Module Consti2 Finals

ANNOTATION
PRESUMPTION OF INNOCENCE
By
ALICIA G. DECANO*
The defense only raised a singular issue in the above entitled case which runs:
“The Court A Quo Gravely Erred in Convicting the Accused-Appellant of the crime
charged despite the failure of the prosecution to overthrow the presumption of Innocence in
his favor.”
PREFATORY STATEMENT
It is generally held that crimes must be penalized and wrongdoing must be

repressed. It should not be taken though that a person innocent but belonging to a
minority group or otherwise without influence should be mistakenly subjected to
prosecution. Even when a misdeed has been committed, the individual is not to be
denied the opportunity of submitting what defense he could legitimately avail of. The
rights assured of an accused therefore, are intended for his protection. He is relieved
of the apprehension that once indicted, conviction must automatically follow. Justice
Hermogenes Concepcion, Jr. in the cases of Morales vs. Enrile, et al., and Moncupa
vs. Enrile, et al., of which he is the ponente, said: “Our machinery of Justice should be
geared towards helping and protecting the poor among us. Not knowing their rights,
not having the means to pay for the services of a lawyer, possessing no influence
whatsoever, they are invariably the victims of injustice.”
_______________
* Professorial Lecturer IV and Consultant (Law and Political Science Cluster, UST Graduate School)
and Dean, College of Law & Law Professor, Pan Pacific University North Philippines (PUNP), Urdaneta
City.
904
904 SUPREME COURT REPORTS ANNOTATED
Presumption of Innocence
The affluent can take care of themselves. They are better aware of their rights,
they have influence, and they can engage the services of the best counsel. But the
poor can only pray to God and hope to find relief in the system of justice established
by their government.” Furthermore, as enunciated in the case of Bustamante vs.
Maceren, “the rights of an accused provided in the Constitution attest to a belief,
underlying our governmental system that public interest is thereby promoted. It is of
course desirable that crimes should not go unpunished, but everyone fortunate
enough to be proceeded against must be shown to be guilty thereof. What is more, the
state should not subject him to greater and other punishment than the law allows.
For Justice Laurel, “the constellation of constitutional rights which an accused is
vouchsafed is ‘sacred’ and not a mere ‘excrescence.’ There should be a strict regard
for them.” That is the view of Cushman who said: “there is no more accurate index
of a nation’s regard for civil liberty than is to be found in the laws and procedure
which deals with person accused of crime.” Pursuant to the provisions of the
constitution, every person accused of a crime is afforded all the rights in order that
he may be given the opportunity to rebut all the charges leveled against him.
PRESUMPTON OF INNOCENCE
The legal basis for this presumption is found in Article III, Section 14, No. 2 of the
Philippine Constitution which reads:
“In all criminal prosecutions, the accused shall be presumed innocent until the contrary
is proved and shall enjoy the right to be heard by himself and counsel, to be informed of the
nature and cause of the accusation against him, to have a speedy, public and impartial trial,
to meet witnesses face to face and to have compulsory process to secure the attendance of
witnesses and the production of evidence in his behalf. However, after arraignment, trial may
proceed notwithstanding the absence of the accused provided that he had been duly notified
and his failure to appear is justified.”
Accusation is not, according to the fundamental law, synonymous with guilt. It is
incumbent on the prosecution to demonstrate905
VOL. 569, 905
that culpability lies. The guilt of the accused must be shown beyond reasonable doubt
and the burden of proof lies in the prosecution.
There is however, no constitutional objection to the passage of a law in criminal
prosecution, that the presumption of innocence may be overcome by a contrary
presumption founded on the experience of human conduct that when certain facts
have been proved, they shall be prima facie evidence of the existence of the main fact
in question.
RELEVANT CASES
1. The case of Sonny Zarraga vs. People of the Philippines, 484 SCRA 639 [2006],
shows the process or procedure of rebutting this presumption of innocence in favor of
the accused. The Supreme Court ruled:
“x x x The law presumes that an accused in a criminal prosecution is innocent until the
contrary is proved. This basic constitutional principle is fleshed out by procedural rules which
place on the prosecution the burden of proving that an accused is guilty of the offense charged
by proof beyond reasonable doubt. Whether the degree of proof has been met is largely left
for the trial courts to determine. However, an appeal throws the whole case open for review
such that the Court may, and generally does, look into the entire records if only to ensure
that no fact of weight or substance has been overlooked, misapprehended or misapplied by
the trial court. x x x”
2. People vs. Villaviray and Eden Gutierrez, 262 SCRA 13, [1996], elucidates the
jurisprudence that the presumption that official duty has been regularly performed
cannot prevail over the constitutional presumption of innocence accorded to an
accused.
The Supreme Court held:
“x x x All these circumstances taken together fail to overthrow the presumption of innocence
in favor of the accused-appellants. It is pointless to agree that there is no motive on the part
of the policemen to impute such a grave crime to the accused when the sale of marijuana has
not been906
adequately established. It is likewise irrelevant to dwell on the lack of motive by the
Barangay Chairman Teodoro Evangelista, in concocting a story and testifying against the
accused because the fact remains that their guilt has not been proven beyond reasonable
doubt x x x.”
The Supreme Court continued:
“Time and again, we have stressed that the presumption that official duty has been
regularly performed cannot prevail over the constitutional presumption of innocence
accorded to an accused. To rebut the presumption of innocence, not only is the burden
squarely laid on the prosecution but it must do so on the strength of its own evidence without
relying upon or even invoking what it may claim is a weakness of the defense. x x x”
3. Teresita P. Buenaventura vs. People of the Philippines, 493 SCRA 223 [2006],
emphasizes the manner of overcoming presumption of innocence. The Supreme Court
pronounced:
“x x x Basic is the doctrine that proof beyond reasonable doubt is needed to overcome
presumption of evidence. The guilt of the accused must be proved beyond reasonable doubt,
otherwise, the Court is left without any other recourse but to rule acquittal. Courts should
be guided by the principle that it would be better to set free ten men who might be probably
guilty of the crime charged than to convict one innocent man for a crime he did not commit.
In this instance, while there are accusing fingers pointing to petitioner as the perpetrator of
the crime, the circumstances obtaining in this case leave some probability that she is
innocent. x x x”
4. In People vs. William Ong, 432 SCRA 470 [2004], the Supreme Court
reiterated the doctrine enunciated in People vs. Villaviray, supra, when it decreed:
“x x x For, the courts could not merely rely on but must apply with studied restraint the
presumption of regularity in the performance of official duty by law enforcement agencies.
This presumption should not by itself prevail over the presumption of innocence and the
constitutionally protected rights of the individual. It is the duty of courts to preserve the
purity of their own temple from the prostitution of the criminal law through lawless
enforcement. Courts should not allow themselves to be907
VOL. 569, 907
used as instruments of abuse and injustice lest innocent persons are made to suffer the
unusually severE penalties for drug offenses. x x x”
In the case of Dizon vs. People of the Philippines, 490 SCRA 593 [2006] the Highest
Court theorized:
“x x x The foundation of the ruling of acquittal is reasonable doubt, which simply means
that the prosecution’s evidence was not sufficient to sustain the guilt of the petitioner beyond
the point of moral certainty that convinces and satisfies the reason and the conscience of
those who are to act upon it. It is such proof to the satisfaction if the court, keeping in mind
the presumption of innocence, as precludes every reasonable hypothesis except that which it
is given to support it. An acquittal based on reasonable doubt will prosper even though the
accused’s innocence may be doubted, for a criminal conviction rests on the strength of the
evidence of the prosecution and not on the weakness of the defense. x x x”
5. The case of Ariola vs. Sandiganbayan, 494 SCRA 344 [2006], strengthens the
view that presumption of innocence in favor of the accused should be upheld. The
Highest Tribunal mandated:
“x x x In all criminal cases, mere speculations cannot substitute for proof in establishing
the guilt of the accused. When guilt is not proven with moral certainty, it has been our policy
of long standing that the presumption of innocence must be favored, and exoneration granted
as a matter of right. x x x”
6. In the case of Eugelio Barawid vs. People of the Philippines, 506 SCRA 237
[2006], the Highest Court of the Land articulated:
“x x x In all criminal prosecutions, the accused shall be presumed innocent until the
contrary is proved. To justify the conviction of the accused, the prosecution must adduce the
quantum of evidence sufficient to overcome the constitutional presumption of innocence. The
prosecution must stand or fall on its evidence and cannot draw strength from the weakness
of the evidence of the accused. Accordingly, when the guilt of the accused-appellants have not
been proven with moral certainty, it is our policy of long standing that their presumption of
innocence must be favored and their exoneration be granted as a matter of right. x x x”
908
7. In the People of the Philippine vs. Ortega, 528 SCRA 751, the Supreme Court
stressed:
“x x x It is the burden of the prosecution to overcome such presumption of innocence by
presenting the quantum of evidence required. Corollarily, the prosecution must rest on its
own merits and must not rely on the weakness of the defense. In fact, if the prosecution fails
to meet the required quantum of evidence, the defense may logically not even present in its
own behalf. In which case, the presumption of innocence shall prevail and hence, the accused
shall be acquitted. However, once the presumption of innocence is overcome, the defense
bears the burden of evidence to show reasonable doubt as to the guilt of the accused.
Reasonable doubt is that doubt engendered by an investigation of the whole proof and an
inability after such investigation to let the mind rest upon the certainty of guilt. Absolute
certainty of guilt is not demanded by the law to convict a criminal charge, but moral certainty
is required as to every proposition of proof requisite to constitute the offense. x x x.”
——o0o——
The Right of Confrontation and Cross-Examination
ANNOTATION
THE RIGHT OF CONFRONTATION AND CROSS-EXAMINATION
By
ALICIA GONZALEZ DECANO *
___________________
Preliminary Statement
The accused Abatayo in this case under annotation, (G.R. No. 139456, July 7,
2004, 433 SCRA 562) claimed in his appeal that “The Trial Court erred in not
ordering the striking out of the entire testimony of the prosecution witness Juanito
Gutang anent the crime charged in view of his unjustified failure to allow himself to
be further cross-examined pursuant to its order dated January 23, 1995.” He strongly
argues that “his constitutional and procedural right to confront the witness against
him was thereby impaired.” On this score, this writer wishes to expound further on
the issue as to whether or not the right of confrontation and cross-examination is
waivable.
Before delving deeper into the intricacies of the issue, the writer wishes to give a
definition of cross-examination and confrontation.
Cross-examination is the examination of a witness by the party opposed to the
party who called such witness, the latter party having examined or having been
entitled to examine, such witness in chief. (Brown vs. Chevrolet Motor Co. (1919), 39
Cal. App. 738, cited by R.J. Francisco, Pleadings and Practice II, 1990, p. 318.)
Confrontation according to the Webster’s Dictionary (2000 edition p. 298) means
standing or meeting face to face; facing or opposing boldly, defiantly or and
antagonistically.
_______________
* Law Professor, University of Pangasinan, Consultant and Professorial Lecturer, UST Graduate School,
Law.
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VOL. 433, JULY 7, 2004 585
The Rule
Under Article III, Section 14 (2) of the 1987 Constitution, the accused has the right
to meet the witnesses against him face to face. Rule 115 Section 1(f) of the Rules of
Court provides:
“Section 1. Right of accused at the trial.—In all criminal prosecutions,
the accused shall be entitled to the following rights:
1. “(a)x x x
2. (b)x x x
3. (c)x x x
4. (d)x x x
5. (e)x x x
6. (f)to confront and cross examine the witnesses against him at the trial. Either
party may utilize as part of its evidence the testimony of a witness who is
deceased, out of or can not with due diligence be found in the Philippines,
unavailable or otherwise unable to testify, given in another case or
proceeding, judicial or administrative, involving the same parties and subject
matter, the adverse party having had the opportunity to cross-examine him.
x x x”
The Issue: Whether or not the Right of Confrontation and cross examination is
waivable.
The right to cross-examine. Cross-examination of a witness is the absolute right,
not the mere privilege, of the party, against whom he is called, and with regard to
the accused it is a right granted by the constitution which provides “that
the accused shall enjoy the right to meet the witnesses face to face.”
If by accident or design, cross-examination of a witness is prevented, his direct
examination is rendered incompetent. But if the opposite party has had the
opportunity of cross-examining but has not availed himself of it, the direct
examination will be received. (Francisco, Trial Technique and Practice Court, Volume
II, pp. 530-531).
The case under annotation cited the cases of Savory Luncheonette vs. Lakas ng
Manggagawang Pilipino (62 SCRA 258 [1975]); Ortigas, Jr. vs. Lufthansa German
Airlines (64 SCRA 610 [1975] and Fulgador vs. Court of Appeals, 182 SCRA
81 [1990])
1. 1.In the case of Savory Luncheonette vs. Lakas ng Manggagawang Pilipino,

counsel for the respondents moved for the post-
586
1. ponement of the cross examination which was granted on March 7, 1973, but
on such date, counsel for the respondents did not appear and so the cross
examination was reset on March 17, 1973 with the warning from the court
that “should the respondents still fail to cross examination the witness of the
petitioner (Atty. Morabe) the right to cross-examine him will be deemed
waived.” Not heeding this warning, counsel for the defendant for the third
time failed to cross-examine the witness on March 17, 1973, for the reason
that he was not prepared to do so. Accordingly, the cross-examination was
again reset for March 27, 1973 with the order that “in view of the professed
unpreparedness of the representative of the respondents, the Court will give
him one last chance to be ready at the next scheduled hearing. “This warning
notwithstanding, Atty. Amante again failed and refused to conduct the cross-
examination invoking the excuse that he did not have a copy of the transcript
of the direct testimony. For the fifth time and again upon motion of the
counsel for the respondents, the cross-examination was postponed to April 2,
1973 with the reservation by the witness to be cross-examined to challenge
the ruling of the court granting another postponement.
Atty. Morabe, the witness of the petitioner to be cross-examined succumbed to a heart

attack on March 31, 1973. On April 12, 1973, counsel for the respondent moved to
strike out the direct testimony of Atty. Morabe. Petitioner filed an opposition to the
said motion contending that by private respondents’ repeated failure and refusal to
cross-examine despite all the time and opportunity granted by the court, they are
deemed to have waived the same.
“x x x The right of a party to confront and cross-examine opposing witness in a judicial
litigation, be it criminal, or civil in nature, or in proceedings before administrative tribunals
with quasi-judicial powers, is a fundamental right which is part of due process. However, the
right is a personal one which may be waived expressly or impliedly by conduct amounting to
a renunciation of the right of cross-examination. Thus, where a party has had the opportunity
to cross-examine a witness, but failed to avail himself of it, he necessarily forfeits the right
to cross-examine and the testimony given on direct examination of the witness will be
received or allowed to remain in the record.
The conduct of a party which may be construed as an implied waiver of the right to cross-
examine may take various forms. But the common basic principle underlying the application
of the rule on implied waiver is
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VOL. 433, JULY 7, 2004 587
that the party was given the opportunity to confront and cross-examine an opposing witness
but failed to take ad vantage of it for reasons attributable to himself alone. x x x”
1. 2.Ortigas, Jr. plaintiff vs. Lufthansa German Avelino, G.R. No. L-28773, June
30, 1975, 64 SCRA 610) The Supreme Court, in answer to one of the assigned
errors quoted hereunder, ruled:
II
“THE LOWER COURT CONSEQUENTLY ERRED IN ORDERING THE STRIKING FROM THE
RECORDS THE TESTIMONY OF WITNESS IVO LAZARRI AND IN DEEMING THE CASE
SUBMITTED FOR DECISION ON THE EVIDENCE FOR THE PLAINTIFF ALONE.”
“x x x Court may delete or strike off testimony of witness who failed to appear during the
hearing for his cross-examination where the case has been pending for years and witness’s
failure to attend the hearing has not been explained. We reiterate, the case has been pending
for more than three years, with so many postponements, and the least that defendant should
have done to merit favorable action on the part of the trial judge was to be ready with an
explanation of its inability to proceed with the trial, giving the detailed and good reasons
therefore. x x x Moreover, the Rome based witnesses were not the only possible witnesses of
the defendant. To begin with Mr. C.H. Dehio. The IATA Agency Manager, Far East and
Australia, Lufthansa German Air Lines, who, according to the record, had already attended
previous hearings as a prospective witness could have been made to go to court. There is
nothing in the record to show that he was also rendered incapable of doing so. Then, there
could still be local witnesses. It is no excuse that presenting other witnesses would have
disrupted the presentation of defendant’s case, for parties may be allowed to maintain their
own way of presenting their evidence only where this can be done without injury to the
expeditious disposition of the case and the best interest of the administration of justice.
1. 3.Fulgado vs. Court of Appeals, et al. (G.R. No. 61570, February 12, 1990, 182
SCRA 81)
The principal issue in the case at bar is the propriety of the exclusion of the
testimonies given by the now deceased Ruperto Fulgado and his witness, Jose
Fulgado, who has departed for the United States, which resulted in the dismissal of
the complaint. Private respondents maintained that such testimonies are wholly
inadmissible for being hearsay, because respondents were not able to cross-examine
the witness.
588
Petitioners, on the other hand, contend that while the right to cross-examination is
an essential part of due process, the same may however be waived, as the private
respondents have done when they allowed an unreasonable length of time to lapse
from the inception of the opportunity to cross-examine before availing themselves of
said right and likewise when they failed to exhaust other remedies to secure the
exercise of such right.
The Supreme Court ruled: “x x x The principle requiring a testing of testimonial
statements by cross-examination has always been understood as requiring not
necessarily an actual cross-examination, but merely an opportunity to exercise the
right to cross-examine if desired.” (5 Wigmore, Section 1390 p. 114.) cited in the case
of Fulgado vs. Court of Appeals. Thus, the resolutions of the present case which hinge
on whether or not this was an opportunity for cross-examination.
There is no disputing that where there was no such opportunity to cross-examine
and the want of it was caused by the party offering (plaintiff), the testimony should
be stricken out. However, where the failure to obtain cross-examination was
imputable to be cross-examiner’s fault, this lack of cross-examination is no longer a
ground for exclusion according to the general principle that an opportunity, though
waived, will suffice.
The Supreme Court further held:
“x x x The task of recalling a witness for cross-examination is, in law, imposed on the party
who wishes to exercise said right. This is so because the right, being personal and waivable,
the intention to utilize it must be expressed. Silence or failure to assert it on time amount to
a renunciation thereof. Thus, it should be the counsel for the opposing party who should move
to cross-examine plaintiffs witnesses. It is absurd for the plaintiff himself to ask the court to
schedule the cross-examination of his own witnesses because it is not his obligation to ensure
that his deponents are cross-examined. Having presented his witnesses, the burden shifts to
his opponent who must now make the appropriate move. Indeed, the rule of placing the
burden of the case on plaintiff’s shoulders can be construed to extremes as what happen in
the instant proceedings.”
The Supreme Court continued:
“x x x Having had the liberty to cross-examine and having opted not to exercise it, the case is
then the same in effect as if private respondent had actually cross-examined, We therefore
hold that it was gross error for
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VOL. 433, JULY 7, 2004 589
both the trial court and the Appellate Court to dismiss the complaint in Civil Case No. 10256
on the ultimate ground that there was an alleged failure of cross-examination. The wholesale
exclusion of testimonies was too inflexible a solution to the procedural impasse because it
prejudiced the party whose only fault during the entire proceedings was to die before he could
be cross-examined. The prudent alternative should have been to admit direct examination so
far as the loss of cross-examination could have been shown to be not in that instance a
material loss. And more compellingly so in the instant case where it has become evident that
the adverse party was afforded reasonable chance for cross-examination but through his own
fault failed to cross examine the witness.”
“x x x Altogether, the acts of private respondent constitute a waiver, and consequently, a
forfeiture of their right to cross-examination and having failed to make use of this right, the
consequences should rightfully fall on them and not on their adversary.”
Aside from the three (3) civil cases reviewed, a criminal case almost similar to the
case of People vs. Abatayo (supra) is hereby revisited.
In People vs. Dela Cruz, L-28110, March 27, 1974, 56 SCRA 84-91, one of the issues
raised by the appellant Dela Cruz who was convicted of rape was that he was not
accorded the right to cross-examine the complainant.
“x x x It cannot be said that the constitutional right of the accused to meet the witnesses
face to face or the right to confrontation was impaired.
“The fact that the cross-examination of the complainant was not formally terminated is
not an irregularity that would justify a new trial. The right to confront the witness may be
waived by the accused expressly or by implication x x x”
The Supreme Court further held:
“x x x The chief purpose of confrontation is to secure the opportunity for cross-examination x
x x, so that if the opportunity of cross-examination has been secured, the function and test of
confrontation has also been accomplished. (1 Greenleaf on Evidence Par. 163 cited
in Anastacio case). In the instant case, there was not merely confrontation. The counsel for
the accused cross-examined the complaining witness but he waived the right to make
additional cross-examination.”
590
Concluding Statement
The right of confrontation and cross-examination is not an absolute right. There are
instances when this right may be waived as already discussed in the above quoted
civil and criminal cases.
——o0o——
VOL. 520, APRIL 4, 2007 637
The Miranda Doctrine in Philippine Jurisprudence: The Rule
on Self-Incrimination of Persons under Custodial
Investigation
ANNOTATION
THE MIRANDA DOCTRINE IN PHILIPPINE JURISPRUDENCE The Rule on Self-
Incrimination of Persons under Custodial Investigation
By
JORGE R. COQUIA *
————————
1. § I.The Miranda Doctrine, p. 637

2. § II.Loud Protests of Police Agencies and Public Prosecutors, p. 639
3. § III.Principles Set in the Miranda Decision Adopted in the Philippine
Constitution and Legislative Enactments, p. 640
4. § IV.The Extrajudicial Confession of the Accused in People vs.
Rapeza (The Case under Annotation), p. 640
5. § V.The Meaning of Custodial Investigation, p. 641
6. § VI.Right of a Person against Self-Incrimination, p. 641
7. § VII.Right to be Informed, p. 642
8. § VIII.Waiver of Right to Counsel, p. 642
9. § IX.Conclusion, p. 643
————————
§ I. The Miranda Doctrine

Before the decision on the United States’ Supreme Court in Miranda vs. Arizona, 384
US 436 (1966), most courts render
_______________
*Member, Board of Editorial Consultants, Supreme Court Reports Annotated (SCRA).

