever arising out of the act or
transaction to which the testimony relates.
In contrast, by the grant of use-and-
derivative-use immunity, a witness is only
assured that his or her particular testimony
and evidence derived from it will not be used
against him or her in a subsequent
prosecution (Tanchanco v. Sandiganbayan,
G.R. No. 141675- 96, November 25, 2005).
3. Transactional immunity derives from
common-law tradition, which gives greater
deference to the weight of judicial
precedents since the codification of laws by
the legislature is atypical in practice. In our
jurisdiction though, the definition of crimes
and provision of criminal penalties are
ineluctably within the sole province of the
legislative branch of government. It thus
follows that this prerogative necessarily
empowers the legislative to enact conditions
under which a class of persons may be
immune from criminal or civil prosecution.
Since the legislature possesses sole
discretion to enact statutes to such effect, it
is not obliged to conform with judge- made
standards, or even traditional modalities
concerning the grant of criminal immunity.
The solitary limitation on legislative grant of
immunity, as with all other legislative acts, is
adherence to the Constitution (Tanchanco v.
Sandiganbayan, G.R. No. 141675-96,
November 25,2005).
Immunity statutes; examples
1. Immunity statutes seek a rational
accommodation between the imperatives of
the privilege and the legitimate demands of
government to compel citizens to testify.
The existence of these statutes reflects the
importance of testimony, and the fact that
many offenses are of such a character that
the only persons capable of giving useful
testimony are those implicated in the crime
(Mapa v. Sandiganbayan, G.R. No. 100295,
April 26,1994).
2. (a) The most well-known immunity
provision is the one found in Article XVI,
Section 3 which provides that "the State may
not be sued without its consent." (b) Article
VI, Section 11 of the Constitution also grants
parliamentary immunities. The provision
reads: "A Senator or Member of the House
of Representatives shall, in all offenses
punishable by not more than six years
imprisonment, be privileged from arrest
while the Congress is in session. No member
shall be questioned nor be held liable in any
other place for any speech or debate in the
Congress or in any committee thereof."
(c) Sec. 18[8], Art. XIII, of the Philippine
Constitution provides that one of the powers
and functions of the Commission on Human
Rights is to "Grant immunity from
prosecution to any person whose testimony
or whose possession of documents or other
evidence is necessary or convenient to
determine the truth in any investigation
conducted by it or under its authority."
(d) Sec. 17 of the Ombudsman Act of 1989
provides for immunity, thus:
XXX
'Under such terms and conditions as it may
determine, taking into account the pertinent
provisions of the Rules of Court, the
Ombudsman may grant immunity from
criminal prosecution to any person whose
testimony or whose possession and
production of documents or other evidence
may be necessary to determine the truth in
any hearing, inquiry or proceeding being
conducted by the Ombudsman or under its
authority, in the performance or in the
furtherance of its constitutional functions
and statutory objectives. The immunity
granted under this and the immediately
preceding paragraph shall not exempt the
witness from criminal prosecution for
perjury or false testimony nor shall he be
exempt from demotion or removal from
office.
"Any refusal to appear or testify pursuant to
the foregoing provisions shall be subject to
punishment for contempt and removal of
the immunity from criminal prosecution."
(e) Sec. 5, Executive Order No. 14 as
amended grants the Presidential
Commission on Good Government (PCGG)
the authority to grant immunity to
informants or witnesses, thus:
"Sec. 5. The Presidential Commission on
Good Government is authorized to grant
immunity to any person who provides
information or testifies in any investigation
conducted by such Commission, to establish
the unlawful manner by which any
respondent, defendant or accused has
accumulated the property or properties in
question in any case where such information
or testimony is necessary to ascertain or
prove his guilt or civil liability. The
immunity granted thereby shall be
continued to protect the witness who
repeats the testimony before the Sandi-
ganbayan when required to do so by the
latter or by the commission."
