...unravelling the mystery behind Rule 126 Section 8...

Rule 126 Section 8 provides that: No search of a house, room, or any other premises shall be made except in the presence of the lawful occupant thereof or any member of his family or in the absence of the latter, two witnesses of sufficient age and discretion residing in the same locality.

Whether or not the requirement sufficient age and discretion is applicable to the member of the family of lawful occupant.

Rule 130 Section 21b, in relation to Section 20, of the Rules of Court is applicable in determining whether a minor can be lawfully considered as a witness in a search of a house conducted by police agents.

Rule 130 Section 20: Except as provided in the next succeeding section, all persons who can perceive, and perceiving, can make known their perception to others, may be witnesses... Rule 130 Section 21: The following persons cannot be witnesses: ... (b) Children whose mental maturity is such as to render them incapable of perceiving the facts respecting which they are examined and of relating them truthfully.

Rule 130 is the applicable rule in considering what sorts of evidence are admissible in the litigation of a case. Sections 20 and 21b shows the qualifications of witnesses in a testimonial evidence. Indeed, since both Section 8 of Rule 126 and Rule 130 relate to the admissibility of evidence, then the rule on qualification of the child witness in the latter rule could be applicable.

... any child, regardless of age, can be a competent witness if they meet the following criteria: (a) capacity of observation, (b) capacity of recollection, and (c) capacity of communication. People v. Galas, decided by the
Supreme Court on September 24, 1996

ACT/OMISSION
1) random, unpredictable, beyond the controls of persons other than the perpetrators 2) Some acts, particularly crimes, can be easily remembered because they are very visual and very frightening.

SEARCH OF A HOUSE
1) Within the controls of the police agents (they can choose the witnesses). 2) Cannot be as easily remembered because this act is not very visual in nature and is not as shocking as some of the crimes

ACT/OMISSION
3) Articles that may be the subject of the act or omission may not be so specific. 4) It is the trial judge who determines the admissibility of a child witness US v. Buncad, 1913

SEARCH OF A HOUSE
3) Some articles in a search of a house are very specific. 4) Police officers can determine what kind of person can witness the search

There is a DEARTH in the number of cases involving the very issue on hand. In fact, after days and weeks of searching in Lex Libris and even in Westlaw, I unfortunately found NONE...

It is customary that parents do not leave their children alone in their homes without a grownup with them. Thus, this mere fact already diminishes the possibility that police agents would search a house without the presence of anybody but a child...

In order to insure that the execution of the warrant will be fair and reasonable, and in order to insure that the officer conducting the search shall not exceed his authority or use unnecessary severity in executing the search warrant, as well as for the officers own protection against unjust accusations, it is required that the search be conducted in the presence of the lawful occupant of the place to be searched, or any member of his family, or in the absence, in the presence of two witnesses of sufficient age and discretion residing in the same locality...

So that the execution of the warrant will be fair and reasonable... 2) So that the officer conducting the search shall not... a) ...exceed his authority OR b) ...use unnecessary severity 3) So that the officer will be protected against unjust accusations...
1)

Rule 126 Sec 8 (1985) Rule 126 Sec 7 (1975)

Rule 122 Sec 7 (1964)

PRESENT RULE

RULE 122 SEC 7

No search of a house, room, or any other premises shall be made except in the presence of the lawful occupant thereof or any member of his family or in the absence of the latter, two witnesses of sufficient age and discretion residing in the same locality.

...The former rule (Rule 122, Sec. 7) required the presence of two competent witnesses. - from Ambrosio Padillas Commentary (1978 Ed., p.1021)

Luis B. Reyes Commentary: ...This particular amendment to the Rules was made to conform the provision to the present Article (Art. 130 of RPC) and was introduced to address the confusion brought about by differences in the law as found in the Rules of Court and the Revised Penal Code concerning witnesses to a search... 2 Reyes 75, 2008 Edition

RULE 126 SECTION 8

ARTICLE 130

No search of a house, room, or any other premises shall be made except in the presence of the lawful occupant thereof or any member of his family or in the absence of the latter, two witnesses of sufficient age and discretion residing in the same locality.

The penalty of arresto mayor in its medium and maximum periods shall be imposed upon a public officer or employee who, in cases where a search is proper, shall search a domicile, papers or other belongings of any person, in the absence of the latter, any member of his family, or in their default, without the presence of two witnesses residing in the same locality.

Rule 126 Sec 8

Any member of the family 2 witnesses of sufficient age and discretion residing in the same locality Effect: Inadmissibility of evidence

Rule 122 Sec 7

2 competent witnesses

Article 130, RPC

Any member of the family 2 witnesses residing in the same locality Effect: Officer will be imprisoned.

Effect: Inadmissibility of evidence

The clause sufficient age and discretion was added to the present rule and therefore, it was intentionally and deliberately added by the Committee on the Revision of the Rules of Court. The mere fact that it was added could mean that it was intended by the Committee on the Revision of the Rules of Court that the same clause be not applicable to the clause any member of the family. However, experiences of previous justices dictate that it is not always the case...