638
Investigation
convict accused persons mainly based on the extrajudicial confessions. Police
agencies and investigators generally feel satisfied that the crimes they are
investigating are finally solved.
It has been generally observed that extrajudicial confessions are extorted
involuntarily from suspects. Police investigators may have used methods to extort
the confessions which prove later that suspects under police custody were not free to
sign the statements admitting the commission of the crime especially when they were
not assisted by counsel.
The US Supreme Court’s decision in Miranda vs. Arizona, 384 US 436 (1966) was
a landmark decision in the US. To make sure that suspects under police custody are
fully protected especially as to the right of counsel the Miranda Doctrine was followed
in the Philippines as now provided in the Philippine Constitution, and Congressional
Enactments.
Miranda vs. Arizona was a simple case of rape and robbery. On March 2, 1963,
Barbara was on her way home late in the evening from her work in Phoenix, Arizona
when suddenly, a 23-year old Mexican-American, who was later identified as Ernesto
Miranda grabbed her at the point of a bladed instrument and forcibly raped Barbara.
Miranda was arrested and while under police custody he was interrogated and finally
Miranda signed a statement which amounted to a confession of the commission of the
crime. Miranda was prosecuted and convicted in the lower courts.
In reversing the decision, the US Supreme Court ruled that when an individual is
taken into custody or otherwise deprived of his freedom by the authorities and is
subjected to questioning, the privilege against self-incrimination is jeopardized.
Procedural safeguards must be employed to protect the privilege, and unless other
fully effective means are adopted to notify the person of his right of silence and to
assure that the exercise of the right will be scrupulously honored. The following
measures are required namely: He must be warned prior to any questioning that he
has the right to
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VOL. 520, APRIL 4, 2007 639
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remain silent; that anything he says can be used against him in a court of law; that
he has the right to the presence of an attorney, and that if he cannot afford an
attorney, one will be appointed for him prior to any questioning if he so desires.
Opportunity to exercise these rights must be afforded to him throughout the
interrogation. After such warnings have been given, and such opportunity afforded
him, the individual may knowingly and intelligently waive these rights and agree to
answer questions or make a statement. But unless and until such warning and waiver
are demonstrated by the prosecution at trial, no evidence obtained as a result of
interrogation can be used against him.
Because of the nature of the probe, and because of its recurrent significance in
numerous cases, the US Supreme Court discussed the relationship of the Fifth
Amendment privilege to police interrogation without specific concentration on the
facts. “We turn to these facts to consider the application to these cases of the
constitutional principles discussed above. In each instance, we have concluded that
statements were obtained from the defendant under circumstances that did not meet
constitutional standards for protection of the privilege,” said the Court. (Miranda vs.
Arizona, supra)
§ II. Loud Protests of Police Agencies and Public Prosecutors
Loud protests were made by police agencies and public prosecutors upon the
promulgation of the Miranda vs. Arizona decision. The doctrine set in the case will
hamper their tasks in prosecuting criminals. What is more, many people guilty of
crimes will go scot-free even when they have already admitted the commission of the
offense (Corther and Lytle). “Bare in the Desert,” Modern Constitutional Law, p. 158.
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§ III. Principles Set in the Miranda Decision Adopted in the Philippine
Constitution and Legislative Enactments
Article III, Section 12 of the Philippine Constitution now adopts the principles set
in Miranda vs. Arizona, and providing penalties and civil damages for violation.
§ IV. The Extrajudicial Confession of the Accused in People vs. Rapeza (The
Case under Annotation)
Similar to the Miranda case, the accused, one of the suspects in the killing of a man
and a woman in Culion, Palawan was invited by the police for interrogation.
Expressing his willingness to mark a statement, he was brought to the house of the
only lawyer in the town. Since the lawyer could not go to the police station, as he was
suffering from rheumatism, the investigation was conducted in his house. Before
giving his confession, the accused Rapeza was informed of his rights. Rapeza was a
native of Samar and his statement was interpreted in Tagalog admitting his
participation in the crime since he did not know how to read and write, his thumb
mark was affixed on his statement.
During the trial, the accused told a different story saying that he did not know at
all the victims and he had nothing to do with the crime. As a native of Samar, he
transferred to Palawan as a fisherman. He said that he never left the jail when he
was detained. At one time, he was punched on his stomach by the police.
No other witness was presented by the prosecution on the basis of the extrajudicial
confession. The accused was found guilty of the crime of murder. In rendering an
acquittal, the Supreme Court ruled that the accused was not duly informed of his
constitutional rights while in custodial investigation.
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§ V. The Meaning of Custodial Investigation
The Miranda vs. Arizona ruling which broadened the meaning of “custodial
investigation has been adopted in Republic Act No. 7438 to include the practice of
issuing an ‘invitation’ to a person who is investigated in connection with an offense
he is suspected to have committed, without prejudice to the liability of the ‘inviting’
officer for any violation of law.”
Article III, Section 12 of the Philippine Constitution provides for the
comprehensive rights of the accused from the time he is under investigation to
trial.
In People vs. Judge Ayson, 175 SCRA 216 (1989), the Court defined custodial
investigation as any “questioning initiated by law enforcement officers after a person
has been taken into custody or otherwise deprived of his freedom of action in any
significant way.”
§ VI. Right of a Person against Self-Incrimination
The gist of the US Supreme Court ruling in Miranda vs. Arizona is the protection of
any person against selfincrimination if the admission or confession obtained by police
agencies from the suspect, any custodial investigation which does not satisfy the
requirement set by the US court in the Miranda case amounts to the violation of the
right against self-incrimination. It is a right not to be compelled to be a witness
against one’s self. (People vs. Tampus, 96 SCRA 624 [1980])
The rights of the person under custodial investigations are: (1) Any person under
investigation for the commission of an offense shall have the right to be informed of
his right to remain silent and to have competent and independent counsel preferably
of his own choice. If the person cannot afford the services of counsel, he must be
provided with one. These rights cannot be waived except in writing and in the
presence of counsel; (2) No torture, force, violence, threat, intimidation, or any other
means which vitiate the free will shall be used
642
Investigation
against him. Secret detention places, solitary, incommunicado, or other similar forms
of detention are prohibited; (3) Any confession or admission obtained in violation of
this or Section 17 hereof shall be inadmissible in evidence against him; (4) The law
shall provide for penal and civil sanctions for violations of this section as well as
compensation to and rehabilitation of victims of torture or similar practices, and their
families.
§ VII. Right to be Informed
Article III, Section 12 of the Philippine Constitution reads: (1) Any person under
investigation for the commission of an offense shall have the right under investigation
for the commission of an offense to get informed of his right to remain silent and to
have competent and independent counsel preferably of his own choice. If the person
cannot afford the services of counsel, he must be provided with one.
These rights cannot be waived except in writing and in the presence of counsel; (2)
No torture, force, violence, threat, intimidation, or any other means which vitiate the
free will shall be used against him. Secret detention places, solitary, incommunicado,
or other similar forms of detention are prohibited.
§ VIII. Waiver of Right to Counsel
The person being investigated must be informed of his right to counsel. He may waive
such right in the presence of counsel and such waiver must be in writing (Art. III,
Section 12[1]).
Accused was not given independent and competent counsel of his choice.
The accused had no choice because there is only one lawyer in the town who was
even sick of rheumatism and could not go out of his house.
643
VOL. 520, APRIL 4, 2007 643
Investigation
§ IX. Conclusion
In compliance with Article III, Section 12(4) of the Philippine Constitution, Rep. Act
7438 was enacted imposing penalties and civil liabilities to officers who use force,
violence or intimidation to extort extrajudicial confession on persons under custodial
investigation.
There is hardly any officer who has been penalized for violation of Article III,
Section 12(4) which have been reiterated in Rep. Act 7438. Hundreds of decisions
have been rendered by the Supreme Court and lower courts where the persons under
custodial investigation were tortured, forced and intimidated by police investigators.
Usually, court decisions rejected the admission in evidence of said extrajudicial
confessions or have rendered the inadmissible and acquitting the accused.
Practically, nothing was done to penalize or impose sanctions on the police or
investigating officers who used force, violence or intimidation on the accused who
was under custodial investigation.
It should be the duty of the heads of the police agencies or the prosecuting officer
himself to implement RA 7438.
For that matter the acts mentioned in Section 12 of Article III of the Philippine
Constitution are violations of human rights. Almost everybody is talking of
protection of human rights. The Commission on Human Rights itself, a
constitutional body has no means of punishing human rights violators. All that the
Commission on Human Rights (CHR) can do is to investigate
human rights violations but it has no prosecutory powers.
It is for this reason that police agencies continue using brutal methods in extorting
confessions from individuals under their custody as convenient means of solving
crimes.
——o0o——
644
VOL. 266, JANUARY 27, 1997 695
Freedom From Double Jeopardy: A Fundamental
Constitutional Right
ANNOTATION
FREEDOM FROM DOUBLE JEOPARDY: A FUNDAMENTAL CONSTITUTIONAL
RIGHT
By
JOSE AGATON R. SIBAL
________________
1. § I.Origin, p. 695
2. § II.The Rule of Double Jeopardy, p. 696
3. § III.Nature and Scope, p. 697
4. § IV.Requisites of Double Jeopardy, p. 700
5. § V.When Conditions for Jeopardy Attach, p. 700
1. A—A Valid Complaint or Information, p. 701
1. 1.Primary Basis of the Defense of Double Jeopardy, p. 702
1. B—Court Must Have Jurisdiction To Try the Case, p. 703

2. C—Plea After Arraignment, p. 705
3. D—Conviction, Acquittal or Dismissal, p. 706
1. § VI.Identity of Offense, p. 706
1. A—Tests of Identity of Offense, p. 706

2. B—Exceptions to the Test of Identity, p. 708
1. § VII.Time to Raise Question of Double Jeopardy, p. 711
________________
§ I. Origin
No person shall be twice put in jeopardy of punishment for the same offense. If an act
is punished by a law and an sordinance, conviction or acquittal under either shall
constitute a bar to another prosecution for the same act. 1
_______________
1Section 21, Article III, 1987 Constitution.

696
Double jeopardy is a defense in a criminal action that the accused had been tried for
the same offense as that with which he is now charged either by indictment or
information. The term is derived from the Fifth Amendment to the Constitution of
the United States and to similar provisions in the Constitution of the several states.
2
In 1969, the United States Supreme Court found “that the double jeopardy
prohibition of the Fifth Amendment represents a fundamental ideal in our
constitutional heritage” and should be applied “to the States through the Fourteenth
Amendment.”
The Fifth Amendment says that no one can be tried twice for the same offense nor
be compelled to testify against himself.
The Supreme Court of the United States explained the prohibition against double
jeopardy in a 1957 decision. “The underlying idea x x x,” it said, “is that State with
all its resources and power should not be allowed to make repeated attempts to
convict an individual for an alleged offense, thereby subjecting his embarrassment,
expense and ordeal, compelling him to live in a continuing state of anxiety and
insecurity x x x.”
The plea is liberally construed to cover all criminal prosecutions, even those not
strictly involving “life or limb.” It resembles therefore the common law pleas of
“autrefois acquit, attaint, convict,” and common law provision of “non bis in idem”—
not twice for the same thing. 3
§ II. The Rule of Double Jeopardy

The rule of double jeopardy means that when a person is charged with an offense and
the case is terminated either by acquittal or conviction or in any manner without the
consent
_______________
2 x x x nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; x x
x.
3 Lawson vs. State, 33 Ala. App. 333, 33 So. (2) 405; State vs. Brick Co., 117 Kans. 192; U.S. vs.
Lanza, 260 U.S. 377; Melo vs. People, 85 Phil. 768.

697
VOL. 266, JANUARY 27, 1997 697
of the accused, the latter again be charged with the same or identical offense. This 4
principle is founded upon the law of reason, justice and conscience, and is embodied
in our Constitution as one of the fundamental rights of the citizens. 5
§ III. Nature and Scope

The Supreme Court, under its rule-making power, adopted in Rule 117, Section 7, of
6
the Revised Rules of Court a provision interpretative of the double jeopardy clause as
an attempt to implement the constitutional mandate, to wit: “When an accused has
been convicted or acquitted, or the case against him dismissed or otherwise
terminated without his express consent by a court of competent jurisdiction, upon a
valid complaint or information or other formal charge sufficient in form and
substance to sustain a conviction and after the accused had pleaded to the charge,
the conviction or acquittal of the accused or the dismissal of the case shall be a bar
to another prosecution for the offense charged, or for any attempt to commit the same
or frustration thereof, or for any offense which necessarily includes or is necessarily
included in the offense charged in the former complaint or information.”
The settled jurisprudence in this jurisdiction is that a verdict of acquittal in a
criminal case is final and conclusive and, hence, an appeal from such a judgment will
place the accused in double jeopardy, regardless of whether the supposed error of
7
the trial court related to the merits, as for example when a case is dismissed on the
ground of insufficiency of evidence
_______________
Moreno, Philippine Law Dictionary; See People vs. Quijada, 259 SCRA 191.
4
People vs. Bocar, 138 SCRA 166; Taugan vs. People, 155 SCRA 435.
5
6 Article VIII, Section 5(5), 1987 Constitution.
7 Kepner vs. United States, 195 U.S. 100; 11 Phil. 689; People vs. Cabarles, 102 Phil. 926; People vs.
Bao, 106 Phil. 243.

698
after the prosecution had rested or after the case has been submitted for decision
8
upon an agreed stipulation of facts, or whether the dismissal was based on the trial
9
court’s erroneous belief of lack of jurisdiction or of the necessity of a sworn complaint

10
by the offended party in a prosecution for oral defamation. Neither will an appeal by
11
the State lie to obtain an increase of the penalty, as when the prosecution seeks to
12
obtain from the appellate court the imposition of the penalty of confiscation or
forfeiture of dollar bills and checks held in violation of a Central Bank circular, in
addition to the imprisonment and fine to which the defendant was sentenced by the
trial court. 13
Of course, where the defendant himself has appealed, the appellate court may
increase the penalty and hold the appellant guilty of a higher offense than that of
which he was convicted by the lower court, since an appeal by the defendant operates
to make the proceedings before the higher court a trial de novo. And an appellate 14
court may remand the case to the lower court for further proceedings to determine
the civil liability of the convicted defendant, such remand does not place
15
the accused in double jeopardy, because the assessment of damages in favor of the
offended party cannot be considered as punishment for the crime, even though
determined in the criminal action. The applicability of this ruling may be doubted in
16
those cases where subsidiary imprisonment, as provided in Article 39, Revised Penal
Code, is to be imposed in case of insolvency of the convicted defendant and it is the
_______________
8 People vs. Bao, supra; See also People vs. Bans, 239 Phil. 48.
9 United States vs. Kilayko, 32 Phil. 619.
10 People vs. Flores, 103 Phil. 1120.
11 People vs. Bringas, 70 Phil. 528.
12 People vs. Arinso, 52 O.G. 5483.
13 People vs. Ravil, 104 Phil. 1043.
14 Exconde vs. Capuno, et al., Trono vs. United States, 199 U.S. 521, 11 Phil. 726.
15 People vs. Ursua, 60 Phil. 252.
16 United States vs. Hecry, 25 Phil. 600.
699
VOL. 266, JANUARY 27, 1997 699
prosecution that appeals a final judgment of conviction to obtain an adjudication on
the defendant’s civil liability.
On April 21, 1969, Article 39 of the Revised Penal Code was amended by Republic
Act No. 5465. As a result of the amendment, abolishing the subsidiary imprisonment
for indemnity, it was held that portion of the trial court’s judgment that Bernabe
Lazarte should serve subsidiary imprisonment for the indemnity of P2,000.00 in case
he is insolvent, should be eliminated. 17
Not the same trial court may, upon motion of the prosecution, reopen the case to
increase the penalty, as where it is alleged by the prosecution in its motion for
reconsideration that the accused, who had already began serving his sentence
should not have been given the benefit of the mitigating circumstances of minority,
because, according to the prosecution, he was already 18 years old at the time of his
arraignment. 18
The defense of double jeopardy is available in criminal prosecution only. So, it

cannot be invoked in an appeal to the President by the head of an office from the
decision of the Civil Service Board of Appeals clearing one of his subordinate
employees of administrative charges. For the same reason, the fact that a person has
19
already been convicted and fined under are legal provision for failure to disclose to
the customs authorities dutiable articles imported by him into the Philippines, is no
basis to claim double jeopardy in connection with a second imposition of a fine in
treble the value of the things brought in and a seizure of the articles, under another
provision, since the subsequent proceeding is merely a civil proceeding to enforce
collection of a surcharge on the imported articles. 20
_______________
17 People vs. Doria, 55 SCRA 435.

18 De Leon vs. Rodriguez, 107 Phil. 759.
19 Negado vs. Castro, etc., et al., 104 Phil. 103.
20 Republic vs. Robero (259 Pieces of Jewelry), 89 Phil. 333.
700
SUPREME COURT REPORTS ANNOTATED 700
The constitutional guarantee may not be invoked against the peril of a second
punishment or second trial for the same offense, but also against being prosecuted
twice for the same act where the act is punishable by a law or an ordinance. 21
§ IV. Requisites of Double Jeopardy

For the defense of double jeopardy, three requisites must be present: (1) a first
jeopardy must have been attached prior to the second; (2) the first jeopardy must have
been validly terminated; and (3) the second jeopardy must be for the same offense as
that in the first. 22
§ V. When Conditions for Jeopardy Attach

In order that the protection against double jeopardy may inure in favor of
an accused, the following requisites must have obtained in original prosecution: (1)
a valid complaint or information or other formal charge sufficient in form and
substance to sustain a conviction; (2) a competent court; (3) the defendant had
pleaded to the charge; (4) the defendant had been convicted, or acquitted, or the case
against him dismissed or otherwise terminated without his express consent; and (5)
the second offense charged is the same as the first; or is an attempt to commit the
same or a frustration thereof, or that the second offense necessarily includes or is
necessarily included in the offense or information. 23
_______________
21 Ada vs. Virola, 172 SCRA 336.