(f) P.D. 749 provides immunity from
prosecution for informants, thus:
Any person who voluntarily gives
information about any violation of Articles
210, 211, 212 of the Revised Penal Code,
Republic Act No. 3019, as amended; Section
345 of the Internal Revenue Code and
Section 3604 of the Tariff and Customs Code
and other provisions of the said codes
penalizing abuse or dishonesty on the part of
the public officials concerned; and other
laws, rules and regulations punishing acts of
graft, corruption and other forms of official
abuse; and who willingly testified, such
violator shall be exempt from prosecution or
punishment for the offense with reference
to which his information and testimony were
given, and may plead or prove the giving of
such information and testimony in bar of
such prosecution: Provided, That this
immunity may be enjoyed even in cases
where the information and the testimony
are given against a person who is not a public
official but who is a principal or accomplice,
or accessory in the commission of any of the
above-mentioned violations: Provided,
further, That this immunity may be enjoyed
by such informant or witness
notwithstanding that he offered or gave
bribe or gift to the public official or is an
accomplice for such gift or bribe-giving; And,
Provided, finally, That the following
conditions concur:
i. The information must refer to
consummated violations of any of the
above-mentioned provisions of law, rules
and regulations;
ii. The information and testimony are
necessary for the conviction of the accused
public officer;
iii. Such information and testimony are not
yet in the possession of the State;
iv. Such information and testimony can be
corroborated on its material points; and
v. The informant or witness has not been
previously convicted of a crime involving
moral turpitude.
(g) Republic Act 6981 also known as the
Witness Protection, Security and Benefit Act
provides in Sec. 12 thereof:
"Section 12. Effect of Admission of a State
Witness into the Program. — The
certification of admission into the Program
by the Department shall be given full faith
and credit by the provincial or city
prosecutor who is required not to include
the Witness in the criminal complaint or
information and if included therein, to
petition the court for his discharge in order
that he can be utilized as a State Witness.
The Court shall order the discharge and
exclusion of the said accused from the
information.
"Admission into the Program shall entitle
such State Witness to immunity from
criminal prosecution for the offense or
offenses in which his testimony will be given
or used and all the rights and benefits
provided under Section 8 hereof."
The right to defend himself; right to be
heard
1. An accused is accorded the right to defend
himself either in person or by counsel. As a
consequence of such right, he has the right
to be present at the trial at every stage of the
proceedings from arraignment to the
promulgation of the judgment (Sec. l[c], Rule
115, Rules of Court).
Upon motion, the accused may be allowed
by the court to defend himself in person
when it sufficiently appears to the court that
he can properly protect his rights without
the assistance of counsel (Sec. l[c], Rule 115,
Rules of Court).
2. Pursuant to the stipulations set forth in his
bail, the accused has the right to waive his
presence at the trial but he shall be required
to be at the trial, if his presence is specifically
ordered by the court for purposes of
identification (Sec. l[c], Rule 115, Rules of
Court).
3. The waiver of the right of the accused to
be present at the trial may be inferred from
his absence without justifiable cause
provided he had prior notice of the said trial
(Sec. l[c], Rule 115, Rules of Court).
4. In case the accused is under custody and
he escapes, his act shall be deemed to be a
waiver to be present on all subsequent trial
dates until custody over him is regained (Sec.
lie], Rule 115, Rules of Court).
5. If the accused is absent during the trial
after his arraignment, trial may proceed
despite his absence provided that he has
been duly notified of the trial and his failure
to appear is unjustified (Sec. 14[2], Art. Ill,
1987 Constitution of the Philippines).
6. When the accused filed a motion for leave
to file a demurrer to evidence which was
granted by the trial court, and the demurrer
was eventually denied the trial court should
give the accused the opportunity to present
his evidence. To be denied the opportunity
to be heard is procedurally unfair and a
