And Justice For All

Position: Revelation of Kirkland cannot be used against Judge Fleming

Action that may be taken by the prosecution

In the facts of the case against Judge Fleming, notwithstanding the inadmissibility of Arthur
Kirkland’s revelation during the trial, circumstantial evidence, physical evidence, and the testimony of the
witness may be may be used against the defendant. It has been held by the Supreme Court that in rape
cases, the accused may be convicted on the sole basis of the testimony if credible.

“There is no conclusive evidence of penetration of the genital organ of the victim, the trial court
relied on the testimony of Dr. Zamora when he "categorically declared that the findings in the vulva does
not give a concrete disclosure of penetration. As a matter of fact, he tossed back to the offended party
the answer as to whether or not there actually was penetration." The alleged variance between the
testimony of the victim and the medical certificate does not exist. On the contrary, it is stated in the
medical certificate that the vulva was erythematous (which means marked by abnormal redness of the
skin due to capillary congestion, as in inflammation) and tender. It bears emphasis that Dr. Zamora did
not rule out penetration of the genital organ of the victim. He merely testified that there was uncertainty
whether or not there was penetration. Anent this testimony, the victim positively testified that there was
penetration, even if only partially. The fact is that in a prosecution for rape, the accused may be convicted
even on the sole basis of the victim's testimony if credible (People v. Tabago, G.R. No. 69778, November
8, 1988, 167 SCRA 65; People v. Aragona, G.R. No. L-43752, September 19, 1985, 138 SCRA 569; People v.
Taduyo G.R. Nos. L-3792829, September 29, 1987, 154 SCRA 349). Moreover, Dr. Zamora's testimony is
merely corroborative and is not an indispensable element in the prosecution of this case (People v.
Alfonso, supra). (People v. Orita, G.R. No. 88724, [April 3, 1990], 262 PHIL 963-979)

Secrecy is the nature of rape where only the offender and the offended party are the ones who have
knowledge of it. It cannot be helped that the only witness to the crime is the victim itself. Despite being
the sole witness, the victim’s testimony may be corroborated by physical evidences found when she
underwent physical examination. When physical evidence runs counter to testimonial evidence,
conclusions as to physical evidence must prevail. Physical evidence is that mute but eloquent
manifestation of truth which rate (sic) high in our hierarchy of trustworthy evidence. (People v. Asuncion
y Villadus, G.R. No. 136779, [September 7, 2001], 417 PHIL 190-208)

Thus, the lone testimony of the witness and physical evidence may be used against the accused.

It is worthy to note that the revelation of the defense counsel, Arthur Kirkland, as a testimonial
evidence is inadmissible as provided in Section 24 of Rules of Evidence for Disqualification by reason of
privileged communication where it states the following persons who cannot testify as to matters learned
in confidence. Said the following:

xxx (b)An attorney cannot, without the consent of his client, be examined as to any communication made
by the client to him, or his advice given thereon in the course of, or with a view to, professional
employment, nor can an attorney's secretary, stenographer, or clerk be examined, without the consent
of the client and his employer, concerning any fact the knowledge of which has been acquired in such
capacity; xxx”
 However, even though there is no substantiating evidence to prove the guilt of Judge Fleming,
accused on the charged information on rape against him, the lone testimony of the victim for such if
credible be the basis for rendering judgement as supported by the case laws mentioned above. In
Philippine jurisprudence, it is well settled rule that the testimony of a single witness may be sufficient to
produce a conviction, if the same appears to be trustworthy and reliable. If credible and convincing, that
alone would be sufficient to convict the accused. No law or rule requires the corroboration of the
testimony of a single witness in a rape case.

As for the action shown by the attorney-at-law, he could be punished by law as provided in Art.
209 of the Revised Penal Code for,”xxx any malicious breach of professional duty or of inexcusable
negligence or ignorance, shall prejudice his client, or reveal any of the secrets of the latter learned by him
in his professional capacity. xxx”

However, above mentioned criminal sanction for unprofessional conduct of an attorney is without
prejudice to proper administrative action, such as disbarment or suspension of attorneys particularly
provided in the Code of Professional Responsibility Rule 15.02 where “A lawyer shall be bound by the rule
on privilege communication in respect of matters disclosed to him by a prospective client. Also, as
provided by Rule 21.01, “A lawyer shall not reveal the confidences or secrets of his client except: a) when
authorized by the client after acquainting him of the consequences of the disclosure; b) when required by
law; c) when necessary to collect his fees or to defend himself, his employees or associates or by judicial
action. “

These sanctions above quoted must be exercised with great caution in accordance with a clear
and convincing evidence that be reviewed by the Court. Only in a clear and convincing case of misconduct
and betrayal that seriously affects the standing and the character of the bar will these be imposed as a
penalty.

Therefore, after agreeing to take up the cause of a client, a lawyer owes fidelity to both cause and
client. Their failure to do so constitutes professional misconduct so in any event, they must exert all effort
to protect their client's interest within the bounds of law. If much is demanded from an attorney, it is
because the entrusted privilege to practice law carries with it correlative duties not only to the client but
also to the court, to the bar, and to the public.

Elsewise stated, he owes entire devotion to the interest of his client, warm zeal in the
maintenance and defense of his client’s rights, and the exertion of his utmost learning and ability to the
end that nothing be taken or withheld from his client, saved by the rules of law legally applied. This simply
means that his client is entitled to the benefit of any and every remedy and defense that is authorized by
the law of the land and he may expect his lawyer to assert every such remedy or defense. (Tan v. Lapak,
G.R. No. 93707, [January 23, 2001], 350 SCRA 74)