22 People vs. Bocar, 138 SCRA 166; Taugan vs. People, supra; Gorion vs. Regional Trial Court of Cebu
City, Br. 17, 213 SCRA 138; People vs. Tampal, 244 SCRA 202; People vs. Bellaflor, 233 SCRA
196; Martinez vs. Court of Appeals, 237 SCRA 575; People vs. Leviste, 255 SCRA 238; Guerrero vs. Court
of Appeals, 257 SCRA 703.
23 United States vs. Padilla, 4 Phil. 511; United States vs. Ballantine, 4 Phil. 672; People vs. Cabrera, 43
Phil. 97; People vs. Ylagan, 58 Phil. 851; People vs. Capistrano, 109 Phil. 337; People vs. Obsania, 23 SCRA
1249; People vs. Militante, 117 SCRA 912; People
701
VOL. 266, JANUARY 27, 1997 701
A —A Valid Complaint or Information
Generally, in order that jeopardy may attach, there must be a valid information or
complaint. So where the information is so defective in form or substance that it will
not sustain a conviction, it cannot form the basis of the proceeding which will put
defendant in jeopardy and bar another prosecution. 24
If an information or complaint is dismissed and the accused discharged on a

motion to quash, or on petition of the fiscal or the accused, or on the court’s own
motion, because the information or complaint is either void or fatally defective in that
it charges no offense known to the law, or what amounts to the same thing, when it
does not charge the proper offense, such dismissal and consequent discharge of
the accused is not a bar to his prosecution for the same offense designed in the
dismissed information. 25
The plea of double jeopardy applies where the offenses in the two informations are
the same in law and in fact. It is not necessarily decisive that the two offenses may
have material facts in common, or that they are similar, where they are not in fact
the same. The test is not whether the defendant has already been tried for the same
act, but whether he has been put in jeopardy for the same offense. A single act may 26
offend against two (or more) entirely distinct and unrelated provisions of law, and if
one provision of law requires proof of an additional fact or element while the other
does not, an acquittal or conviction or a dismissal of the information under
_______________
vs. Bocar, 138 SCRA 166; Ada vs. Virola, 172 SCRA 336; Buscayno vs. Military Commission Nos. 1, 2, 6
and 25, 109 SCRA 273; People vs. Santiago, 174 SCRA 143; People vs. Vergara, 221 SCRA 560; People vs.
Tampal, supra; Gonzales vs. Court of Appeals, 232 SCRA 667; Navallo vs. Sandiganbayan, 234 SCRA
175; People vs. Leviste, 255 SCRA 238.
24 16 C.J. 241; Commission on Elections vs. Court of Appeals, 229 SCRA 501.
25 People vs. Austria, 50 O.G. 1967; People vs. Capistrano, 109 Phil. 357; Gonzales vs. Court of
Appeals, 232 SCRA 667.
26 People vs. Cabrera, 43 Phil. 97.
702
one does not bar prosecution under the other. In other words where two different
27
laws (or articles of the same Code) define two crimes, prior jeopardy as to one of them
is no obstacle to a prosecution of the other, although both offenses arise from the same
facts, if such crime involves some important act which is not an essential element of
the other. 28
However, where a complaint is fatally defective either in form or in substance, no

objection is taken at the trial but is raised for the first time on appeal, it is not error
for the court to refuse to sustain such objection when the fatal defects are supplied
by competent proof. 29
1. Primary Basis of the Defense of Double Jeopardy

There is no double jeopardy in the filing of the information for homicide in Criminal
Case No. 17587 and in filing of the information for illegal possession of firearms and
ammunitions used in the commission of homicide in Criminal Case No. 19350 for the
simple reason that the first jeopardy had not yet attached. It is well-settled that the
mere filing of two informations or complaints charging the same offense does not yet
afford the accused in those cases the occasion to complain that he is being placed in
jeopardy twice for the same offense, for the simple reason that the primary basis of
the defense of double jeopardy is that the accused has already been convicted or
acquitted in the first case or that the same has been terminated without his express
consent. It is the conviction or jeopardy of being convicted or the acquittal of
the accused or termination of the case that bars further prosecution of the same
offense or any attempt to commit the same or frustration thereof, or for any offense
which necessar-
_______________
27 People vs. Bacolod, 89 Phil. 622; United States vs. Capurro, 7 Phil. 24; People vs. City Court of Manila,
Br. VI, 154 SCRA 175.
28 Ada vs. Virola, 172 SCRA 336; People vs. City Court of Manila, Br. VI, supra; People vs. Alvarez, 45
Phil. 472.
29 United States vs. Estraña, 16 Phil. 501.
703
VOL. 266, JANUARY 27, 1997 703
ily includes or is necessarily included in the offense charged in the former complaint
or information. 30
B —Court Must Have Jurisdiction To Try the Case

In order that a defendant may legally be placed in jeopardy, it is a necessary and
indispensable condition that he should have been previously tried by a court of
competent jurisdiction. 31
Where a court has jurisdiction of the offense charged and of the person of
the accused, conviction or acquittal in that court constitutes a bar to a subsequent
prosecution for the same offense, although errors of law or facts or of discretion may
have been committed. 32
To entitle one to claim previous jeopardy it is not essential that the court acquiring
jurisdiction in the first prosecution for the same offense be a civil court. So, one who
has been tried and convicted by a court-martial under circumstances giving that
tribunal jurisdiction over the defendant and of the offense, has been once in jeopardy
and cannot for the same offense be again prosecuted in a civil court of the same
sovereignty. 33
Where a court has no jurisdiction over a case, either because the offense charged
is not within court’s competence or because it was prosecuted upon information of
34
the fiscal when by reason of its nature, as in cases of rape or seduction, it

35 36
_______________
30 Bulaong vs. People, 17 SCRA 746; Silvestre vs. Military Commission No. 21, 82 SCRA 10; Buscayno
vs. Military Commission Nos. 1, 2, 6 and 25, 109 SCRA 273; Taugan vs. People, supra; See also Rule 117,
Section 3(h), Revised Rules of Court.
31 United States vs. Robin, 28 Phil. 631.
32 United States vs. Jayme, 24 Phil. 90; People vs. Bangalao, 50 O.G. 4860; 16 C.J. 239.
33 United States vs. Tubig, 3 Phil. 244; Crisologo vs. People, 50 O.G. 1021.
34 United States vs. Arceo, 11 Phil. 530; United States vs. Almazan, 20 Phil. 225; Eustaquio vs. Liwag, 86
Phil. 540.
35 United States vs. Manaba, 58 Phil. 265.
36 United States vs. Jayme, supra.
704
should have been upon complaint of the offended party, a conviction or acquittal is
absolutely void. Hence, since the accused in such a case has not been exposed to any
danger or conviction at all, the right of the government to prosecute the crime in the
proper court subsists. 37
A plea of double jeopardy cannot be sustained upon the ground alleged by

the accused that prior to his trial in the proper court, there had been two
preliminary investigations carried on against him relative to the same offense, since
the only purpose of a preliminary investigation is to determine the existence of a
probable cause. Nor is there a first jeopardy when a case was not dismissed but
38
merely remanded to the Justice of the Peace in order that he may conduct a new
preliminary investigation. 39
Also, the accused was never in double jeopardy where the previous case, had not
only been dismissed before arraignment and plea, but also, because its dismissal took
place with the express consent of the accused. 40
If a court dismisses a criminal case for supposed lack of jurisdiction, when in fact
it has, one line of Supreme Court decisions holds that the accused may not be
permitted to plead the defense of double jeopardy in a subsequent prosecution for the
same offense, upon the reasoning that in asking the trial court to dismiss the
information against him for supposed lack of jurisdiction, he waives his constitutional
protection against being twice placed in jeopardy for the same offenses, because he
thereby prevents the court from proceed-
_______________
37 United States vs. Jayme, supra; United States vs. Arceo, 11 Phil. 530; Eustaquio vs. Liwag, 86 Phil.
540; United States vs. Almazan, supra.
38 United States vs. Yu Tuico, 34 Phil. 209; Nicomedes vs. Chief of Constabulary, 110 Phil. 52; People vs.
Oandasan, 25 SCRA 277; Arula vs. Espino, 28 Phil. 540.

39 People vs. Cosare, 95 Phil. 656; Pureza vs. Averia, 25 SCRA 269; Luna vs. Plaza, 26 Phil. 310.
40 People vs. Bellosillo, 9 SCRA 835.
705
VOL. 266, JANUARY 27, 1997 705
ing to try the case on the merits and rendering a judgment of conviction against
him. Also, the Supreme Court holds that not only is the accused placed twice in
41 42
jeopardy by a subsequent prosecution for the same offense but also in an appeal by
43
the prosecution from the order of the trial court dismissing the case for supposed lack
of jurisdiction. 44
C —Plea After Arraignment

One is put “in jeopardy” within the meaning of the term in the Act of Congress of July
1, 1902, until his trial has actually begun—that is to say, until he has been
arraigned. 45
A defendant is legally placed in trial only when issue upon the information has
been joined after arraignment by his plea of not guilty thereto. Accordingly, before
46
arraignment, the accused can in no wise be said to have been exposed to any peril of
conviction at all, as in this jurisdiction no defendant can be highly convicted without
having been first informed of the charge against him. But, after arraignment, the
47
dismissal of the case without the consent of the accused, even before a witness has
been called or after complete evidence has been presented by the prosecution,
operates as an acquit-
_______________
41 People vs. Salico, 84 Phil. 722; People vs. Hernandez, 49 O.G. 5442; see also People vs. Manantan, 5
SCRA 684. “Although the dismissal of the case by the court was erroneous, to entertain an appeal praying
for the proceeding of the case would place the accused in double jeopardy.” People vs. Casiano, 1 SCRA
823; People vs. Anchilla, 1 SCRA 698; People vs. Ladisla, 8 SCRA 793; People vs. Acosta, 25 SCRA
823; People vs. Gil, 25 SCRA 888.
42 United States vs. Regala, 28 Phil. 57.
43 United States vs. Regala, supra.
44 People vs. Bangalao, supra; People vs. Flores, 103 Phil. 1120.
45 United States vs. Montiel, 7 Phil. 272.
46 People vs. Ylagan, supra; People vs. Malayao, 1 SCRA 628.
47 Section 12 (1), Article III, 1987 Constitution.
706
tal from which the prosecution cannot appeal without violating the principle of double
jeopardy. 48
D —Conviction, Acquittal or Dismissal

Conviction means judgment declaring the accused guilty of the offense charged and
imposing upon him the penalty provided for by law. Acquittal is a judgment declaring
the accused not guilty of the crime charged and ordering his release. And there is 49
dismissal when the case is terminated otherwise than upon the merits thereof, as
when the dismissal is based on the allegation that the court has no jurisdiction, either
upon the subject matter or the territory, or that the complaint or information or is
not valid or sufficient, or upon any other ground that does not decide the merits of
the issue as to whether the accused is or is not guilty of the offense charged. 50
Similarly, the termination or dismissal for whatever reason—says the law—
without the consent of the accused, of a case tried before a court by virtue of a valid
complaint or information or any other charge sufficient to sustain a conviction, after
the accused has pleaded guilty and before judgment, constitute jeopardy which
precludes the placing of the accused again on trial for the same offense
consummated, frustrated, or attempted. 51
VI. Identity of Offense

A —Tests of Identity of Offense
The protection of the Constitution is against a second “jeopardy of punishment for the
same offense.” 52
_______________
People vs. Cabarles, 102 Phil. 926; People vs. Bao, 106 Phil. 243.
48
22 C.J.S. Section 218, p. 402.

49
50 People vs. Salico, supra.
51 Tolentino vs. De la Costa, 66 Phil. 97.
52 Cf. People vs. Ylagan, 58 Phil. 851: “The rule against double jeopardy protects the accused not against
the peril of second

707
VOL. 266, JANUARY 27, 1997 707
One of the tests of double jeopardy is whether or not the second offense charged
“necessarily includes or is necessarily included in the offense charged in the former
complaint or information.” Another test is whether the evidence which proves one
53
would prove the other, that is to say whether the facts alleged in the first charge if
proven would have been sufficient to support the second charge and vice versa; or,
whether one crime is an ingredient of the other. Since the second charge of damage
to property through reckless imprudence includes the first charge of reckless driving
and that the facts alleged in the information on damage to property thru reckless
driving, if proven would have been sufficient to support the first charge of reckless
driving, there is double jeopardy, all for the simple reason that the basic element of
both offenses is reckless driving. 54
Where a single criminal act produces two separate crimes, it is only equitable that
the constitutional protection against double jeopardy be made to cover as nearly as
possible every result which flows from a single criminal act impelled by a single
criminal intent and the injury sought to be redressed is to the public and not to
individuals. For instance, the unlicensed possession of a shotgun and a revolver by
55
the same person at the same time and in the same place is but one act of possession,
one violation of the law, and accordingly, a conviction for the possession of one is a
bar to a prosecution for the possession of the other. 56
A single act may be an offense against two provisions of law or different laws and
if each provision of law requires proof of an additional fact which the other does not,
an acquittal or
_______________
punishment, but against being tried again for the same offense. “See also People vs. Cabrera, 43 Phil.
83.
53 Section 7, Rule 117 of the Revised Rules of Court.
54 People vs. Diaz, 94 Phil. 714.
55 United States vs. Gustilo, 19 Phil. 208.
56 Ibid.
708
conviction either does not bar prosecution under the other as where a defendant was
57
convicted of estafa under the old Penal Code for selling a property, falsely
representing it as free from encumbrance when it was in fact encumbered, it was held
that he could not avail of the defense of double jeopardy when he was again
prosecuted for selling the same property without the consent of the mortgagee in
violation of the Chattel Mortgage Law. Where two different laws define two crimes,
conviction of one of them is no obstacle to conviction of the other, although both
offenses arise from the same facts, if each crime involves some important act which
is not an essential element of the other. 58
On the same principle, one who has been charged with having caused a serious
disturbance in a public place by firing a submachine gun thereby causing panic
among the numerous people present, may, in a second case, be charged with firing a
shot from a submachine gun thereby causing through reckless imprudence physical
injury upon another person. 59
Lately, the Supreme Court ruled in People vs. Turda, that recruitment of persons
60
for overseas employment without the necessary recruiting permit or authority from
the POEA constitutes illegal recruitment; however, where some other crimes or
felonies are committed in the process, conviction under the Labor Code does not
preclude punishment under other statutes. 61
B —Exceptions to the Test of Identity

However, the conviction of the accused shall not be a bar to another prosecution for
an offense which necessarily includes
_______________
57 United States vs. Capurro, 7 Phil. 24; In re Neilsen, 131 U.S. 176; People vs. Majors, 65 Cal.
138; Severin vs. People, 37 Ill. 414.

58 People vs. Alvarez, 45 Phil. 472; see also People vs. Turla, 233 SCRA 702.
59 People vs. Bacolod, 89 Phil. 621.
60 233 SCRA 702.
61 See People vs. Calonzo, 262 SCRA 534; People vs. Buemio, 265 SCRA 582; People vs. Manungas, 231
SCRA 1.
709
VOL. 266, JANUARY 27, 1997 709
the offense charged in the former complaint or information under any of the following
instances:
1. (a)the graver offense developed due to supervening facts arising from the same
act or omission constituting the former charge;
2. (b)the facts constituting the graver charge became known or where discovered
only after the filing of the former complaint or information; or
3. (c)the plea guilty to the lesser offense was made without the consent of the
fiscal and of the offended party.
In any of the foregoing cases, where the accused satisfies or serves in whole or in
part the judgment, he shall be credited with the same in the event of conviction for
the graver offense. 62
The test of identity of offenses does not apply when the said second offense was not
in existence at the time of the first prosecution, for the reason that in such case there
is no possibility for the accused, during the first prosecution, to be convicted for an
offense that was then in existent. Otherwise stated, the doctrine of supervening
63
event is: “Where after the first prosecution a new fact supervenes for which the
defendant is responsible, which changes the character of the offense and, together
with the facts existing at the time, constitutes a new distinct offense”
the accused cannot be said to be in second jeopardy if indicted for the new
offense. In case of conviction in the second case, however, the accused shall be
64
credited with the penalty already suffered by him under the first conviction. 65
Following the doctrine of supervening events, the Supreme Court has held that
where the victim of an assault dies as the
_______________
62 Section 7, par. 2, Rule 117, Revised Rules of Court.

63 Diaz vs. United States, 223 U.S. 442; People vs. Espino, 69 Phil. 471.
64 Melo vs. People, 85 Phil. 766; People vs. Manolong, 85 Phil. 829.
65 People vs. Tarok, 73 Phil. 260; People vs. Manolong, supra.
710
result of injuries sustained after the accused has been convicted or acquitted on a
charge of physical injuries, the accused can still be prosecuted for the homicide. 66
In People vs. Manolong, after the accused had pleaded guilty to and had been
67
convicted of a charge of less serious physical injuries for having inflicted injuries on
complainant which it was alleged would take “from 20 to 30 days to heal,” it developed
that the injuries did not heal within the period estimated and that the actual healing
period was sufficient to warrant a charge of serious physical injuries. It was held that
double jeopardy was not involved in a subsequent prosecution on the latter charge. 68
But in People vs. Buling, where the accused was charged and thereafter
69
convicted of less serious physical injuries, and then, because the injuries of the victim
did not heal within the period estimated, the accused was again prosecuted and
convicted of serious physical injuries, the Court ruled that the second prosecution
constituted double jeopardy. Distinguishing this case from the Manolong case, the 70
Court said that in the present case, no new supervening fact had occurred,
transforming the offense from less serious physical injuries to serious physical
injuries. The injury and its condition was the same when first examination was made
on December 10, 1956, as when another examination was made on January 18, 1957.
What happened was, that no x-ray examination of the wounds was made during the
first examination which was merely superficial. The examining physician could not
have seen the fracture of the arm, and this could only be apparent or visible by x-ray
photography. On the other hand, in the Manolong case, the first examination made
of the offended party showed injuries which would take from 20 to 30 days to
_______________
66 Melo vs. People, supra; reversing People vs. Tarok, supra; People vs. Villasis, 46 O.G. No. 1, Supp. 268.
67 Supra.
68 See also People vs. Pitilla, 48 O.G. 5288.
69 107 Phil. 712.
70 Supra.
711
VOL. 266, JANUARY 27, 1997 711
heal, whereas the subsequent examination disclosed that the wound of the offended
party would require medical attendance and incapacitate him for a period of 90 days,
“causing deformity and the loss of the use of said member.” No finding was made in
the first examination that the injuries had caused deformity and the loss of the use
of the right hand. As nothing was mentioned in the first medical certificate about the
deformity, it could be presumed that such fact was not apparent or could not have
been discernible at the time the first examination was made. The course (not the
length) of the healing of an injury may not be determined beforehand; it can only be
definitely known after the period of healings, was ended. That is the reason, according
to the Court, why it held that there was supervening fact occurring since the filing of
the original information. But such circumstance did not exist in People vs. Buling. 71
§ VII. Time to Raise Question of Double Jeopardy

The right to interpose the plea of former jeopardy may be waived. Hence, if no
objection on the ground of double jeopardy is made in the trial court at the time of the
arraignment, the objection will not be considered in the appellate court for the first
time. 72
But in Bao case, where the fiscal appealed from an order of dismissal upon the
73
motion of the accused for variance between allegation and proof, the Supreme Court
held that although the accused failed to raise the point that the appeal placed him
twice in jeopardy, nevertheless the provision of
_______________
71 Supra.
72 United States vs. Ondaro, 39 Phil. 70; People vs. Mangcal, 47 O.G. No. 12, Supp. 228; People vs.
Pinuila, 103 Phil. 992; People vs. Casiano, 1 SCRA 478; People vs. Baluran, 32 SCRA 71; People vs.
Alvior, 164 SCRA 332.
73 106 Phil. 243.
712
Section 2(a) of Rule 118 of the Rules of Court that “The People of the Philippines
74
cannot appeal if the defendant would be placed thereby in double jeopardy,” must be
given force and effect. This ruling, however, was reversed by the same Court in the
case of People vs. Casiano, wherein it says: “Where the accused did not seasonably
75
object to the appeal of the prosecution on the ground that such an appeal would place
him in double jeopardy, he is deemed to have waived his constitutional immunity
from double jeopardy,” and further stresses, “an immunity must be specially pleaded
at the earliest opportunity.”
——o0o——
_______________
74 Now Section 2, Rule 122, Revised Rules of Court, and reads as follows: “Any party may appeal from a
final judgment or order, except if the accused would be placed thereby in double jeopardy.”
75 1 SCRA 478.
713
Confession of Accused Under Investigation
ANNOTATION
CONFESSION OF ACCUSED UNDER INVESTIGATION
By:
JOSE AGATON R. SIBAL
______________
1. § 1.Constitutional Provisions, p. 690

2. § 2.Origin, p. 691
3. § 3.Objective of the Right to be Informed, p. 691
4. § 4.The Exclusionary Rules, p. 692
5. § 5.Voluntary Confessions, p. 693
6. § 6.Confession Constitutes Evidence of High Order, p. 693
7. § 7.Duty of Officers Administering Oath to Confessants, p. 693
8. § 8.Waiver of Rights, p. 694
______________
§ 1. Constitutional Provisions
Section 12(1) to (4) of Article III of the 1987 Constitution provides:
1. (1)Any person under investigation for the commission of an offense shall have
the right to be informed of his right to remain silent and to have competent
and independent counsel preferably of his own choice. If the person cannot
afford the services of counsel, he must be provided with one.
These rights cannot be waived except in writing and in the presence of
counsel.
2. (2)No torture, force, violence, threat, intimidation, or any other means which
vitiate the free will shall be used against him. Secret detention places,
solitary, incommunicado, or other similar forms of detention are prohibited.
691
VOL. 269, MARCH 14, 1997 691
1. (3)Any confession or admission obtained in violation of this or Section 17 hereof

shall be inadmissible in evidence against him.
2. (4)The law shall provide for penal and civil sanctions for violations of this
section as well as compensation to and rehabilitation of victims of torture or
similar practices, and their families.
Under the foregoing provisions a person under custodial investigation is entitled to

the following rights: (a) The right to be informed of his right to remain silent; (2) The
right to have competent and independent counsel preferably of his own choice and if
he cannot afford the services of counsel, he must be provided with one. 1
These rights cannot be waived except in writing and in the presence of counsel. 2
§ 2. Origin
The right of an accused to be informed of the nature and cause of accusation against
him, an ancient bulwark of the liberties of men, has its origin in the Bill
of Rights which the People of Great Britain demanded and received from the Prince
and Princess of Orange in 1688. It was adopted by the Constitution of the United
States and was extended to the Philippines by Act No. 235, or the Philippine Bill of
1902. It was later carried into Jones Law and, ultimately, enshrined in the
Constitutions of 1935, 1973 and 1987. 3
§ 3. Objectives of the Right to be Informed

The right to be informed has the following objectives:
_______________
1 See People vs. Hernandez, 162 SCRA 422. See also Escobedo vs. Illinois, 378 U.S. 478, 1964; Miranda
vs. Arizona, 384 U.S. 436, 1966; and Magtoto vs. Manguera, 64 SCRA 4, 18.
2 See People vs. Cabintoy, 247 SCRA 442.
3 Pecho vs. People, 262 SCRA 518.
692
1. (1)To furnish the accused with such a description of the charge against him
as will enable him to make his defense;
2. (2)To avail himself of his conviction or acquittal for protection against a further
prosecution for the same cause; and
3. (3)To inform the court of the facts alleged, so that it may decide whether they
are sufficient in law to support a conviction, if one should be had. 4
In order that this requirement may be satisfied, facts must be stated; not conclusions
of law. Every crime is made up of certain acts and intent; these must be set forth in
the complaint with reasonable particularity of time, place names (plaintiff or
defendant), and circumstances. In short, the complaint must contain a specific
allegation of every fact and circumstance necessary to constitute the crime charged. 5
§ 4. The Exclusionary Rules

Any confession or admission obtained in violation of Sections 12 and Section
17, supra, is inadmissible in evidence against the person from whom such confession
was illegally obtained. This is otherwise known as “exclusionary rule.”
The exclusionary rules adopted by the framers of the 1987 Constitution were
designed, not to vindicate the constitutional rights of lawbreakers but to protect
the rights of all citizens, especially the innocent, in the only conceivable way
those rights could be effectively protected, by removing the incentive of law
enforcement and other officials to obtain confessions by the easy route, either by
psychological and physical torture, or by methods which fall short of the standard
provided by the fundamental law. Allowing any profit gained through such methods
furnishes an incentive for law enforcement officials to engage in constitutionally
proscribed methods of law enforcement, and renders nugatory the only effective
constitutional protection available to citizens. 6
_______________
4 United States vs. Cruikshank, 92 U.S. 542.