miscarriage of justice (People v. Alcanzado,
428 SCRA 681). Be it noted that under Sec.
23 [2nd par.] of Rule 119, "If the court denies
the demurrer to evidence filed with leave of
court, the accused may adduce evidence in
his defense."
The right to testify as a witness
1. The accused has the right to testify as a
witness in his own behalf but subject to
cross-examination on matters covered by
the direct examination (Sec. l[d], Rule 115,
Rules of Court).
2. The questions that may be asked of the
accused in a cross-examination is limited to
the matters covered by the direct
examination. This is in contrast to the much
wider scope of the cross-examination of an
ordinary witness (who is not the accused).
Under Sec. 6 of Rule 132, the witness may be
cross-examined by the adverse party not
only as to any matter stated in the direct
examination or those connected with the
matters stated in the direct examination but
the cross examiner is given "sufficient
fullness and freedom" to ask questions that
would test the accuracy and truthfulness of
the witness, his freedom from interest or
bias, or the reverse. The witness may even
be asked questions for the purpose of
eliciting all important facts bearing upon the
issue even if they were not covered by his
direct examination as long as the question
has relevance to the issues of the case.
3. If the accused does not want to testify in
his behalf and choses to remain silent, his
silence "shall not in any manner prejudice
him" (Sec. l[d], Rule 115, Rules of Court).
The right to confront and cross-examine the
witnesses against him
1. The right to confront the witnesses against
him and cross-examine them are basic
constitutional rights embodied in Sec. 14 (2)
of Art. Ill of the Philippine Constitution.
2. The cross-examination of a witness is
essential to test his or her accuracy, expose
falsehoods or half-truths, uncover the truth
which rehearsed direct examination
testimonies may successfully suppress, and
demonstrate inconsistencies in substantial
matters which create reasonable doubt as to
the guilt of the accused and thus give
substance to the constitutional right of the
accused to confront the witnesses against
him (People v. Ortillas, 428 SCRA 659).
3. The right of a party to confront and cross-
examine opposing witnesses in a judicial
litigation, be it criminal or civil in nature, or
in proceedings before administrative
tribunals with quasi-judicial powers, is a
fundamental right which is part of due
process.
It is, however, equally true that the right is a
personal one which may be waived expressly
or impliedly by conduct amounting to a
renunciation of the right of cross-
examination. Thus, where a party has had
the opportunity to cross-examine a witness
but failed to avail himself of it, he necessarily
forfeits the right to cross-examine and the
testimony given on direct examination of the
witness will be received or allowed to remain
in the record (Equitable PCI Banking
Corporation v. RCBC Capital Corporation,
G.R. No. 182248, December 18, 2008; People
v. Abatayo, 433 SCRA 562). The waiver to cross-
examine may take various forms but
jurisprudence suggests that a waiver may occur
when the party fails to cross-examine the
witnesses against him despite opportunity to do
so.
Thus, it was held that where a party has had the
opportunity to cross examine a witness but failed
to avail himself of it, he necessarily forfeits the
right to cross-examine and the testimony given
on direct examination of the witness will be
received or allowed to remain in the record
(Vertudes v. Buenaflor, 478 SCRA 210) because
the right to cross- examination requires not
really an actual cross-examination but merely an
opportunity to exercise the right to cross
examine if desired (People v. Escote, Jr., 400
SCRA 603).
4. Under the present Rules of Criminal
Procedure, the right of confrontation does not
apply in a preliminary investigation. The
investigating officer during preliminary
investigation may set a hearing if there are facts
and issues to be clarified from a party or witness.
However, while the parties are allowed to be
present at the hearing, they are "without the
right to examine or cross-examine. They may,
however, submit to the investigating officer
questions which may be asked to the party or
witness concerned" (Sec. 3[e], Rule 112, Rules of
Court).
5. Where the adverse party is deprived of the
right to cross-examine the persons who
executed the affidavits, said affidavits are
generally rejected for being hearsay (Estrella v.
