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administrative, involving the same parties and

subject matter, the ad- verse party having the

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

It is, however, equally true that the right is a Right to use testimony of a deceased witness
personal one which may be waived expressly 1. Either party (the prosecution or the defense),
or impliedly by conduct amounting to a may utilize as part of its evidence the testimony
renunciation of the right of cross- of a witness who is deceased, out of or cannot
examination. Thus, where a party has had with due diligence be found in the Philippines,
the opportunity to cross-examine a witness unavailable or otherwise unable to testify, given
but failed to avail himself of it, he necessarily in another case or proceeding, judicial or
administrative, provided they involve the same
forfeits the right to cross-examine and the
parties and subject matter and the adverse party
testimony given on direct examination of the
had the opportunity to cross-examine him (Sec.
witness will be received or allowed to remain l[f], Rule 115, Rules of Court).
in the record (Equitable PCI Banking 2. A similar provision is found under the Rules of
Corporation v. RCBC Capital Corporation, Evidence, as an exception to the rule which bars
G.R. No. 182248, December 18, 2008; People hearsay evidence. Thus, "The testimony or
v. Abatayo, 433 SCRA 562). The waiver to cross- deposition of a witness deceased or unable to
examine may take various forms but testify, given in a former case or proceeding,
jurisprudence suggests that a waiver may occur judicial or administrative, involving the same
when the party fails to cross-examine the 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

The above rule is in contrast to the rule in a

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