5 Pecho vs. People, supra.
6 People vs. Deniega, 251 SCRA 626.
693
VOL. 269, MARCH 14, 1997 693
§ 5. Voluntary Confessions
It is proverbial in law that a confession made freely and voluntarily constitutes one
of the most effectual proofs against the person making it. But striped of its free and
voluntary character, which otherwise gives its value, a confession is wholly
inadmissible. The principle stems from the constitutional right of
the accused against self-incrimination; and this precludes the use of a confession
obtained through force, threat or other means which vitiates the free will. 7
§ 6. Confession Constitutes Evidence of High Order

A confession constitutes an evidence of high order since it is supported by the strong
presumption that no person of normal mind would deliberately and knowingly confess
to a crime unless prompted by truth and his conscience. This presumption of 8
spontaneity and voluntariness stands unless the defense proves otherwise. A 9
confession is admissible until the accused successfully proves that it was given as a
result of violence, intimidation, threat, or promise of reward of leniency. 10
§ 7. Duty of Officers Administering Oath to Confessants

It would do well to remind judges, fiscals and other officers to whom
persons accused of a crime are brought for swearing to the truth of their statements
“to adopt the practice of having the confessants physically and thoroughly examined
by independent and qualified doctors before administering the
_______________
7People vs. Sabilano, 132 SCRA 83.

8People vs. Salvador, 163 SCRA 574; People vs. Alvarez, 203 SCRA 364.
9 People vs. Alvarez, Ibid.
10 People vs. Parojinog, 203 SCRA 673. See also People vs. Pamon, 217 SCRA 501 and People vs.
Montiero, 246 SCRA 786; People vs. Ruelan, 231 SCRA 650.
694
oath, even if it is not requested by the accused. Or, if no doctor is immediately
available, the swearing officers should themselves examine the entire bodies of the
confessants for marks of violence, particularly the portions covered by their clothing.
Such examination, if regularly required, and the results officially noted, would not
only deter attempts to secure confessions through violence, but ultimately shorten
and speed up criminal trials (where accused persons almost invariably repudiate
their confessions) by precluding future controversies on whether the statements were
obtained through torture or not. Common sense advises that the swearing officers
should not be content with affirmations by the accused that their statements are
voluntary, nor with denials that they were improperly procured. Manifestations of
this kind are to be expected if the accused is to return to the custody of the agents
who obtained the confessions, since repudiation of the statement would only result in
the infliction of further punishment by those charged with improperly extracting the
challenged statements.” 11
§ 8. Waiver of Rights
By voluntarily executing the extrajudicial confession after having been informed of
the accused’s constitutional rights, and in the presence of and with the assistance
of counsel, he effectively waived his right to remain silent. 12
——o0o——
_______________
11 People vs. Barros, 122 SCRA 35; quoting People vs. Castro, 120 Phil. 669, 681-682. See also People vs.
Deniega, 251 SCRA 626.
12 People vs. Ruelan, 231 SCRA 650.
695
VOL. 276, JULY 24, 1997 73
Vital Aspects of Accused’s Constitutional Right to Counsel
ANNOTATION
VITAL ASPECTS OF ACCUSED’S CONSTITUTIONAL RIGHT TO COUNSEL
By
JULIANA C. AZARRAGA *
———————
1. § I.Introduction, p. 73
2. § II.Constitutional Guarantee, p. 74
3. § III.Purpose of Constitutionalizing This Right (to Counsel), p. 74
4. § IV.Under What Stage of Criminal Prosecution is a Suspected Felon
Entitled to Counsel, p. 74
5. § V.Right to Counsel may be Waived, p. 82
6. § VI.Right of Accused to Counsel de Oficio When his Case is on Appeal,
p. 82
7. § VII.Right to Counsel in Civil Cases, p. 82
———————
On accused’s right to counsel, Justice Douglas, in William vs. Kaiser, 323 U.S. 471
(1945), succinctly said: “(The accused) needs the aid of counsel lest he be the victim
of overzealous prosecutors, of the law’s complexity, or of his own ignorance or
bewilderment.”
§ I. Introduction
While the right to be represented by counsel is absolute, the accused’s option to hire
one of his own choice is limited. (People vs. Serzo, 274 SCRA 553 [1997).
______________
*Assistant Provincial Prosecutor.

74
§ II. Constitutional Guarantee
Sec. 12, Article III of the 1987 Constitution provides:
“SEC. 12. (1) Any person under investigation for the commission of an offense shall have the
right to be informed of his right to remain silent and to have competent and independent
counsel preferably of his own choice. If a person cannot afford the services of counsel, he must
be provided with one. These rights cannot be waived except in writing and in the presence
of counsel. x x x x x x.”
§ III. Purpose of Constitutionalizing this Right (to Counsel)
To curb duress and other undue influence in extracting confessions from a suspect in
a crime. In accordance with the provision of Sec. 12 (1) of the 1987 Constitution, a
waiver of the right to counsel shall be with the assistance of counsel. Indeed, any
waiver of the right to counsel without the assistance of counsel has no evidentiary
value. (People vs. Geralaga, 263 SCRA 145)
§ IV. Under What Stage of Criminal Prosecution is a Suspected Felon
Entitled to Counsel
1. 1.During custodial interrogation
It is one of the worthwhile innovations of the present constitution that even at the
stage of the custodial interrogation when the police agencies are investigating a man’s
possible connection with a crime, he is already entitled to counsel (Sec. 20, Art. IV,
Constitution; Magtoto vs. Manguera, L-37201-02, March 3, 1995). In a true sense,
that is merely to underscore the historical fact that even under the Organic Acts (The
Philippine Bill, Sec. 5 (1902) and the Philippine Autonomous Act, Sec. 3 (1916) prior
to the 1935 Constitution, there was an awareness of the importance of the right to
counsel. [U.S. vs. Gimeno, 1 Phil. 236 (1901); U.S. vs. Santos, 4 Phil. 419 (1905); U.S.
vs. Palisoc, 4 Phil. 207 (1905); U.S. vs. Bacarisas, 6 Phil.
75
VOL. 276, JULY 24, 1997 75
539 (1906); U.S. vs. Capa, 19 Phil. 125 (1911); U.S. vs. Go Leng, 21 Phil.
500 (1912); U.S. vs. Ramirez, 26 Phil. 616 (1914); U.S. vs. Labial, 27 Phil.
82 (1914); U.S. vs. Gustan, 28 Phil. 19 (1914); U.S. vs. Kilayko, 31 Phil.
371 (1915); Tamayo vs. Gsell, 35 Phil. 953 (1916); U.S. vs. Escalante, 36 Phil.
743 (1917); People vs. Abuyen, 52 Phil. 722 (1929); People vs. Del Rosario, 56 Phil.
796 (1931); Cua Go vs. Collector of Customs, 50 Phil. 523 (1934)].
2. At the preliminary investigation.
Sec. 7, Rule 112, Rules of Court, provides:
“When accused lawfully arrested without warrant.—When a person is lawfully arrested
without a warrant for an offense cognizable by the Regional Trial Court the complaint or
information may be filed by the offended party, peace officer or fiscal without a preliminary
investigation having been first conducted, on the basis of the affidavit of the offended party
or arresting officer or person.
“However, before the filing of such complaint or information, the person arrested may ask
for a preliminary investigation by a proper officer in accordance with this Rule, but he must
sign a waiver of the provisions of Article 125 of the Revised Penal Code, as amended, with
the assistance of a lawyer and in case of non-availability of a lawyer, a responsible person of
his choice. Notwithstanding such waiver, he may apply for bail as provided in the
corresponding rule and the investigation must be terminated within fifteen (15) days from
its inception.
“If the case has been filed in court without a preliminary investigation having been first
conducted, the accused may within five (5) days from the time he learns of the filing of the
information, ask for preliminary investigation with the same right to adduce evidence in his
favor in the manner prescribed in this Rule.”
3. When arrested.
Secs. 14, Rule 113 of the Rules of Court provides:
“Right of attorney or relative to visit person arrested.—Any member of the bar shall, at the
request of the person arrested or of
76
another acting in his behalf, have the right to visit and confer privately with such person, in
the jail or any other place of custody at any hour of the day or, in urgent cases, of the night.
This right shall also be exercised by any relative of the person arrested subject to reasonable
regulation.
4. At the trial.
Secs. 1, 6 and 7 of Rule 115, provides:
“Sec. 1(c) To be present and defend in person at every stage of the proceedings, from the
arraignment to the promulgation of the judgment. The accused may, however, waive his
presence at the trial pursuant to the stipulations set forth in his bail bond, unless his
presence is specifically ordered by the court for purposes of identification. The absence of
the accused without any justifiable cause at the trial or on a particular date of which he had
notice shall be considered a waiver of his right to be present during the trial. When
an accused under custody had been notified of the date of the trial and escapes, he shall be
deemed to have waived his right to be present on said date and on all subsequent trial dates
until custody is regained. Upon motion, the accused may be allowed to defend himself in
person when it sufficiently appears to the court that he can properly protect his right without
the assistance of counsel.”
At the time of the arraignment, the court has the duty to appoint a counsel de oficio
when the accused has no counsel of choice and desires to employ the services of a
counsel de oficio. (Sayson vs. People, 166 SCRA 680)
When an accused is arraigned, there is a duty laid upon the court to inform
the accused of certain rights and to extend to him, on his demand, certain others.
This duty is an affirmative one which the court, on its own motion must perform,
unless waived. No such duty, however, is laid on the court with regard to the rights of
the accused which he may be entitled to exercise during the trial. Those
are rights which he must assert himself and the benefits of which he himself must
demand. In other words, in the arraignment, the court must act of its own volition,
regardless of whether the accused requests it, whereas on the appearance for trial
the court does
77
VOL. 276, JULY 24, 1997 77
not act except on the request of the accused. (U.S. vs. Binayoh, 35 Phil. 23)
An accused person is entitled to be represented by a member of the bar in a
criminal case filed against him before the Regional Trial Court. Unless he is
represented by a lawyer, there is great danger that any defense presented in his
behalf will be inadequate considering the legal perquisites and skills needed in the
court proceedings. This would certainly be a denial of due process. (Delgado vs. Court
of Appeals, 145 SCRA 357)
In further ensuring the right to counsel, it is not enough that the subject be
informed of that right; he should be asked whether he wants to avail himself of the
same and should be told that he can hire a counsel of his own choice if he so desires
or that one will be provided him at his request. If he decides not to retain a counsel
of his choice or avail himself of one to be provided for him and, therefore, chooses to
waive his right to counsel, such waiver, to be valid and effective, must be made with
the assistance of counsel. That counsel must be a lawyer. (People vs. Parel, 261 SCRA
720)
Thus, only those members of the bar in good standing who, by reason of their
experience and ability may adequately defend the accused, may be appointed as
counsel de oficio (Sec. 7, Rule 116). An accused has the right to have competent and
independent counsel preferably of his own choice. A judge may not hold a trial of a
criminal case in the absence of the counsel for the accused. If the judge wanted to
expedite the trial, he should have appointed a temporary counsel for the accused.
(Valdez vs. Aquilizan, 133 SCRA 150)
It is the duty of the Court to give counsel de oficio opportunity to study the case to
enable him to effectively represent the accused. (People vs. Martinez, 50 SCRA
509; People vs. Magsi, 124 SCRA 64
Sec. 6, Rule 116 of the Rules of Court provides:
“Duty of the Court to inform accused of his right to counsel.—Before arraignment, the court
shall inform the accused of his right
78
to counsel and shall ask him if he desires to have one. Unless the accused is allowed to
defend himself in person, or he has employed counsel of his choice, the court must assign a
counsel de oficio to defend him.”
Duties of the court at the arraignment of an accused who has no counsel.—
At the arraignment, when the accused appears without counsel, the court has
four (4) important duties to comply with:
1. (1)it must inform accused that it is his right to have counsel before being
arraigned;
2. (2)after giving him such information, the court must ask him if he desires the
aid of a counsel;
3. (3)if he desires and is unable to employ counsel, the court must assign counsel
de oficio to defend him; and
4. (4)if the accused desires to procure a counsel of his own, the court must grant
him a reasonable time therefor. (People vs. Holgado, 85 Phil. 752; Oscar
Bernardo, New Criminal Procedure Annotated, 1994 ed., p. 139)
At the arraignment, the court must act of its own volition regardless of whether
the accused requests it, to inform the accused of his right to counsel before being
arraigned if the latter appears thereat without counsel. (U.S. vs. Binayoh, supra)
It is not enough for the court to apprise an accused of his right to have an
attorney; it is not enough to ask him whether he desires the aid of an attorney, but it
is essential that the court should assign one de oficio for him if he so desires and he
is poor, or grant him a reasonable time to procure an attorney of his own. (People vs.
Rio, 201 SCRA 702)
Duty to inform suspect of his constitutional right not just a ceremonial exercise.—
When the Constitution requires a person under investigation “to be informed” of
his right to remain silent and to counsel, it must be presumed to contemplate the
transmission
79
VOL. 276, JULY 24, 1997 79
of meaningful information rather than just the ceremonial and perfunctory recitation
of an abstract constitutional principle. As a rule therefore, it would not be sufficient
for a police officer just to repeat to the person under investigation the provisions of
Section 20, Article IV of the Constitution. He is not only duty-bound to tell the person
the rights to which the latter is entitled; he must also explain their effects in
practical terms, e.g., what the person under interrogation may or may not do, and in
a language the subject fairly understands. (See People vs. Ramos, 122 SCRA
312; People vs. Caguioa, 95 SCRA 2). In other words, the right of a person under
interrogation “to be informed” implies a correlative obligation on the part of the police
investigator to explain, and contemplates an effective communication that results in
understanding what is conveyed. Short of this, there is a denial of the right, as it
cannot truly be said that the person has been “informed” of his rights. Now, since
the right “to be informed” implies comprehension, the degree of explanation required
will necessarily vary, depending upon the education, intelligence and other relevant
personal circumstances of the person under investigation. Suffice it to say that a
simpler and more lucid explanation is needed where the subject is unlettered.” (People
vs. Nicandro, 141 SCRA 289)
Section 7, Rule 116 provides:
“Appointment of counsel de oficio.—The court considering the gravity of the offense and the
difficulty of the questions that may arise, shall appoint as counsel de oficio only such
members of the bar in good standing, who, by reason of their experience and ability may
adequately defend the accused. But in localities where such members of the bar are not
available, the court may appoint any person, resident of the province and of good repute for
probity and ability to defend the accused.”
The second sentence of the aforequoted section is a restatement of the ruling in U.S.
vs. Bacarisas, supra. In Manila, however, where there are many members of the bar,
the accused may be assisted only by members of the bar. (Paar vs. Borromeo, 79
Phil. 344)
80
The main thrust of petitioner’s arguments is that she is entitled to a new trial and
therefore all the assailed orders of the respondent court should be vacated and set
aside, because her “lawyer,” Atty. Lamberto G. Yco, is not a lawyer.
We find the petition impressed with merit.
This is so because an accused person is entitled to be represented by a member of
the bar in a criminal case filed against her before the Regional Trial Court. Unless
she is represented by a lawyer, there is a great danger that any defense presented in
her behalf will be inadequate considering the legal perquisites and skills needed in
the court’s proceedings. This would certainly be a denial of due process. (Delgado vs.
Court of Appeals, 145 SCRA 357)
Duties of a counsel de oficio.—
A counsel de oficio must exercise his best efforts and professional ability in
defending the accused. The latter expects of him due diligence not perfunctory
representation. (People vs. Estebia, 27 SCRA 106). He must genuinely protect the
interests of the accused. (People vs. Magsi, 124 SCRA 64)
It is not enough that a counsel de oficio was appointed, especially so as here, where
the accused had indicated that he wanted a lawyer of his choice, a decision prompted
moreover by the fact that he had lost confidence in the member of the bar thus
designated. Nor is it to manifest respect for the right if the counsel de oficio thus
named, instead of conferring with the accused, would just blithely inform the judge
that he was already fully prepared for his exacting responsibility. It was unintended,
of course, but the result could not be distinguished from pure travesty. Appellant
could then rightfully invoke this constitutional guarantee. Inasmuch as it is intended
to assure a just and fair proceeding, he is entitled at the most to a new trial where he
can be duly assisted either by a counsel of his choice or by one appointed de oficio, one
who would discharge his task in a much more diligent and conscientious manner and
would not readily assume that he need not bother himself unduly with familiarizing
himself further with all aspects of the case. For only in such a way
81
VOL. 276, JULY 24, 1997 81
may there be an intelligent defense. If the matter be viewed, there is no unfairness
to the state either. It can still see to it that a person against whom a probable cause
had been found would have to stand trial, but, to repeat, with all the constitutional
safeguards.
It would not be amiss to refer to the opinion of Chief Justice Moran in People vs.
Holgado, supra, where the importance of this right was stressed. Thus: “In criminal
cases there can be no fair hearing unless the accused be given an opportunity to be
heard by counsel. The right to be heard would be of little avail if it does not include
the right to be heard by counsel. Even the most intelligent or educated man may have
no skill in the science of law, particularly in the rules of procedure, and, without
counsel, he may be convicted not because he is guilty but because he does not know
how to establish his innocence. And this can happen more easily to persons who are
ignorant or uneducated. It is for this reason that the right to be assisted by counsel
is deemed so important that it has become a constitutional right and it is so
implemented that under our rules of procedure it is not enough for the court to
apprise an accused of his right to have an attorney, but it is important that the court
should assign one de oficio for him if he so desires and he is poor or grant him a
reasonable time to procure an attorney of his own. [Montilla vs. Sullano, 89 Phil.
434 (1951); People vs. Nabaluna, 101 Phil. 402 (1957); and People vs. Espejo, L-27708,
Dec. 19, 1970, 36 SCRA 400]
The purpose of providing counsel to a person under custodial investigation is to
curb the uncivilized practice of extracting confessions by coercion. Any form of
coercion whether physical, mental or emotional, in extracting confessions, stamps the
confession with total inadmissibility. We have stressed that in giving a person under
custodial investigation the right to counsel, the Court did not mean any kind of
counsel but effective and vigilant counsel. (People vs. Paule, 261 SCRA 649)
82
Right to counsel, absolute.—
The right to counsel is absolute and may be invoked at all times. More so, in the
case of an on-going litigation; it is a right that must be exercised at every step of the
way, with the lawyer faithfully keeping his client company. No arrangement or
interpretation of law could be as absurd as the position that the right to counsel exists
only in the trial courts and that thereafter, the right ceases in the pursuit of the
appeal. This is the reason why under ordinary circumstances, a lawyer can not simply
refuse anyone the counsel that only the exercise of his office can impart.
§ V. Right to Counsel may be Waived
The right to counsel de parte is not absolute. The right is not exempt from waiver.
The right to be heard by himself and counsel, a personal right guaranteed by the
Bill of Rights to an accused, just like any other personal right, may be waived.
(People vs. Cabodoc, 263 SCRA 187)
§ VI. Right of Accused to Counsel de Oficio When his Case is on Appeal
On appeal, an accused-appellant not confined in prison shall not be entitled to a
counsel de oficio, unless the appointment of such counsel is requested in the appellate
court within ten (10) days from receipt of the notice to file brief and the right thereto
is established by affidavit. (Sec. 2[2], Rule 124)
§ VII. Right to Counsel in Civil Cases
In Telan vs. Court of Appeals, et al., 202 SCRA 534, the Supreme Court said:
“We hold that they had not been accorded due process of law because they lost
their right to appeal when they were deprived of the right to counsel. Article III, Sec.
2 of the
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VOL. 276, JULY 24, 1997 83
Constitution provides: “x x x x x x. No person shall be deprived of life, liberty or
property without due process of law, nor shall any person be denied the equal
protection of the laws. The right to counsel in civil cases exists just as forcefully as in
criminal cases, especially so when as a consequence, life, liberty or property is
subjected to restraint and is in danger of loss. There is no reason why the rule in
criminal cases has to be different from that in civil cases. The pre-eminent right to
due process of law applies not only to life and liberty but also to property. There can
be no fair hearing unless a party, who is in danger of losing his house in which he and
his family live and in which he has established a modest means of livelihood is given
the right to be heard by himself and counsel.
——o0o——
84
The Need to Emphasize the Constitutional Proscription
Against Extrajudicial Confessions
ANNOTATION
THE NEED TO EMPHASIZE THE CONSTITUTIONAL PROSCRIPTION AGAINST
EXTRA-JUDICIAL CONFESSIONS
By
JULIANA C. AZARRAGA *
————————
2. § II.Constitutional guarantee, p. 47
3. § III.Constitutional guarantee given retroactive effect, p. 48
4. § IV.Where extrajudicial confession speaks the truth; Effect to its
admissibility, p. 50
5. § V.What act of self-incrimination the constitutional right embraces,
p. 50
6. § VI.Accused may be compelled to be photographed without violating
his constitutional right, p. 51
7. § VII.Duty of prosecution when presenting extrajudicial confession as
evidence in a case, p. 51
8. § VIII.Upon whom extrajudicial confession binding, p. 51
9. § IX.Requisites of an extrajudicial confession, p. 52
10. § X.Counsel must be present to assist and advise his client, p. 52
11. § XI.Custodial investigation defined, p. 53
12. § XII.When custodial investigation starts, p. 53
13. § XIII.When right to counsel attaches, p. 53
14. § XIV.When admissions made to investigating officer considered
admissible, p. 53
15. § XV.Confessions are presumed voluntary, p. 53
16. § XVI.When extrajudicial confession admissible against coaccused,
p. 54
17. § XVII.Nature of right, p. 55
18. § XVIII.Right to remain silent may be waived, p. 55
19. § XIX.Right against self-incrimination not an idle right, p. 55
———————
_____________________
*Assistant Provincial Prosecutor.