Both the Supreme Court Library and the UP Law Library do not have a copy of the Minutes of the said committee... making it almost impossible for any prudent person to find out whether the clause sufficient age and discretion is applicable to any member of the family without any reasonable doubt. The Supreme Court Librarian said that the only people who might have a copy of the said Minutes are the Committee Members themselves... Prof. Antonio Santos, the Librarian of this College, remarked, ...eh nasan na yung mga committee? Pwedeng patay na!

Capacity to Observe; Capacity to Recollect; Capacity to Communicate

Absence of the clause sufficient age and discretion to any member of the family

Fairness of search; prevention of abuse by officer; avoidance of unjust accusations

With the absence of the clause sufficient age and discretion in any member of the family could mean that indeed, any member of the family can be a witness to a search. However, common sense dictates that since the requirements were created to insure a fair and reasonable search to prevent police officers from abusing their rights and also to prevent the lawful occupant from making unjust accusations against the police, there must be a line to be drawn somewhere...

Meanwhile, the standards of perception such as Capacity to Observe, Capacity to Recollect and Capacity to Communicate may be too vague or too broad to be considered as a good answer. But if vagueness or broadness is the problem, the solution must be to specify or to heighten the standards... Furthermore, the Committee members obvious intention to include sufficient age and discretion in the 2-witness rule shows us that there must have been an intention on the part of the Committee to heighten the standard...

The standards of perception in the Galas case was actually taken from Wigmore on Evidence, Volume 2. The said book did not explain but it cited the following cases: Wade v. State, Alabama 1874; Kelly v. State, Alabama 1883; and People v. Delaney, California, 1921.

...intelligent enough to observe... Case is about an 8-year old girl raped by an adult and the controversy on hand was whether or not the testimony by the victim is admissible.

... The requirement that the child shall be able to truly relate the impressions that he may have received implies, not alone a truth-telling disposition, but a memory sufficiently strong and retentive to be able to recollect faithfully the objective facts or the mental impressions originally created thereby... If the infant be of sufficient years and discretion to know what occurs, to remember it, and to give an intelligible account of it, and, when examined, comprehends the danger and impiety of falsehood, he is a competent witness

... THE REQUIREMENT OF OUR STATUTE IS NOT ONE OF AGE BUT OF UNDERSTANDING. through the ability of the child to narrate, considering also such physical manifestations as may accompany narration, gestures, play of features, and the other indicia which will always aid in determining mental dullness or alertness.

MEANWHILE THE BOY UNDOUBTEDLY HEARD

HIS PARENTS TALK ABOUT THE CASE AND ITS
DISTRESSING FACTS. THE FORCE OF SUGGESTION, ALWAYS STRONG, IS PARTICULARLY POTENT WITH THE IMPRESSIONABLE AND PLASTIC MIND OF CHILDHOOD ... THE REPETITION OF SUPPOSED FACTS IN THE PRESENCE OF A CHILD OFTEN CREATES A MENTAL IMPRESSION OR CONCEPT THAT HAS NO OBJECTIVE REALITY IN ANY ACTUALLY EXISTING FACT

Standards of Perception Heightened Standards of Perception: Capacity to observe, recall and communicate very specific acts and articles seized. The child must not be susceptible to forces of suggestion that could induce him to testify inaccurately

Substantial Distinctions

Reasons for the rule

It would be advisable that the police officer must choose a child who, they believe, is a keen observant such as a child entrusted by its parents to take care of the house because its parents believe that such child will see to it that nothing bad happens to the house. In my belief and experiences, such child is at oftentimes observant of the things that happen around him in such a way that he might qualify to the said standards (i.e., the child must have the capacity to observe, recall and communicate very specific acts and articles seized. The child must not be susceptible to forces of suggestion that could induce him to testify inaccurately.)

Police officers, in accepting a member of the family, must apply the heightened standards of perception to the factual circumstances. For instance, if the article to be seized is a set of financial statements or books of account, it would be advisable for the police officers to choose a witness who would be able to remember these, such as a matured person who understands what these articles are. A child, even if nearing the age of majority, might not be able to remember these specific articles. On the other hand, a mature person who has, in his previous years, took hold of the same items, might remember these items more easily. If the article to be seized is marijuana, whose smell and looks can be easily remembered by a child, then a child may be chosen as a witness.

The clause sufficient age and discretion does not refer to age of majority and discretion for it was taken from Kelly v. State, Alabama 1883, which is actually equivalent to the standards of perception. From the Delaney case, age is not important. What matters more is the level of understanding. The standards of perception must be applied to factual circumstances and since a conduct of search has features so distinct from other acts, it would be advisable to specify and heighten the standards. Although the provision in issue speaks clearly that the 2 witnesses shall be applied only if none of the members of the family is present, we must not forget that the spirit and intent of the law governs over its strict literal interpretation.