Robles, Jr., 538 SCRA 60).
In the absence of a cross-examination, the direct
examination of the witness should be expunged
from the records. If the witness is the lone
witness, the trial court would not have a basis to
deny a demurrer to evidence (People v. Ortillas,
428 SCRA 659).
6. If one is deprived of the opportunity to cross-
examine without fault on his part, it is generally
held that he is entitled to have the direct
examination stricken from the record (People v.
Sefieris, 99 SCRA 92).
Right to use testimony of a deceased witness
1. Either party (the prosecution or the defense),
may utilize as part of its evidence the testimony
of a witness who is deceased, out of or cannot
with due diligence be found in the Philippines,
unavailable or otherwise unable to testify, given
in another case or proceeding, judicial or
administrative, provided they involve the same
parties and subject matter and the adverse party
had the opportunity to cross-examine him (Sec.
l[f], Rule 115, Rules of Court).
2. A similar provision is found under the Rules of
Evidence, as an exception to the rule which bars
hearsay evidence. Thus, "The testimony or
deposition of a witness deceased or unable to
testify, given in a former case or proceeding,
judicial or administrative, involving the same
parties and subject matter, may be given in
evidence against the adverse party who had the unassigned error will not be considered by
opportunity to cross-examine him" (Sec. 47, Rule the appellate court unless such error affects
130, Rules of Court). the jurisdiction of the court, affects the
validity of the judgment appealed from, or
For the provision in Rule 130 to apply the
the error is closely related to or dependent
following requisites must be satisfied:
upon the assigned error properly argued in
(a) the witness is dead or unable to testify; (b) his
testimony or deposition was given in a former the brief, or when the error is simply plain or
case or proceeding, judicial or administrative clerical (Sec. 8, Rule 51, Rules of Court).
between the same parties or representing the 3. An established rule in appellate review is
same interests; (c) the former case involved the that the trial court's findings, its assessment
same subject as that in the present case, of the credibility of the witnesses and the
although on different causes of action; (d) the probative weight of their testimonies, as well
issue testified to by the witness in the former as the conclusions drawn from the actual
trial is the same issue involved in the present findings, are accorded respect, if not
case; and (e) the adverse party had an conclusive effect (People v. Casta, 565 SCRA
opportunity to cross-examine the witness in the
341) unless there appears in the record some
former case (Samalio v. Court of Appeals, 454
facts or circumstances of weight and
SCRA 462).
influence which have been
overlooked and, if considered, would affect
the result (People v. Sison, 555 SCRA 156;
Right to compulsory process
People v. Tormis, 574 SCRA 903).
Generally, the findings of the trial court
1. This right may be invoked by the accused
relative to the credibility of the witness are
to secure the attendance of witnesses and
normally respected and not disturbed on
the production of witnesses in his behalf.
appeal (People v. Coja, 555 SCRA 176).
This is a constitutional right embodied in Sec.
14(2), Art. Ill of the Bill of Rights.
2. In connection with this right, the accused
may move the court for the issuance of a
subpoena ad testificandum or a subpoena
duces tecum pursuant to the provisions of
Rule 21 of the Rules of Court.

In case of the unjustified failure of the

witness to comply, the court or judge issuing
the subpoena, upon proof of the service of
such subpoena and proof of his failure to
attend, may issue a warrant for his arrest
(Sec. 8, Rule 21, Rules of Court).

Right to appeal

1. In all criminal prosecutions, the accused

shall have the right to appeal in the manner
prescribed by law (Hilario v. People, 551
SCRA 191; Sec. l[i], Rule 115, Rules of Court).
2. An appeal in a criminal case opens the
entire case for review and the appellate
court may correct even unassigned errors
(Dico v. Court of Appeals, G.R. No. 141669,
February 28, 2005; Guy v. People, G.R. Nos.
166794-96, March 20, 2009; People v.
Montinola, 543 SCRA 412; People v.
Jabiniax), Jr., 553 SCRA 769; Lao v. People,
556 SCRA 120; People v. Tambis, 560 SCRA
343).

The above rule is in contrast to the rule in a

civil case. In a civil case, as a rule, an