47
VOL. 277, AUGUST 11, 1997 47
§ I. Introduction
“Section 20, Article IV of the 1973 Constitution sets forth, indeed, quite a stringent
procedure. So, we held in People vs. Caguioa. x x x x x x x x x ‘Prior to any questioning,
the person must be warned that he has a right to remain silent, that any statement
he does may be used as evidence against him, and that he has a right to the presence
of an attorney, either retained or appointed. The defendant, may waive effectuation
of those rights, provided the waiver is made voluntarily, knowingly and intelligently.
If, however, he indicates in any manner and at any stage of the process that he wishes
to consult with an attorney before speaking, there can be no questioning. Likewise, if
the individual is alone, and indicates in any manner that he does not wish to be
interrogated, the police may not question him. The mere fact that he may have
answered some questions or volunteered some statements on his own does not deprive
him of the right to refrain from answering any further inquiries until he has consulted
with an attorney and thereafter consent to be questioned.” (People vs. Decierdo, 149
SCRA 497).
§ II. Constitutional guarantee
Sec. 12(1) of Article III of the Constitution provides: “Any person under investigation
for the commission of an offense shall have the right to be informed of his right to
remain silent and to have competent and independent counsel preferably of his own
choice. If the person cannot afford the services of counsel, he must be provided with
one. These rights cannot be waived except in writing and in the presence of counsel.”
Par. 3 of the same Section provides:
“Any confession or admission obtained in violation of this or Section 17 hereof shall be
inadmissible in evidence against him.”
Section 17, provides:
“No person shall be compelled to be a witness against himself.”
48
§ III. Constitutional guarantee given retroactive effect
In People vs. Dacoycoy, 208 SCRA 583, the conviction of the accused was based
solely on his extrajudicial confession which was signed and given without the
assistance of counsel. The date of the indictment is July, 1982. The accused (Latoga)
argued on appeal that the doctrine laid down in this Court’s decision in the twin cases
of Morales vs. Ponce Enrile, et al., (G.R. No. 61016) and Moncupa vs. Enrile, et
al. (G.R. No. 61107), promulgated on April 26, 1983 (121 SCRA 538),—i.e., that
during custodial investigation, the right to counsel may be waived but the waiver
shall not be valid unless made with the assistance of counsel—should apply to him,
and thus bring about rejection of his extrajudicial confession. The Solicitor General
disagrees, contending that said doctrine may not be made to operate on extra-judicial
confessions given prior to April 26, 1983 (the date the doctrine was laid down as
above-stated) in accordance with the pronouncement in People vs. Nabaluna, 142
SCRA 446 (1986), viz.:
“The Court is mindful of the strictures and pronouncements found in the case of Morales vs.
Ponce Enrile, G.R. Nos. 61106 and 61107, promulgated on April 26, 1983, 121 SCRA 538,
quoted and reiterated in the case of People vs. Galit, L-51770, March 20, 1985 and in the case
of People vs. Pascual, 109 SCRA 197, promulgated on November 12, 1981, particularly as to
the requisite steps before a person under custodial investigation may be deemed to have
properly waived his right to counsel, such as counsel being present to assist him when
the accused manifests such waiver. However, the stated requirements were laid down in the
said cases, to serve as governing guidelines, only after the judgment in this case had already
been rendered by the trial court. Consequently, no error should attach to the admission by
the trial court of the extrajudicial statements given by the accused as evidence in this case.
x x x.”
The Highest Court ruled that the appellant’s point is well taken. His extrajudicial
confession must be disallowed and his conviction set aside. The doctrine in Morales
vs. Enrile, et al., has since then been reiterated in several subsequent cases,
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VOL. 277, AUGUST 11, 1997 49
among them: People vs. Galit, 135 SCRA 465 (1985); People vs. Sison, 135 SCRA
219 (1986); People vs. Pecardal, 145 SCRA 647 (1986). In Pecardal, the Court made
the following cogent observation:
“It is true that the original requirement laid down in Morales vs. Enrile, 121 SCRA 538 was
not supported by the majority of eight required by the Constitution. Nonetheless, the doctrine
announced therein was later affirmed in People vs. Galit (135 SCRA 465) with fourteen (14)
members of the Court voting in favor and only one not taking part. The same rule was only
recently reiterated in the case of People vs. Sison (G.R. No.70906) decided last May.”
In Galit and Pecardal, it must be stressed, the principle was made to apply to
confessions given by suspects during custodial investigations prior to April 26, 1983.
In Galit, the extrajudicial confession was executed sometime in 1977; in Pecardal,
1982. The Court saw no impediment, constitutional or otherwise, to the application
of the doctrine to confessions made before April 26, 1983. The Court sees none at this
time.
All said cases, Morales, Galit, Sison, Pecardal, were resolved in light of the
provisions of Section 20 of the Bill of Rights of the 1973 Constitution reading as
follows:
“SEC. 20. No person shall be compelled to be a witness against himself. Any person under
investigation for the commission of an offense shall have the right to remain silent and to
counsel, and to be informed of such right. No force, violence, threat, intimidation, or any other
means which vitiates the free will shall be used against him. Any confession obtained in
violation of this section shall be inadmissible in evidence.”
This Court has construed the provision allowing a waiver of a suspect of
his rights while under custodial investigation. While initially, this Court’s holding
was that such a waiver was valid and could properly be given effect merely upon some
adequate showing that it had been made voluntarily, knowingly and intelligently,
(Pio vs. Royo, 114 SCRA 304, 310), its subsequent rulings imposed the requirement,
as just
50
pointed out, that the waiver of those rights be made in the presence and with
assistance of the suspect’s counsel. Of course, the 1987 Constitution—in Section 12
(1) of its Article III—now clearly and explicitly requires that the waiver be in writing
and in the presence of counsel.
§ IV. Where extrajudicial confession speaks the truth; Effect to its
admissibility
Even if the extrajudicial confession speaks the truth and was not extracted through
violence or intimidation, still, the failure of the police investigators to inform
the accused of his right to remain silent, coupled with the denial of his right to a
competent and independent counsel or the absence of effective legal assistance when
he waived his constitutional rights, rendered the confession inadmissible. (People vs.
Parel, 261 SCRA 720).
§ V. What act of self-incrimination the constitutional right embraces
Appellant’s assertion that there was violation of his right while under custodial
investigation, in light of the Miranda Doctrine, when allegedly the police
investigators unceremoniously stripped him of his clothing and personal items; and
the same were later introduced as evidence during the trial. The Court is not
persuaded. The protection of the accused under custodial investigation, which is
invoked by appellant, refers to testimonial compulsion. Sec. 12, Article III of the
Constitution provides that such accused shall have the right to be informed of his
right to remain silent, the right to counsel, and the right to waive the right to counsel
in the presence of counsel, and that any confession or admission obtained in violation
of his rights shall be inadmissible in evidence against him. (People vs. Paynot, 261
SCRA 615).
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VOL. 277, AUGUST 11, 1997 51
§ VI. Accused may be compelled to be photographed without violating his
constitutional right
As held in People vs. Gamboa, this constitutional right applies only against
testimonial compulsion and not when the body of the accused is proposed to be
examined. In fact, an accused may be validly compelled to be photographed or
measured, or his garments or shoes removed or replaced, or to move his body to enable
the foregoing things to be done, without running afoul with the proscription against
testimonial compulsion. (People vs. Paynor, supra).
§ VII. Duty of prosecution when presenting extraju-dicial confession as
evidence in a case
Absent any showing that the accused were duly advised of the mandatory guarantee
under the Bill of Rights, their extra-judicial confessions are inadmissible against
them and cannot be used in support of their conviction. (People vs. Camat, 256 SCRA
52). It is now incumbent upon the prosecution to prove during the trial that, prior to
questioning, the confessant was warned of his constitutionally
protected rights because the presumption of regularity of official acts does not apply
in custody investigation. Trial courts should further keep in mind that even if the
confession of the accused is gospel truth, it is inadmissible in evidence regardless of
the absence of coercion or even if it had been voluntarily given. (People vs. Camat,
supra).
The prosecution has the burden of proving that an accused waived his right to
remain silent and to counsel as well as showing that the evidence derived from
confessions under custodial interrogation is not tainted “as fruit of a poisonous tree.”
(People vs. Alicando, 251 SCRA 293).
§ VIII. Upon whom extrajudicial confession binding
An extrajudicial confession is binding only upon the confessant and is not admissible
against his co-accused. As against the latter, the confession is hearsay. (People vs.
Camat, supra).
52
§ IX. To be admissible in evidence, an extrajudicial confession must have the
following requisites:
1. 1.Confession must be voluntary;

2. 2.The confession must be made with the assistance of competent and
independent counsel;
3. 3.The confession must be express; and
4. 4.The confession must be in writing. (People vs. Deniega, 251 SCRA 626).
§ X. Counsel must be present to assist and advise his client

Counsel assisting accused while undergoing interrogation must be present to assist
and advise his client.
In the case of People vs. Lucero, G.R. No. 97936, May 29, 1995, the Court said:
“We hold that when the Constitution requires the right to counsel, it did not mean any kind of
counsel but effective and vigilant counsel.”
The term “effective and vigilant counsel” necessarily and logically requires that the
lawyer be present and able to advise and assist his client from the time the confessant
answers the first question asked by the investigating officer until the signing of the
confession. Moreover, the lawyer should ascertain that the confession is made
voluntarily and that the person under investigation fully understands the nature and
consequence of his extrajudicial confession in relation to his constitutional rights. A
contrary rule would undoubtedly be antagonistic to the constitutional right to remain
silent, to counsel and to be presumed innocent.
An extrajudicial confession obtained with counsel who would “come and go” and
was not at all times within the hearing distance of accused but merely “within the
premises,” and who could not remember having informed the accused of his
constitutional presumption of innocence is inadmissible. (People vs. Bacamante, 248
SCRA 47).
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VOL. 277, AUGUST 11, 1997 53
§ XI. Custodial investigation defined
“Custodial investigation” or “in custody investigation” is any questioning initiated by
law enforcement officers after a person has been taken into custody or otherwise
deprived of his freedom of action in any significant way. (Navallo vs.
Sandiganbayan, 234 SCRA 175; People vs. Marra, 236 SCRA 565).
§ XII. When custodial investigation starts
When questions are initiated by law enforcement officers after a person has been
taken into custody or otherwise deprived of his freedom of action in any significant
way. (People vs. Bandula, 232 SCRA 566).
§ XIII. When right to counsel attaches
The right to counsel attaches upon the start of an investigation, i.e., when the
investigating officer starts to ask questions to elicit informations and/or admission
from respondent/accused. (People vs. Bandula, 232 SCRA 566).
§ XIV. When admissions made to investigating officer considered admissible
Admissions made to the police by a person at a time when the police inquiry has not
reached a level wherein he is considered as a particular suspect is admissible in
evidence. (People vs. Marra, 236 SCRA 565).
§ XV. Confessions are presumed voluntary
A confession is presumed to be voluntary until the contrary is proved and the burden
of proof is upon the person making the confession. (People vs. Ruelan, 231 SCRA 650).
54
§ XVI. When extrajudicial confession admissible against co-accused
An extrajudicial confession is admissible against a coaccused when it is used as
a circumstantial evidence to show the probability of participation of the said co-
accused in the crime committed. (People vs. Guzman, 231 SCRA 737).
An extrajudicial confession independently made without collusion which are
identical with each other in their essential details and are corroborated by other
evidence on record are admissible as circumstantial evidence against the person
implicated. This doctrine is inapplicable therefore in a case where there is only the
solitary confession of appellant. (People vs. Barlis, 231 SCRA 426).
Case:
Having received information that a man in security guard’s uniform was involved in
the incident, they sought information from a security guard of a nearby bus terminal.
Said security guard pointed them to Marra, who at the time was eating in a carinderia
nearby. Informed by Marra that his gun was at his residence, they all went to Marra’s
residence to get the same. After receiving said firearm, De Vera asked appellant why
he killed Tandoc but Marra initially denied any participation in the killing.
Nevertheless, when confronted with the fact that somebody saw him do it, Marra
admitted the act although he alleged it was done in self-defense. This testimony of
De Vera as to the confession of Marra is of significant weight but the admissibility
thereof shall also be passed upon. The critical inquiry then is whether Marra was
under custodial investigation when he admitted the killing but invoked self-defense.
We believe that he was not so situated. In the case at bar, appellant was not under
custodial investigation when he made the admissions. There was no coercion
whatsoever to compel him to make such a statement. Indeed, he could have refused
to answer questions from the very start when policemen requested that they all go to
his residence. The police inquiry had not yet reached a level wherein they considered
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VOL. 277, AUGUST 11, 1997 55
him as a particular suspect. They were just probing into a number of possibilities,
having been merely informed that the suspect was wearing what could be a security
guard’s uniform. (People vs. Marra, supra).
§ XVII. Nature of right
Under the modified formulation in the 1987 Constitution, a confession taken in
violation of Secs. 12 and 17, Article III “shall be inadmissible in evidence against
him,” meaning the confessant, and the objection can be raised only by the confessant
whose rights have been violated since such right is personal in nature. (People vs.
Balisteros, 237 SCRA 499).
An extrajudicial confession repeated in court is converted into a judicial confession
which, if admitted or allowed by the trial court, eliminates the need for assistance of
counsel. (People vs. Balisteros, supra).
§ XVIII. Right to remain silent may be waived
By voluntarily executing his extrajudicial confession after having been informed of
his constitutional rights, and in the presence of and with the assistance of counsel,
appellant effectively waived his right to remain silent. (People vs. Ruelan, supra).
The privilege against self-incrimination is personal and may be invoked only by
the person to whom it belongs. (People vs. Merabuena, 239 SCRA 197).
§ XIX. Right against self-incrimination not an idle right
The right against self-incrimination expressed in the Constitution is not, indeed, an
idle right. It strikes at the very foundation of modern civilization. Time and again
this Court has so emphasized. We said in People vs. Alegre y Cerdoncillo. x x x x x x
x x x The right or privilege of a person accused of a crime against self-incrimination
is a fundamental right. It is a personal right of great importance and is given
absolutely
56
and unequivocably. The privilege against self-incrimination is an important
development in man’s struggle for liberty. It reflects man’s fundamental values and
his most noble of aspirations, the unwillingness of civilized men to subject those
suspected of crime to the cruel trilemma of self-accusation, perjury or contempt, the
fear that self-incriminating statement may be obtained by inhumane treatment and
abuses, and the respect for the inviolability of the human personality and of the right
of each individual “to a private enclave where he may lead a private life.”
——o0o——
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VOL. 321, DECEMBER 21, 1999 319
The Meaning and Scope of the Right to Counsel
ANNOTATION
THE MEANING AND SCOPE OF THE RIGHT TO COUNSEL
By
JORGE R. COQUIA *
______________
1. 1.Historical Background of the Right to Counsel, p. 320

2. 2.History of the Right to Counsel in the Philippines, p. 322
3. 3.Right to Counsel as a Human Right, p. 323
4. 4.Basic Elements of the Right to Counsel, p. 324
5. 5.Right to Counsel Proceeds from Due Process, p. 324
6. 6.Right to Counsel Includes Police Custodial Investigation of Suspect,
p. 324
7. 7.Waiver of the Right to Counsel, p. 325
8. 8.Right to Counsel Starts from Custodial Investigation and Continues
p to Appeal, p. 326
9. 9.Duties of the Court to Inform the Accused of His Right to Co nsel D
ring Arraignment, p. 326
10. 10.Presumption of Regularit of Compliance ith the Duty of the Court,
p. 327
11. 11.Rationale of the Rule, p. 328
12. 12.Effect of E Extra-Judicial Confessions by an Arrested Person
Without Counsel, p. 329
13. 13.Right to Counsel Exists Even if Accused Confesses, p. 329
14. 14.Waiver of Counsel Must be Voluntar and Intelligently Made by
Detained Person, p. 330
15. 15.Court Appointed Counsel Must be Competent and Independent
and Sincerel Committed to the Ca se of the Defense, p. 330
16. 16.When Right to Counsel Ma Not be In Voked, p. 331
17. 17.Right to Counsel in Police Line-Up, p. 332
________________
* Member of Board of Editorial Consultants, Supreme Court Reports Annotated.

320
1. 18.Right to Counsel Exists p to Appeal, p. 332

2. 19.Right to Counsel Also be Invoked in Quasi-Judicial Bodies, p. 333
______________
The right to counsel of the accused in a criminal case is expressly guaranteed by the
Constitution. It is also an essential element of due process as ruled by the Supreme
Court in People of the Philippines v. Leoncio Santocildes, Jr. y Siga-an, G.R. Nos.
109149, promulgated on December 21, 1999.
This case concerned an accused who was convicted for a crime of rape by the trial
court. He was represented by an individual who represented himself as a lawyer
when in fact he was not admitted by the Supreme Court to practice law. The Supreme
Court, on appeal, set aside the decision and remanded the case to the trial court for
a new trial. Similar to this case was Telan vs. Court of Appeals, 202 SCRA 534 (1991)
where the Supreme Court held that representatives of a liti-gant by a fake lawyer
amounts to denial of the right to counsel.
This emphasizes the importance of the right to counsel to defend an accused in a
criminal case. Moreover, the counsel especially if he is an appointed lawyer de oficio
must be competent and independent one. The Supreme Court in a number of cases
has chided counsels de oficio who do defend cases half-heartedly as they are not
compensated as it amounts to denial of the right to counsel.
1. Historical Background of the Right to Counsel
The right to counsel was not originally included among the rights of the accused. It
was during the early part of the 18th century when the American judicial system
adopted the institution of a public prosecutor. An ordinary layman not acquainted
with court procedures was placed at a disadvantage to face a government prosecutor.
The US Supreme Court in Johnson vs. Zerbet, 304 US 458 (1938) said that the right
to counsel “embodies a realistic recognition of the obvious truth
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VOL. 321, DECEMBER 21, 1999 321
the average defendant does not have the professional skill to protect himself when
brought before a tribunal with power to take his life or liberty, wherein the
prosecution is presented by an experienced and learned counsel.”
The right to counsel was eventually included in the Sixth Amendment of the U.S.
Constitution which was ratified on December 15, 1792. The Sixth Amendment to the
U.S. Constitution reads:
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial,
by an impartial jury of the State and district wherein the crime shall have been committed,
which district shall have been previously ascertained by law, and to be informed of the nature
and cause of the accusation; to be confronted with the witnesses against him; to have
compulsory process for obtaining witnesses in his favor; and to have the Assistance of Counsel
for his defense.”
The U.S. Supreme Court began to deal with the question of right to counsel under the
Due Process Clause in Powell vs. Alabama, 287 U.S. 45 (1932). In the Powell case,
however, the Court had held that counsel had to be appointed for indigent defendants
in all state capital cases because the absence of counsel would deny the defendant
that “fair procedure” required by the Due Process Clause. In noncapital cases, the
Court subsequently held, counsel might or might not be required in order for the
states to accord the defendant the procedural fairness required by due process
depending upon the nature of the defendant and the conduct of the trial. If the
defendant were a youth, or mentally low intelligence, or otherwise handicapped, or if
the judge or prosecutor took advantage of a defendant who was without counsel, then
the Court would hold that counsel was required in a state noncapital case. If such
factors did not exist, the Court would hold that the defendant had been accorded the
procedural fairness required by the Due Process Clause, even though the defendant
were an indigent and could not afford to hire counsel. In contrast to this treatment of
state cases, the Court construed the Sixth Amendment as requiring the federal
government to
322
appoint counsel for all indigent defendants being tried for serious federal crimes. And
in Gideon vs. Wainwight, 372 US 335 (1965) the Court simply held that states also
were required by the Due Process Clause to appoint counsel for all indigent
defendants in state felony cases regardless of whether the case were a capital or
noncapital case, since the right to counsel guaranteed by the Sixth Amendment was
fully applicable to the states via the Due Process Clause of the Fourteenth
Amendment. In Escobedo vs. Illinois, 378 US 478 (1964), the US Supreme Court
ruled that the right to counsel attaches as soon as the individual becomes the suspect
of police investigation. The constitutional right extends to appellate procedures
(Douglas vs. California, 372 US 353 [1963]).
2. Histor of the Right to Counsel in the Philippines
Section 17 of General Order No. 58 (April 23, 1900) which introduced the American
judicial system on criminal procedure provided for the right of counsel for
the accused. The said provision was applied by the Supreme Court in U.S. vs.
Gimero, 1 Phil. 250 (1902) where the Court held that the defendant who had no
lawyer must be informed by the Court that he has the right to be represented by
counsel before his arraignment.
President McKinley’s Instructions to the Philippine Commission (1900) provided
that the accused must have the assistance of counsel. Section 5 of the Philippine Bill
of 1902 provided that in “all criminal prosecutions, the accused shall enjoy the right
to be heard by himself and counsel.”
The Philippine Autonomy Act, known as the Jones Law (1916), contained a similar
provision that in “all criminal prosecutions the accused shall enjoy the right to be
heard by himself or counsel x x x”
The 1935 Philippine constitution carried a similar provision (Article III, Section 2
[17]). The 1973 provided the same guarantees.
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VOL. 321, DECEMBER 21, 1999 323
Article III, Section 12 (1) of the 1987 Constitution reads:
“Any person under investigation for the commission of an offense shall have the right to be
informed of his right to remain silent and to have competent and independent counsel
preferably of his own choice. If the person cannot afford the services of counsel, he must be
provided with one. These rights cannot be waived except in writing and in the presence of
counsel.”
3. Right to Counsel as a Human Right
Article 14, Section 3 of the International Covenant on Civil and Political Rights has
a mere detailed provision on the right to assistance to counsel, which reads:
“In the determination of any criminal charge against him, everyone shall be entitled to the
following minimum guarantees, in full equality:
1. (a)To be informed promptly and in detail in a language which he understands of the

nature and cause of the charge against him;
2. (b)To have adequate time and facilities for the preparation of his defence and to
communicate with counsel of his own choosing;
3. (c)To be tried without undue delay;
4. (d)To be tried in his presence, and to defend himself in person or through legal
assistance of his own choosing; to be informed, if he does not have legal assistance, of
this right; and to have legal assistance assigned to him; in any case where the interests
of justice so require, and without payment by him in any such case if he dies not have
sufficient means to pay for it;
5. (e)To examine, or have examined, the witnesses against him and to obtain the
attendance and examination of witnesses on his behalf under the same conditions as
witnesses against him;
6. (f)To have the free assistance of an interpreter if he cannot understand or speak the
language used in court;
7. (g)Not to be compelled to testify against himself or to confess guilt. (Italics supplied)
324
4. Basic Elements of the Right to Counsel
From Philippine Supreme Court decisions, there are five elements of the right to
counsel, namely: (1) The accused has the right to hire a counsel of his own choice;
(2) In case the accused appears in court without counsel, it is the duty to inform him
of his right of counsel to defend him; (3) The court must ask him if his wishes to hire
one if he can afford to be represented by counsel; (4) If the accused cannot afford to
hire a paid counsel, the court should inform him that it will appoint one to represent
him for his defense; (5) If no lawyers are available, the court may appoint reputable
lawyers who may be in the premises of the court.
The constitution and the International Covenant on Civil and
Political Rights state that the counsel should be the accused’s own choosing.
5. Right to Counsel Proceeds from Due Process
The right to counsel proceeds from the fundamental principle of due process which
basically means that a person must be heard before being condemned (People vs.
Bermas, 306 SCRA 135 [1999]). It means that the accused is accorded legal
assistance by a counsel who commits himself to its cause of the defense and acts
accordingly (Jd).
6. Right to Counsel Includes Police Custodial Investigation of Susspect
Section 2(b) of Republic Act 7438 which defines the rights of persons under police
custodial investigation reads:
“Any public officer or employee, or anyone acting under his order or in his place, who arrests,
detains or investigates any person for the commission of an offense shall inform the latter, in
a language known to and understand by him, of his rights to remain silent, and to have a
competent and independent counsel, preferably of his own choice, who shall at all times be
allowed to confer private with the person arrested, detained or under custodial investigation.
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VOL. 321, DECEMBER 21, 1999 325
If such person cannot afford the services of his own counsel, he must be provided with a
competent and independent counsel by the investigating officer.”
Any extrajudicial confession made by a person arrested shall be in the presence of
counsel. Section 2(d) of the Republic Act 7438 reads:
Any extrajudicial confession made by a person arrested, detained or under custodial
investigation shall be in writing and signed by such person in the presence of his counsel or
in the latter’s absence, upon a valid waiver, and in the presence of any of the parents, older
brothers and sisters, his spouse, the municipal mayor, the municipal judge, district school
supervisor, or priest or minister of the gospel as chosen by him; otherwise, such extrajudicial
confession shall be inadmissible as evidence in evidence in any proceeding.
7. Waiver of the Right to Counsel
Generally, the right of the accused to counsel may not be waived. The Supreme
Court in People vs. Holgado, 85 Phil. 752 (1950), it was held that:
“In criminal cases there can be no fair hearing unless the accused be given an opportunity
to be heard by counsel. The right to be heard would be of little avail if it does not include the
right to be heard by counsel. Even the most intelligent or educated man may have no skill in
the science of the law, particularly in the rules of procedure, and, without counsel, he may be
convicted not because he is guilty but because he does not know how to establish his
innocence. And this can happen more easily to persons who are ignorant or uneducated. It is
for this reason that the right to be assisted by counsel is deemed so important that it has
become a constitutional right and it is so implemented that under our rules of procedure it is
not enough for the Court to apprise an accused of his right to have an attorney, it is not
enough to ask him whether he desires the aid of an attorney, but it is essential that the court
should assign one de oficio for him if he so desires and he is poor or grant him a reasonable
time to procure an attorney of his own.”
In this case the trial judge inquired from the accused if he has a lawyer to assist him
during arraignment. The accused
326
said that he has none and he was ready to plead guilty. The Supreme Court held that
he was denied the right to counsel.
Even during police custodial investigation, any waiver of the right to counsel by
the person arrested must be signed and in writing in the presence of counsel. Article
2(e) of Republic Act No. 7438 reads:
“Any waiver by a person arrested or detained under the provisions of Article 125 of the
Revised Penal Code, or under custodial investigation, shall be in writing and signed by such
person in the presence of his counsel; otherwise such waiver shall be null and void and no
effect.”
8. Right to Counsel Starts from Custodial Investigation and Continues p to
Appeal
The right to counsel is absolute and may be invoked at all times. More so, in the case
of an on-going litigation, it is a right that must be exercised at every step of the way.
To hold that the right to counsel exists only in the trial courts and that thereafter,
the right ceases in the pursuit of the appeal, is an absurd interpretation of the law.
(Telan vs. Court of Appeals, 202 SCRA 534 [1991])
9. Duties of the Court to Inform the Accused of His Right to Counsel During
Arraignment
The court is duty-bound to inform the accused of his right to counsel. From the time
of investigation. Article III, Sec. 12(1) of the Philippine Constitution reads:
“Any person under investigation for the commission of an offense shall have the right to be
informed of his right to remain silent and to have competent and independent counsel
preferably of his own choice. If the person cannot afford the services of counsel, he must be
provided with one. These rights cannot be waived except in writing and in the presence of
counsel.”
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VOL. 321, DECEMBER 21, 1999 327
After arraignment with the assistance of counsel, and the accused appeared without
counsel during the hearing of the case he is deemed to have waived his right to
counsel. The duty of the court to appoint a counsel de oficio when the accused has
no legal counsel of choice desires to employ the services of one is mandatory only at
the time of arraignment. (Rule 116, Section 6, Revised Rules of Court) In Sayson vs.
People, 166 SCRA 680 (1988) it was ruled that after the arraignment of
the accused with counsel of his choice but when the time for the presentation of the
evidence for the defense has arrived, he appears by himself alone and the absence of
his counsel was inexcusable, the court’s holding in a previous case that there is no
deprivation of the right to counsel in such a case is squarely applicable as the
appellant was represented by counsel of his choice at the arraignment, trial and in
the incidental motions to dismiss and to postpone the resumption of the trial of the
case, the trial court was not in duty bound to appoint a counsel de oficio to assist him
in his defense. His failure to appear with counsel of his choice at the hearing of the
case, notwithstanding repeated postponements and warnings that failure to so
appear would be deemed a waiver on the part of the appellant to present his evidence
and the case would be deemed submitted for decision upon the evidence presented by
the prosecution, was sufficient legal justification for the trial court to proceed and
render judgment upon the evidence before it. (Sayson vs. People, 166 SCRA
680 [1988])
10. Presumption of Regularity of Compliance with the Duty of the Court
In all cases wherein the accused is not defended by counsel the record should be
made to show affirmatively that the trial judge has complied with the provisions of
the statute. In the absence of an affirmative showing that the trial court failed to
advise the accused of their rights the court below must be presumed in matters of
this kind to have complied with the provisions of law. (U.S. vs. Labial, 27 Phil.
82 [1914])
328
In People vs. Agbayani, 284 SCRA 315 (1998), the court held that the failure of the
record to disclose affirmatively that the trial judge advised the accused of his right
to counsel is not sufficient ground to reverse conviction. The trial court must be
presumed to have complied with the procedure prescribed by law for the hearing and
trial of cases, and that such a presumption can only be overcome by an affirmative
showing to the contrary.
However, the Court in Pueblo Contra Domenden, 73 Phil. 349 (1941), held that
provisions of the law must be strictly followed. The court in said case ruled that not
finding in the record such matter, the case was remanded to the trial court for new
trial. Similarly in People vs. Tolentino, 145 SCRA 597 (1986), the court held that the
presumption of regularity of performance of official duty does not apply to in-custody
confessions. The prosecution must prove compliance with constitutional
requirements.
11. Rationale of the Rule
In criminal cases there can be no fair hearing unless the accused be given an
opportunity to be heard by counsel. The right to be heard would be of little avail if it
does not include the right to be heard by counsel. Even the most intelligent or
educated man may have no skill in the science of the law, particularly in the rules of
procedure, and, without counsel, he may be convicted not because he is guilty but
because he does not know how to establish his innocence. And this can happen more
easily to persons who are ignorant or uneducated. It is for this reason that the right
to be assisted by counsel is deemed so important that it has become a constitutional
right and it is so implemented that under our rules of procedure it is not enough for
the Court to apprise an accused of his right to have an attorney, it is not enough to
ask him whether he desires the aid of an attorney, but it is essential that the court
should assign one de oficio for him if he so desires and he is poor or grant him a
reasonable time to pro-
329
VOL. 321, DECEMBER 21, 1999 329
cure an attorney of his own. (People vs. Holgado, 85 Phil. 752 [1950])
12. Effect of E tra-Judicial Confessions by an Arrested Person Without
Counsel
Even if the confession of an accused speaks the truth, if it was made without the
assistance of counsel, it is inadmissible in evidence regardless of the absence of
coercion or even if it had been voluntarily given. (People vs. Cabiles, 284 SCRA
199 [1998])
The Constitution abhors an uncounselled confession or admission and whatever
information is derived therefrom shall be regarded as inadmissible in evidence
against the confessant. (People vs. Tan, 286 SCRA 207 [1998])
The settled rule is that an uncounselled extrajudicial confession without a valid
waiver of the right to counsel—that is, in writing and in the presence of counsel, is
inadmissible in evidence. (People vs. Quidato, Jr., 297 SCRA 1 [1998])
The invalid waiver of the right to counsel during custodial investigation makes the
uncounselled confession, whether verbal or non-verbal, obtained in violation thereof
as also inadmissible in evidence. (People vs. Olivarez, Jr., 299 SCRA 635 [1998])
The appellant could not have validly waived his constitutional right to counsel
without the presence and assistance of counsel. (People vs. Mendoza, 174 SCRA
432 [1989])
13. Right to Counsel Exists Even if Accused Confesses
Even if the confession of an accused is gospel truth, if it was made without the
assistance of counsel, it is inadmissible in evidence regardless of the absence of
coercion or even if it had been voluntarily given. (People vs. Penillos, 205 SCRA
546 [1992])
330
14. Waiver of Counsel Must be Voluntar and Intelligently Made by Detained
Person
The waiver of the constitutional rights must be made not only voluntarily, knowingly
and intelligently, but, in any case, in the presence and with the assistance of counsel.
(People vs. Olapani, 179 SCRA 495 [1989])
An accused is denied his right to counsel where he could not understand and
communicate with the counsel he was provided with concerning his defense. He is
also denied his right to have compulsory process where he was not provided the
services of a qualified and competent interpreter to enable him to present his
testimony. (People vs. Cuizon, 256 SCRA 325 [1996])
Pictures of the reenactment depicting the accused’s role in the commission of the
crime cannot be utilized as evidence of his participation where the reenactment was
conducted without any lawyer assisting the accused. (People vs. Suarez, 267 SCRA
119 [1997])
15. Court Appointed Counsel Must be Competent and Independent and
Sincerel Committed to the Case of the Defense
If the lawyer were one furnished in the accused’s behalf, it is important that he
should be competent and independent, i.e., that he is willing to fully safeguard the
constitutional rights of the accused, as distinguished from one who would merely
be giving a routine, peremptory and meaningless recital of the individual’s
constitutional rights. (People vs. Januario, 267 SCRA 608 [1997])
Under the circumstance described by the prosecution, Atty. Saunar could not have
been the independent counsel solemnly spoken of by the Constitution. (People vs.
Januario, 267 SCRA 608 [1997]). In the said case, the accused made oral admission
without a counsel. The court in (People vs. Alcantara, 240 SCRA 122 [1995]) said:
331
VOL. 321, DECEMBER 21, 1999 331
“We have not only constitutionalized the Miranda warnings in our jurisdiction. We have also
adopted the libertian exclusionary rules known as the ‘fruit of the poisonous tree,’ a phrase
minted by Mr. Justice Felix Frankfurter in the celebrated case of Nardone v. United States.
According to this rule, one the primary source (the ‘tree’) is shown to have been unlawfully
obtained, any secondary or derivative evidence (the ‘fruit’) derived from it is also
inadmissible. Stated otherwise, illegally seized evidence is obtained as a direct result of the
illegal act, whereas the ‘fruit of the poisonous tree’ is the indirect result of the same illegal
act. The ‘fruit of the poisonous tree’ is at least once removed from the illegally seized evidence,
but is equally inadmissible. The rule is based on the principle that evidence illegally obtained
by the State should not be used to gain other evidence because the originally illegally
obtained evidence taints all evidence subsequently obtained.”
The Constitution explicitly declares that a person being investigated by the police as
a suspect in an offense has the right, among others, to have competent and
independent counsel preferably of his own choice and if he cannot afford the services
of counsel, he must be provided with one; and that said right cannot be waived except
in writing and in the presence of counsel. (People vs. Jimenez, 204 SCRA 719 [1991])
The extrajudicial confession has no probative value as it was taken without a
competent and independent counsel present to assist the appellant (People vs.
Bueza, 188 SCRA 683; People vs. Kidagan, 188 SCRA 763 [1990])
In People vs. Bermas, 306 SCRA 135 (1999), the Court held that a mere pro-forma
appointment of de oficio counsel who fails to genuinely protect the interests of
the accused merits disapprobation.
16. When Right to Counsel May Not be Invoked
The right to counsel of a person under custodial investigation cannot be invoked until
such time that the police investigators start questioning, interrogating or exacting a
confes-
332
sion from the person under investigation. (People vs. Loveria, 187 SCRA 47 [1990])
Since the appellant was not investigated when Manzanero was in the process of
identifying him, he cannot claim that his right to counsel was violated because at that
stage, he was not entitled to the constitutional guarantee invoked. (People vs.
Loveria, 187 SCRA 47 [1990])
17. Right to Counsel in Police Line-Up
Police line-up is not part of the custodial investigation, hence, the petition is not yet
entitled to counsel. (Gamba vs. Cruz, 162 SCRA 642 [1988]). In the instant case,
appellants were identified by the complainants at the police line-ups the former had
not yet been held to answer for the criminal offense for which they have been charged
and convicted. The police could not have, therefore, violated their right to counsel and
due process as the confrontation between the States and them had not yet begun. As
held in the case of Gamboa vs. Cruz, supra, police line-up is not yet part of the
custodial inquest, hence, the appellants were not yet entitled, at such stage, to
counsel.
In People vs. Domantay, 307 SCRA 1 (1999), the Court held that the confession of
an accused to a radio reporter without counsel was admissible in court. It was not
shown that the radio reporter was acting for the police.
18. Right to Counsel Exists p to Appeal
Right to a counsel de oficio does not cease upon the conviction of an accused by a
trial court, it continues even during appeal. (People vs. Rio, 201 SCRA 702 [1991])
Right to counsel is absolute and may be invoked at all times. (Telan vs. Court of
Appeals, 202 SCRA 534 [1991])
In People vs. Domantay, 307 SCRA 1 (1999) the court held that the confession of
an accused to a radio reporter without counsel was admissible in court. It was not
shown that the radio reporter was acting for the police.
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VOL. 321, DECEMBER 21, 1999 333
In People vs. Macam, 238 SCRA 306 (1994), the Court held that where the
prosecution did not present evidence regarding appellants’ identification at the police
line-up, the exclusionary sanctions against the admission in evidence of custodial
identification of an uncounselled accused can not be applied.
19. Right to Counsel Also be Invoked in QuasiJudicial Bodies
The right to counsel, a very basic requirement of substantive due process, has to be
observed even in quasi-judicial bodies. (Salaw vs. National Labor Relations
Commission, 202 SCRA 7 [1991])
——o0o——
334
There Are No “Short Cuts” To Due Process of Law In
Criminal Cases
ANNOTATION
THERE ARE NO “SHORT CUTS” TO DUE PROCESS OF LAW IN CRIMINAL
CASES
By
JORGE R. COQUIA *
——————
1. § 1.Historical Origin and Development of Due Process of Law, p. 316

2. § 2.Due Process in General, p. 317
3. § 3.Due Process as Human Rights, p. 318
4. § 4.Various Aspects of Due Process, p. 319
5. § 5.Due Process in Criminal Cases, p. 320
6. § 6.Presumption of Innocence, p. 321
7. § 7.The Decision of the Trial Court Was Not Based On The Evidence
Presented in Court, p. 322
8. § 8.No “Short Cuts” to Due Process, p. 322
——————
The Supreme Court in Bayani Alonte, petitioner, versus Hon. Maximo Savellano, Jr.,
National Bureau of Investigation and People of the Philippines, respondents, G.R. No.
131652, 9 March 1998, has emphasized that there are no short cuts to due process of
law. This is more so in a criminal prosecution where the life or liberty of the individual
is at stake.
The facts of the case are so peculiar, as it was also sensational, for one of
the accused was the municipal mayor who was charged with rape of a 16-year old
girl in a town in Laguna. Apprehensive of a mistrial in the town where
the accused are influential, the complainant, through private counsel, filed a
petition with the Supreme Court praying for a
_______________
*Member, Board of Editorial Consultants of the Supreme Court Reports Annotated (SCRA).
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VOL. 287, MARCH 9, 1998 315
Criminal Cases
change of venue from Biñan, Laguna to any of the Regional Trial Courts in Metro
Manila.
During the pendency of the petition, the complainant in the rape case executed an
Affidavit of Desistance. Without pardoning the accused, the complainant with the
assistance of her parents, decided to withdraw her complaint alleging that the legal
processes have been moving so slowly causing her so much anxiety and that she and
her family have been living an abnormal life. She also expressed fears of reprisals
should the accused be found guilty.
A motion to dismiss the petition for change of venue was filed by counsel on the
ground that the complainant in the rape case had filed her affidavit of desistance.
Nonetheless, the Supreme Court issued a Resolution (Administrative Matter No. 97-
1-12-RTC) granting the petition for change of venue and ordering the case to be
raffled to any of the RTC branches in Manila. With the said case raffled to Branch
53, RTC Manila, presided by Respondent Judge Maximo A. Savellano, Jr., the private
complainant eventually submitted her Affidavit of Desistance reiterating her desire
to withdraw her complaint. Respondent Judge, instead, issued warrants of arrest on
the accused Alonte and Concepcion. The accused Alonte voluntarily surrendered to
the NBI Director while the other accused posted a bail bond.
During their arraignment, the accused waived the pre-trial proceedings and the
trial court forthwith proceeded with the trial of the case on the merits.
The only evidence presented by the prosecution were the testimonies of the
complainant and her parents affirming the validity and voluntariness of the Affidavit
of Desistance.
The complainant stated that she had no intention of giving positive testimony to
support her charge for rape. The public prosecutor then manifested that, with the
complainant’s desistance and affirmed by her parents, the State has no evidence to
prove the guilt of the accused. The Respondent Judge forthwith considered the case
deemed submitted for decision.
316
Criminal Cases
The accused filed several motions for the grant of bail to which the prosecution
interposed no objection. The accused filed four motions for the admission of their
bail bond and an early resolution of the case, all of which were not acted upon by the
Respondent Judge.
On December 18, 1997, upon notice to the parties, the Judge promulgated the
decisions finding both accused guilty beyond reasonable doubt of the heinous crime
and sentencing them of the penalty of reclusion perpetua.
This case is one of first impression in many ways. Principally, the case raised
several aspects of due process in criminal procedure. The Supreme Court precisely
set aside the judgment of the Respondent Judge convicting the accused for failure of
due process. The controversial decision also raised several constitutional issues
namely, that no person shall be deprived of life, liberty or property without due
process of law (Art. III, sec. 1). In all criminal prosecutions, the accused shall be
presumed innocent until the contrary is proved (Art. III, sec. 14[2], the right of
confrontation of witnesses. There was also the violation of the rule that no decision
shall be rendered by any court without expressing therein clearly and distinctly the
facts and the law on which it is based (Art. III, Sec. 14[2]).
Furthermore, the order of trial in criminal cases as provided for in Rule 119,
Section 3, Rules of Court was not complied with.
§ 1. Historical Origin and Development of Due Process of Law
The concept of due process of law started with the beginning of law making in the
13th century in England. It was during King Eduard I’s day when a professional class
of temporal lawyers became prominent in England invoking the rule of law in cases
of violation of the liberty of individuals. The Great Charter of Liberties, was delivered
on July 19, 1215 by King John of Runneymeade, called the Magna Carta securing the
personal liberty and civil rights.
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VOL. 287, MARCH 9, 1998 317
Criminal Cases
The 39th Chapter of the Magna Carta states that “no man shall be taken of
imprisoned or deserted or outlawed, or is in a manner destroyed, nor shall we go upon
him, nor send upon him, but by lawful judgment of his peers or by the law of the land.”
The principles of due process of law were adopted during the French Revolution
and in the Bill of Rights in the US Constitution. The Malolos Constitution adopted
in Barasoain in 1899 introduced for the first time in the Philippines the due process
of law concept. Eventually, all the fundamental laws promulgated by the United
States starting with President McKinley’s instruction to the Second Philippine
Commission, the Philippine Bill of 1902, the Philippine Autonomy of 1916 known as
the Jones Law, the Philippine Independence Law known the Tydings McDuffie Law
of 1934 and the 1935 Philippine Constitution had included the due process of law
concept. The 1973 Constitution of the Philippines, the first fundamental law without
any colonial intervention incorporated the Bill of Rights of the 1935 Philippine
Constitution and were further strengthened in the 1987 Constitution.
§ 2. Due Process in General
Due process of law in general has been understood in several ways. In its early
decisions, the Philippine Supreme Court ruled that due process is any legal
proceedings enforced by public authority whether sanctioned by age and custom or
newly devised in the discretion of the legislative power in furtherance of general
public good, which regards and preserves these principles of liberty and justice (U.S.
vs. McGovern, 6 Phil. 613).
In U.S. vs. Ocampo, 18 Phil. 38, the Supreme Court said that due process is the
law in its regular course of administration through the courts of justice.
The requirement that no person shall be held to answer for a criminal offense
“without due process of law” simply requires that the procedure fully protects the life,
liberty and property of the citizens of the state, then, it will be held to be
318
Criminal Cases
“due process of law” (U.S. vs. Ocampo, 18 Phil. 14). Relating to higher crimes, due
process of law is said to denote a lawful indictment or presentiment of good and lawful
men in public trial before a court of competent jurisdiction (Duran vs. Abad
Santos, 75 Phil. 433).
Due process of law does not necessarily mean a judicial proceeding in the regular
courts. The guarantee of due process, viewed in its procedural aspect, requires no
particular form of procedure. It implies due notice to the individual of the
proceedings, an opportunity to defend himself and the problem of the deprivations,
under the circumstances presented, must be resolved in a manner consistent with
essential fairness. It means essentially a fair and impartial trial and reasonable
opportunity for the preparation of defense. (Aquino vs. Military Commission, 63
SCRA 576 [1975]).
As applied to judicial proceedings, due process requires: 1) a court or tribunal
clothed with judicial power to hear and determine the matter before it; 2) jurisdiction
lawfully acquired over the person of the defendant or over the property subject of the
proceedings; 3) an opportunity given to the defendant to be heard; and 4) judgment
rendered upon lawful hearing (Banco Español-Filipino vs. Palanca, 37 Phil. 934).
§ 3. Due Process as Human Rights
Article 11(1) of the Universal Declaration of Human Rights states: “Everyone
charged with a penal offence has the right to be presumed innocent until proved guilty
according to law in a public trial at which he has had all the guarantees necessary
for his defence.”
Art. 14(3) of the International Covenant on Civil and Political Rights provides
that “in the determination of any criminal charge against him everyone shall be
entitled to the following minimum guarantees, in full equality:
a) To be informed promptly and in detail in a language which he understands of the nature
and cause of the charge against him;
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VOL. 287, MARCH 9, 1998 319
Criminal Cases
1. b)To have adequate time and facilities for the preparation of his defense and
to communicate with counsel of his own choosing;
2. c)To be tried without undue delay;
3. d)To be tried in his presence, and to defend himself in person or he does not
have legal assistance, of this right; and to have legal justice so require, and
without payment by him in any such case if he does not have sufficient means
to pay for it;
4. e)To examine, or have examined, the witnesses against him and behalf under
the same conditions as witnesses against him;
5. f)To have the free assistance of an interpreter if he cannot understand or speak
the language used in court;
6. (g)Not to be compelled to testify against himself or to confess guilt.”
§ 4. Various Aspects of Due Process

Substantive due process is a restriction in government power which are oppressive
(Kwong Sing vs. City of Manila, 4 Phil. 103; Layno vs. Sandiganbayan, 136 SCRA
536 [1985]; Deloso vs. Sandiganbayan, 173 SCRA 409 [1989]).
Procedural due process means restrictions on actions of judicial and quasi-judicial
bodies. Procedural due process requires (a) an impartial court and tribunal
empowered to hear and decide cases before it (Galman vs. Sandiganbayan, 144 SCRA
43 [1986]); (b) the court or tribunal has jurisdiction over the person or subject matter
of the case; (c) the defendant must be given an opportunity to be heard with a right
of confrontation of witnesses; (d) the judgment must be entered upon lawful hearing
and must be based on evidence presented to the court or tribunal. Criminal due
process means that (1) the accused has been heard in a court of competent
jurisdiction; (2) the accused proceeded against under the orderly processes of law;
(3) the accused has been given notice and opportunity to be heard; (4) the judgment
was within the
320
Criminal Cases
authority of constitutional law (Mejia vs. Pamaran, 160 SCRA 457 [1988]).
§ 5. Due Process in Criminal Cases
It is a well-established principle that a person accused of a crime is presumed to be
innocent until the contrary is proved. The State has the burden of establishing all the
essential elements on this presumption of innocence withholding all proofs until the
prosecution has established complete case (People of the Philippines vs. Quiazon, 78
SCRA 513 [1997]).
The trial and conviction of any individual charged with criminal case required
strict compliance with principle of due process. Strict compliance with due process
starts from the arrest of any individual that he may be bound to answer for the
commission of an offense (Rule 113, Sec. 1, Rules of Court). The basic requirement of
issuance of warrant of arrest have to be complied with in the preliminary
investigation to be conducted by a judicial officer (Rule 112, Sec. 1, Rules of Court).
The preliminary investigation is intended to protect the accused from the
inconvenience, expense and burden in defending himself in formal trial unless the
reasonable probability of his guilt is ascertained and a fairly regular proceedings
being competent. (Tandoc vs. Resultan, 175 SCRA 37).
Due process demands that the accused in a criminal case should be informed of
the nature of the offense with which he is charged before is put to trial.
An accused cannot be convicted of rape when the evidence shows that the rape was
committed on some other date indicated in the information (People vs. Cruz, 259
SCRA 109 [1996]). On the other hand, precipitate dismissal of the criminal case is
tantamount to denying the state due process (People vs. Leviste, 255 SCRA
232 [1996]).
The decision convicting the accused of crime of rape in this case
under annotation which does not contain any positive evidence presented by
prosecution was a violation of the basic principle of judgment in criminal cases.
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VOL. 287, MARCH 9, 1998 321
Criminal Cases
§ 6. Presumption of Innocence
Article 14(2) of the International Covenant on Civil and Political Rights provides
that “Everyone charged with criminal offense shall have the right to be presumed
innocent until proved guilty according to law.” Likewise, Art. III, Sec. 14(2) of the
Philippine Constitution states that “in all criminal prosecutions, the accused shall
be presumed innocent until the contrary is proved.” Rule 115, Sec. 11(a) states that
“the accused is to be presumed innocent until the contrary is proved.”
Presumption of innocence must be overcome by the prosecution by proof beyond
reasonable doubt (People vs. Dulatre, 248 SCRA 107 [1995]).
Presumption of innocence is the principle that a person is innocent of a crime or
wrong until the contrary is proved. This presumption is applicable in criminal as well
as civil cases. The presumption of innocence also includes that of morality and
decency as a consequence of chastity (Valdepeña vs. People of the Philippines, 123
Phil. 742).
It is better to liberate a guilty man than to unjustly keep in prison one whose guilt
has not been proved by the required quantum of evidence (People vs. Esmaquilan, 255
SCRA 289 [1996]).
Every circumstances favoring the innocence of the accused must be taken into
account. The proof against him must survive the test of reason. The strongest
suspicion must not be permitted, to sway judgment (People of the Philippines vs.
Austria, 195 SCRA 700 [1983]).
Criminal offenses elevated by convicted public officials from the Sandiganbayan
deserve the same thorough treatment by the Supreme Court as criminal cases
involving ordinary citizens, simply because the constitutional presumption of
innocence must be overcome by proof beyond reasonable doubt (Filoteo, Jr. vs.
Sandiganbayan, 263 SCRA 222 [1996]). A conviction in a criminal case must rest on
nothing less than a moral certainty of guilt. The prosecution cannot use the
322
Criminal Cases
weakness of the defense to enhance its case (People vs. Raquel, 265 SCRA 248 [1996]).
§ 7. The Decision of the Trial Court Was Not Based On The Evidence
Presented in Court
With no evidence presented by the prosecution except the testimonies of the
complainant and her parents affirming the Affidavit of Desistance, the decision of the
trial court finding the guilt of the accused of the crime of rape fell short of the
constitutional provision that the judgment by any court must clearly and distinctly
set forth the facts and the law on which it is based (Art. VIII, Sec. 14, Phil.
Constitution).
In Hernandez vs. Colayco, 64 SCRA 480 [1975], the Supreme Court ruled:
“Without the concrete relation or statement in the judgment of the facts alleged and proved
at the trial, it is not possible to pass upon and determine the issue raised in litigation,
inasmuch as when the facts held to be proved are not set forth in a judicial controversy, it is
impossible to administer justice, to apply the law to the points argued, or to uphold
the rights of the litigant who has the law on his side.
It is not sufficient that the court or trial judge take into account the facts brought out
in an action suit, the circumstances of each question raised, and the nature and
conditions of the proofs furnished by the parties. He must also set out in his decision
the fact alleged by contending parties which he finds to have been proven. The
conclusions deduced therefrom and the opinion he has formed on the issues raised;
then only can he intelligently set forth the legal grounds and considerations proper
in his opinion for the due determination of the case.” (Montelibano vs. Director of
Lands, 21 Phil. 449; Enriquez vs. Enriquez, 3 Phil. 746; Braga vs. Millora, 3 Phil.
458).
§ 8. No “Short Cuts” to Due Process
Speed should not only be the concern of judges in administering justice. More
essential is due process and fairness.
323
VOL. 287, MARCH 9, 1998 323
Criminal Cases
In People vs. Banayo, 129 SCRA 725 (1984), the Supreme Court said that:
“At the onset, this Court takes a rather dim view of the apparently indifferent attitude
displayed by the trial court towards a murder case it has tried as shown by the rendition of
a decision, the body of which contains only 63 lines spread out over less than three
typewritten pages, double-spaced and wide-margined. While brevity should characterize a
court’s decision and length is not necessarily determinative of its quality, the lower court in
deciding this murder case nonetheless should have outlined in greater and more satisfactory
detail the evidence presented by both prosecution and the defense, the facts as found by the
trial judge based on the evidence on record and the jurisprudence and the authorities
supporting the court’s decision. This, the trial judge failed to do. There is not one single
citation of authority in the decision. The issues raised by the appellant include allegations of
concocted testimony, the nature of a dying declaration, premeditation, conspiracy, treachery
and superior strength. The issues raised are quite serious and they deserved better
treatment.”
In People vs. Dayot, 187 SCRA 637 (1990), the Supreme Court remanded the case to
the trial court holding:
“Yet another reason why we can not sustain the decision appealed from, and why the
presentation of evidence was compelling, is the fact that it, the decision, fails to express the
facts of the case. Under the Constitution:
Sec. 14. No decision shall be rendered by any court without expressing therein clearly and
distinctly the facts and the law on which it is based.
We therefore remand this case to the Court a quo for rearraignment and reception of
evidence. We find that the judgment under appeal has been tainted with a grave abuse of
discretion, or otherwise, has been vitiated by substantial legal errors committed by the court
below.”
The failure of the trial judge to write in the record a finding of facts upon which he
based his decision is always error. But this error does not always amount to
prejudicial error and in
324
Criminal Cases
most cases, the error may be cured by the remand of the record without necessity of
reversal of the judgment (U.S. vs. Dacaimat, 33 Phil. 447). The findings of facts must
be based on the evidence (U.S. vs. Jairead, 27 Phil. 305; People vs. Sabilud, 80 Phil.
285).
In his desire to achieve speedy administration of justice, the respondent judge,
although he is convinced that the accused are guilty of the crime of rape failed to
comply with the constitutional and statutory requirements that any decision should
be based on evidence introduced during the trial. There indeed was a failure of due
process of law which rendered the decision invalid.
——o0o——
325
VOL. 177, SEPTEMBER 8, 1989 419
Accused's Motion For Dismissal As Affecting The Double
Jeopardy Defense
ANNOTATION
ACCUSED’S MOTION FOR DISMISSAL AS AFFECTING THE DOUBLE
JEOPARDY DEFENSE
By
DAVID G. NITAFAN *
______________________
1. § 1.Foreword, p. 419
2. § 2.Situations when double jeopardy defense may be invoked; requirements,
p. 420
3. § 3.Cases holding that accused’s motion amounted to consent, p. 421
4. § 4.Cases holding that accused’s motion did not amount to consent, p. 423
5. § 5.Analysis, p. 424
6. § 6.Dismissals with express consent of accused; conditional dismissals, p. 425
7. § 7.Observations, p. 426
_______________________
§ 1. Foreword
The recent joint decision of the Third Division of the Supreme Court in G. R. Nos.
81861 and 83114, provides us an auspicious
1
_______________
* Judge, Regional Trial Court, National Capital Judicial Region, Manila.

1 Que, et al. v. Cosico, etc., et al. and People v. Martelino, et al., 8 September 1989—Gutierrez,
Jr., J., ponente, with Fernan, C.J.,and Bidin and Cortes, JJ.,concurring.
420
Jeopardy Defense
occasion and opportunity to review one important, yet controversial, aspect of the
constitutional protection against double jeopardy.
The basis of dismissal decreed by the trial court of the criminal case therein
involved is quoted in the decision as follows:
“After the court has ordered the prosecution thru City Fiscal Sergio Pestaño as well as
Private Prosecutor Roberto Barrios to proceed with the presentation of their evidence for
three (3) times, still the prosecution refused to present evidence. This case was postponed
many times at the intances of the prosecution and today’s trial is set for two days.
“On oral motion of Atty. Alberto Villaruz and Lorenzon Coloso, counsel for the defense
invoking their constitutional rights to speedy trial under the Constitution and the Rules of
Court, this court has no alternative but to dismiss this case.”
Yet the High Court held:
“We rule that Criminal Case No. C-5152 may be reinstated as no double jeopardy has
attached.
“x x x xxx xxx
“The fourth requisite is lacking in the instant case. The case was dismissed upon motion
and with the express consent of the accused. x x x”
As to when an accused is deemed to have given consent to a dismissal so as to
prevent double jeopardy from attaching is a question which became more debatable
with this latest pronouncement of the Supreme Court.
It is, therefore, the purpose of this piece to attempt to clarify and review this aspect
of the double jeopardy clause.
§ 2. Situations when double jeopardy defense may be invoked; requirements
Under the substantive and procedural provisions guaranteeing the protection against
double jeopardy, said protection may be invoked by the accused in any of the
following situations: (1) previous acquittal (autrefois aquit); or (2) previous conviction
421
VOL. 177, SEPTEMBER 8, 1989 421
Jeopardy Defense
(autrefois convict) of the same offense; or (3) when the case against him has been
dismissed or otherwise terminated without his express consent. It is under the third
situation where consent of the accused to a dismissal becomes relevant.
Legal jeopardy constituting a bar to subsequent prosecution, however, does not
exist and a plea to that effect is not accordingly sustainable unless the following
conditions are present: That there was in the first case (a) a valid complaint or
information; (b) filed before a court of competent jurisdiction; (c) that
the accused had been arraigned and had entered a plea; and (d) the accused was
either convicted, acquitted or the case against him is dismissed without his express
consent. 2
It goes without saying that the second accusation must be (1) for the same offense
charged in the first case; (2) or for an attempt to commit the same; (3) or a frustration
thereof; (4) or for any offense which necessarily includes or is necessarily included in
the offense charged in the former indictment, unless it falls under any of the three
qualifications now provided in the present rule. 3
Under the second sentence of the constitutional double jeopardy clause, though,
when a single act results into two or more offenses, one punishable by a law and the
other or others by an ordinance, conviction or acquittal under either shall also
constitute a bar to another prosecution for the same act under the other. This is an
exception to the same offense test provided for in the traditional formulation, which
is an innovation in our Constitution over the American original.
§ 3. Cases holding that accused’s motion amounted to consent
After the prosecution witness concluded his testimony, the
_______________
2 People v. Ylagan, 58 Phil. 851; Esmeña v. Pogoy, 102 SCRA 861; Buscayno v. Military Commission, 109
SCRA 273; People v. Bocar, 138 SCRA 166; People v. Quizada, 160 SCRA 516; see also U.S. v. Yam Tung
Way, 21 Phil. 67; People v. Fernandez, 94 Phil. 49, 49 O.G. 5342; People v. Ferrer, 100 Phil. 124, 55 O.G.
620; People v. Vda. de Golez, 108 Phil. 856.
3 Sec. 7, Rule 117, 1985 Rules on Criminal Procedure.
422
Jeopardy Defense
accused moved to dismiss the case on the ground that the Fiscal failed to prove that
the offense was committed within the province where the case was filed. The trial
court dismissed the case on that ground: Held.The dismissal did not constitute
jeopardy because it was decreed upon motion of the accused, hence the case was
dismissed with the express consent of the defendant. 4
A criminal case was dismissed upon the express application of the defendant. It
was held that the dismissal was not a bar to another prosecution for the same offense
because accused’s motion in having the case dismissed constitutes a waiver of his
constitutional prerogative against double jeopardy. 5
In the cases under annotation, the private prosecutors filed administrative

charges against the presiding judge and during the trial of the case they moved for
his inhibition. The trial judge ruled out said motion for inhibition of order and
directed the private prosecutor to present evidence but he refused, urging that his
motion for inhibition should first be resolved. The trial judge thereupon ordered the
fiscal to present the prosecution evidence, but instead of assuming active part in
prosecuting the case, the fiscal manifested that he was authorizing the private
prosecutor to actively handle the prosecution. The prosecution was then ready with
its principal witness, who was then present in court ready to testify. The private
prosecutor, however, insisted that his motion for inhibition be resolved. Thereupon,
the defense counsel commented that they are invoking their clients’ right to speedy
trial. The trial judge again asked the prosecution to present its evidence but the
private prosecutor refused. As a result, the presiding judge issued the order
dismissing the case. On motion for reconsideration, another Judge (Judge Cosico)
reinstated the case. This order of reinstatement was challenged on the ground of
double jeo-
_______________
4 People v. Salico (1949), 84 Phil. 722—Feria, J.This was a divided decision. Chief Justice Paras, joined
by Justices Bengzon and Montemayor, dissented. The dissent is to the effect that even if the trial court
committed error in granting the motion to dismiss, such error could not have prevented double jeopardy
from attaching.
5 People v. Consulta (1976), 70 SCRA 277—Martin, J.
423
VOL. 177, SEPTEMBER 8, 1989 423
Jeopardy Defense
pardy, but the Supreme Court held, as heretofore stated, that the dismissal was with
the consent of the accused and therefore jeopardy did not attach.
§ 4. Cases holding that accused’s motion did not amount to consent
Failure of fiscal to present evidence because he is not ready, but the court cannot
grant postponement anymore without violating accused’s right to speedy trial, and
dismissed the case, such dismissal is not in reality a dismissal but an acquittal of the
defendant because of the prosecution’s failure to prove the guilt of the defendant. 6
Where the manner the prosecution was handled was deplorable (with several
changes of prosecuting officers who always asked for continuance because of alleged
previous engagements), resulting in the dismissal of the case, the dismissal was
sustained as the prosecution’s posture greatly prejudiced the constitutional right of
the accused to speedy trial. 7
After accused was arraigned, trial of the case was postponed twice for failure of
the prosecutor and his witnesses to appear. On the third date set for trial the
prosecution and witnesses were not also present, so the defense already moved for
dismissal for failure of the Government to prosecute, which was granted: Held.It is
true that since the defendant himself asked for said dismissal, at first blush, it may
not be considered as coming under the provisions of Rule 113, section 9 (now Rule
117, sec. 7) of the Rules of Court which provides that there is former jeopardy “when
a defendant shall have been convicted or acquitted, or the case against
him dismissed or otherwise terminated without the express consent of the defendant.”
But the case was set for hearing twice and the prosecution without asking for
postponement or giving any explanation, just failed to appear. So the dismissal of the
case, though at the instance of defendant may, according to what we said in the
Gandicela
_______________
6Gandicela v. Lutero (1951), 88 Phil. 299—Feria, J.

7People v. Laya (1988), 161 SCRA 327—Gutierrez, Jr., J.
424
Jeopardy Defense
case, be regarded as an acquittal. 8
§ 5. Analysis
It is thus evident from the decided cases that not all dismissals decreed upon motion
of the accused amount to express consent on his part to the dismissal as to prevent
double jeopardy from attaching. It was said lately that there are two occasions when
9
double jeopardy will attach even if the motion to dismiss the case is made by
the accused himself: the first is when the ground is insufficiency of the evidence of
the prosecution, and the second is when the proceedings had been unreasonably
9a
prolonged in violation of the right to a speedy trial. 10
In the progress of a criminal prosecution, there are several stages when

the accused may move for the dismissal of the case. First, before arraignment,
through a motion to quash; second, when despite repeated opportunity given to the
11
prosecution to present evidence, it refused or it becomes clear that it cannot prove the
case against the accused without prejudicing his right to speedy trial; and third, 12
after the prosecution concluded its evidence, the accused may move to dismiss for
insufficiency of evidence. 13
While as a rule a grant of a motion to quash does not necessarily bar another
prosecution because the ground relied upon can be corrected without prejudicing the
substantial rights of the accused (as he has not yet been arraigned), there are
grounds of a motion to quash which by their nature, dismissals based on
_______________
8 People v. Diaz (1954), 94 Phil. 714—Montemayor, J.

9 People v. Quizada, 160 SCRA 526.
9a This is called demurrer to evidence—Sec. 15, Rule 110, 1985 Rules on Criminal Procedure.
10 See cases cited in People v. Quizada, supra.
11 Sec. 1, Rule 117, 1985 Rules on Criminal Procedure.
12 See Gandicela v. Lutero, supra; People v. Diaz, supra ;People v. Laya, supra ;see also Conde v.
Rivera, 45 Phil. 650; Kalaw v. Provincial Fiscal, 64 Phil. 852.
13 See Note 9a.
425
VOL. 177, SEPTEMBER 8, 1989 425
Jeopardy Defense
them necessarily bar further prosecution. We refer to extinguishment of criminal
liability or penalty, presence of circumstances justifying the commission of the
wrongful act charged, and double jeopardy. 14
The barby the dismissal under these grounds may not strictly fall under bar by
double jeopardy, but more on the doctrine of res judicata, yet it is bar just the same
and has the same effect as bar by second jeopardy.
§ 6. Dismissals with express consent of accused; conditional dismissals
As a rule conditional dismissals of cases, with the express consent of the accused,
prevents double jeopardy from attaching. Thus, provisional dismissal of an
information against an accused by excluding him therefrom, with the accused’s
consent, constitutes no double jeopardy. Where the accused signified his conformity
15
with the provisional dismissal of the case, there was neither acquittal nor dismissal
of the case that puts him twice in jeopardy of the same offense upon refiling of the
case. If the dismissal of a previous case made provisionally upon the express consent
16
of counsel for the accused, the prosecution of the second case, even if it covers the
same crime, does not give rise to double jeopardy. 17
It is a definite or unconditional dismissal which terminates the case and not a

dismissal without prejudice with the express conformity of the accused. 18
But regardless of whether the dismissal is made conditional or not, as long as

the accused consents thereto not in the exercise of his right to speedy trial, double
jeopardy is waived
_______________
14 Sec. 3(f), (g) and (h), Rule 117, 1985 Rules on Criminal Procedure.
15 Co Te Hue v. Encarnacion, 94 Phil. 258.
16 People v. Hinaut, 105 Phil. 303; Pendatun v. Aragon, 93 Phil. 796.
17 Baesa v. Provincial Fiscal, 37 SCRA 437.
18 Solis v. Agloro, 64 SCRA 370.
426
Jeopardy Defense
and does not attach. 19
§ 7. Observations
In the cases under annotation, when the trial judge ruled the private prosecutors
out of order when they insisted on a resolution on their motion for inhibition, such
action of the trial judge amounted to a denial of their motion. What they should have
done was to ask for postponement of the trial to give them time to elevate the matter
to a higher court instead of “refusing” to present evidence.
——o0o——
_______________
See Gandicela v. Lutero, supra.

19
427
VOL. 191, DECEMBER 3, 1990 841
A Restatement of the Rights of an Accused
ANNOTATION
A RESTATEMENT OF THE RIGHTS OF AN ACCUSED
By
ALICIA GONZALEZ-DECANO
_______________________
2. § II.The Meaning of Due Process, p. 842
3. § III.The Rights of the Acucsed Under Custodial Investigation, p. 845
4. § IV.Rights Before Trial, p. 850
5. § V.Rights of the Accused at the Trial, p. 853
6. § VI.Rights of the Accused After the Trial, p. 860
7. § VII.Conclusion and Recommendation, p. 863
________________________
§ I. Introduction
It is generally held that crimes must be penalized and wrongdoing must be repressed.
It should not be taken though that a person innocent but belonging to a minority
group or otherwise without influence should be mistakenly subjected to prosecution.
Even when a misdeed has been committed, the individual is not to be denied the
opportunity of submitting what defense he could legitimately avail of.
The rights assured of an accused therefore, are intended for his protection. He is
relieved of the apprehension that once indicted, conviction must automatically follow.
Justice Hermogenes Concepcion, Jr. in the cases of
1
_______________
1G.R. No. 61016 and G.R. No. 61107, April 26, 1983.
842
Morales vs. Enrile, et al and Moncupa vs. Enrile, et al of which he is the ponente,
said: “Our machinery of Justice should be geared towards helping and protecting the
poor among us. Not knowing their rights, not having the means to pay for the
services of a lawyer, possessing no influence whatsoever, they are invariably the
victims of injustice. The affluent can take care of themselves. They are better aware
of their rights, they have influence, and they can engage the services of the best
counsel. But the poor can only pray to God and hope to find relief in the system of
justice established by their government.” Furthermore, as enunciated in the case of
Bustamante vs. Maceren, “the rights of an accused provided in the Constitution
2
attest to a belief, underlying our governmental system that public interest is thereby
promoted. It is of course desirable that crimes should not go unpunished, but
everyone fortunate enough to be proceeded against must be shown to be guilty
thereof. What is more, the state should not subject him to greater and other
punishment than the law allows. For Justice Laurel, “the constellation of
constitutional rights which an accused is vouch-safed is ‘sacred’ and not a mere
‘excresence’. There should be a strict regard for them.” That is the view of
Cushman who said: “There is no more accurate index of a nation’s regard for civil
3
liberty than is to be found in the laws and procedures which deals with
persons accused of crime.” Pursuant to the provisions of the Constitution, every
person accused of a crime is afforded all the rights in order that he may be given
the opportunity to rebut all the charges levelled against him.
Before an analysis of all these rights of the accused, a brief discussion of what
due process is, is imperative.
§ II. The Meaning of Due Process
Due process is all encompassing because generally speaking, all the rights afforded
an accused from the time that he is charged of an offense up to the time of either his
conviction or acquittal as the case may be, are all embraced in the definition
_______________
2 L-35101, November 24, 1972, 48 SCRA 155 cited by Enrique Fernando, Constitution of the Philippines,
1974 p. 668.
3 Ibid.
843
VOL. 191, DECEMBER 3, 1990 843
of due process. If he is admitted to bail, that is due process. If he is given the right to
choose his own lawyer, it is because of due process. This sacred right of
an accused finds sanction in the Constitution itself: “No person shall be held to
answer for a criminal offense without due process of law.” 4
Authorities are agreed that due process means that an accused be rightfully
heard first before he is condemned. Due process in criminal proceedings specifically
requires that the accused be informed as to why he is proceeded against and what
charge he has to meet, with his conviction being made to rest on evidence that is not
tainted with falsity after full opportunity for rebuttal and that the sentence imposed
be in accordance with a valid law. It is assumed of course that the court that rendered
the decision is one of the competent jurisdiction. Justice Dizon in the case of
5
Gutierrez vs. Santos stated that “due process requires a hearing before an impartial
6
judge . . .” In an earlier decision, Justice Laurel made clear the necessity for a ‘trial
7
before an impartial judge’. If it were otherwise, the pledge of due process becomes a
myth. The trial is reduced to nothing but a useless formality, an idle ceremony. If a
judge had made up his mind to convict, even innocence would not suffice as a defense.
Due process simply means that the accused must be tried before a competent
court; must be given a fair and impartial trial; must be allowed to use all legal means
and opportunity to defend himself; and that a judgment meted against him be within
the authority of a valid law.
The essence of due process is a hearing before conviction and before an impartial
and disinterested tribunal, but due process as a constitutional precept does not
always and in all situations
_______________
4 Art. III, Sec. 14(1) The 1987 Constitution of the Republic of the Philippines, Supreme Court of the
Philippines, Manila, February, 1987, p. 7.

5 Vera vs. People, L-31218, February 18, 1970, 31 SCRA 711 as cited by Fernando, p. 670; Nuñez vs.
Sandiganbayan, G.R. No. 50581, Jan. 30, 1982 cited by Joaquin Bernas, The Revised 1973 Constitution,
1983 p. 734.
6 L-15824 May 30, 1961, 2 SCRA 249, Ibid.
7 People vs. Castañeda, 63 Phil. 486, Ibid.
844
require a trial-type proceeding. The essence of due process is to be found in the
reasonable opportunity to be heard and submit evidence in support of one’s defense.
“To be heard does not only mean verbal arguments in Court, one may be heard also
through pleadings. Where opportunity to be heard, either through oral arguments or
pleadings is accorded, there is no denial of procedural due process.” 8
A formal or trial type hearing is not at all times and in all instances essential to
due process, the requirements of which are satisfied where parties are afforded fair
and reasonable opportunity to explain their side of the controversy at hand. 9
Due process may be classified into procedural and substantive. Procedural due 10
process refers to the mode of procedure which government agencies must follow. It
guarantees procedural fairness. It means that a party to a case must be given
sufficient opportunity to be heard. Its very essence is to allow all parties opportunity
to present evidence. Procedural due process contemplates notice and opportunity to
11
be heard before judgment is rendered. The appellate Court should notify the parties
that the case would be submitted for decision without any memoranda, so that the
parties would have a chance before the case is decided to submit a brief or
memorandum to point out the errors of fact or law committed by the Court. 12
If at all due process requires is proper procedure, then life, liberty, and property
can be destroyed provided proper forms are observed. Such an interpretation
evidently makes of the due process clause a totally inadequate protection for personal
and property rights. Hence, the clause must be understood to
_______________
8 Mutuc vs. Court of Appeals, G.R. No. L-48108, September 26, 1990, Second Division.
9 Llora Motors, Inc. vs. Drilon, G.R. 82895, Nov. 7, 1989, Martinez Summary of Supreme Court Rulings,
1989, p. 45.
10 People vs. Castillo, 42 OG, 1940, cited by Lugue and de Leon, Const. of the Phil. 1973 p. 95.
11 Robusta Agro Marine Products Inc. vs. Gorombalen, et al., G.R. 80500, July 5, 1989, Martinez
Summary of Supreme Court Rulings, 1989, p. 48.

12 Romero vs. Court of Appeals, G.R. 59606, Jan. 8, 1987, Martinez Summary of Supreme Court Rulings,
1987 p. 22.
845
VOL. 191, DECEMBER 3, 1990 845
guarantee not just forms of procedure but also the very substance of life, liberty and
property. The due process clause must guarantee against the exercise of arbitrary
power even when the power is exercised according to proper forms and procedure. 13
For example, the respondent Judge violated complainant’s constitutional right to

due process when he punished the petitioner for acts not declared by any law as a
penal offense and sentenced him to a penalty without justification. 14
§ III. Rights of the Accused Under Custodial Investigation

The first classification of these rights are those rights afforded an accused during
custodial investigation. Custodial investigation means the questioning by law
15
enforcement officers after a person has been taken into custody or otherwise deprived
of his freedom of action in any significant way. The constitution of the Philippines
gives us the legal sanction to these rights. Article III, Section 12 (Nos. 1-4) provides:
1. “(1)Any person under investigation for the commission of an offense shall have the
right to remain silent and to have competent and independent counsel preferably of
his own choice. If the person cannot afford the services of counsel, he must be
provided with one. These rights cannot be waived except in writing and in the
presence of counsel.
2. “(2)No torture, force, violence, threat, intimidation, or any other means which vitiate
the free will shall be used against him. Secret detention places,
solitary, incommunicado, or other similar forms of detention are prohibited.
3. “(3)Any confession or admission obtained in violation of this or the preceding section
shall be inadmissible in evidence against him.
_______________
13 Lugue & Castillo, loc. cit.

14 Oscar Palma Pagasion vs. Judge Oscar P. Azura, Adm. Matter No. RTS-89-425, April 27, 1990, Case Digests
of Supreme Court Decisions, April, 1990, Vol. 7. No. 1, pp. 99-100.
15 Miranda vs. Arizona, 384 U.S. 386, 1966, cited by Fernando op. cit. p. 707; also cited by Bernas, loc. cit.
846
1. “(4)The law shall provide for penal and civil sanctions for violations of this section as
well as compensation to and rehabilitation of victims of torture or similar practices,
and their families.”
Under these provisions, the rights of a person charged of an offense are enumerated
as follows: right against self-incrimination; the right to remain silent; right to have
competent and independent counsel; the right to be informed that if one cannot afford
the services of counsel, he must be provided with one; the right cannot be waived
except in writing and in the presence of counsel; the right against the use of force,
violence, threat, intimidation or any other means, which vitiates the free will, and
the right to be compensated and rehabilitated in case of torture or similar practices.
These rights could also be afforded an accused whose case is pending
reinvestigation before any investigating body and during the trial of the case filed
against him.
A. Right Against Self-Incrimination. This is a safeguard against the compulsory
disclosure of incriminating facts. The provision that no one is bound to criminate
himself is older than the Government of the United States. It was held in the case of
U.S. vs. Navarro (3 Phil. 143) that this right was established on the grounds of public
policy and humanity—of policy because if the party were required to testify, it would
place the witness under the strongest temptation to commit the crime of perjury, and
of humanity, because it would prevent the extorting of confessions by duress.
It is well-settled, however, that the use of the body or any part thereof or a thing
taken therefrom is not prohibited by the constitutional right against self-
incrimination. Thus, the taking of a portion of the substance from the body of
an accused was held not to be violative of this right. Also, an accused could be
16
compelled to discharge morphine from his mouth , or to place his foot on a piece of
17
paper to secure his footprint 18
_______________
16 US vs. Tan Teng, 23 Phil. 145, Ibid, p. 705; also cited by Bernas Op. Cit. pp. 850-852.
17 US vs. Ong Siu Hong, 36 Phil. 735, Ibid.
18 US vs. Salas, 25 Phil. 337, Ibid.
847
VOL. 191, DECEMBER 3, 1990 847
without infringing this guarantee. It was likewise held that to require a person to be
photographed or to remove his garments and his shoes would not be violative of this
constitutional provision. Villaflor vs. Summers, decided before the Commonwealth,
19 20
presented the interesting question of whether or not a woman accused of adultery

could be compelled to have her body examined by physicians to determine if she were
pregnant. The answer was in the affirmative, Justice Malcolm in the said case
decreed: “Once again we lay down the rule that the constitutional guaranty that no
person shall be compelled in any criminal case to be a witness against himself, is
limited to a prohibition against testimonial self-incrimination. The corollary to the
prosecution is that, on a proper showing and under an order of the trial court, an
ocular inspection of the body of the accused is permissible. The provision is that
torture or force shall be avoided. It is implicit in this constitutional guarantee that no
person may be compelled to produce a sample of his handwriting. In the case of
Beltran vs. Samson, the respondents desired to compel the petitioner to write by
21
hand what was then dictated to him. The petitioner invoking the constitutional
provision contained in Sec. 3, paragraph 3 of the Jones Law which reads “. . . nor shall
any person be compelled in any criminal case to be a witness against himself,” refused
to write and instituted prohibition proceedings against the respondents. The court
granted the petition and ordered the respondents to desist and abstain absolutely
from compelling the petitioner to take down dictation by hand for the purpose of
comparing his handwriting. The reason is that writing is not purely a mechanical act.
It requires the application of intelligence and attention and is equivalent to
testimonial compulsion. The right against self-incrimination applies in criminal cases
as well as in civil, administrative, and legislative proceedings where the fact asked
for is a criminal one. It protects one whether he is a party or a witness. For more 22
detailed discus-
_______________
19 People vs. Otadora, Ibid.

20 41 Phil. 62, Ibid; also cited by Bernas, Op. Cit. pp. 852-856.
21 53 Phil. 570, Ibid. 706; also cited by Bernas, op. cit, pp. 852-860.
22 Bermudez vs. Castillo, 64 Phil. 583; Mc Carthy vs. Arnsdtein, 266 U.S. 40, cited by De Leon and
Lugue, op. cit. p. 101.

848
sion of this right, see 189 SCRA 355.
B. The Right to Remain Silent. An innovation in the present fundamental law
gives explicit constitutional sanction to the right of silence. This is otherwise known
as the Miranda Doctrine enunciated by the U.S. Supreme Court in the case of
Miranda vs. Arizona, when it was ruled that it is a constitutional pre-requisite that
23
for such statements to be admissible, the suspect must, in the absence of a clear
intelligent waiver of his constitutional rights, be warned prior to questioning that he
has a right to remain silent, that any statement he does make may be used as
evidence against him, and that he has a right to the presence of an attorney, whether
retained or appointed. The defendant may waive the right to remain silent provided
the waiver is made without force, fear or compulsion. If the individual is alone, and
indicates in any manner that he does not wish to be questioned, the police may stop
asking him questions. The mere fact that he has already begun answering some
questions does not deprive him of the right to stop answering further questions until
he has consulted a lawyer of his own choice and thereafter consents to be
interrogated. The accused has the right to remain silent and his silence cannot be
24
used as a presumption of guilt. 25
C. Another important right of the accused is the right to counsel. The right to
counsel is one of the basic rights of the person under investigation for the
commission of an offense. The suspect under detention should be informed that
26
before he answers the interrogation, he should be made to understand fully that he

has the right to get a counsel of his own choice, or if he could not afford to hire one,
the investigator should take the pains of furnishing him a lawyer either from the
rank and file of private practitioners or from the Pulblic Assistance Of-
_______________
23 Supra, Ibid 707; People vs. Duero, G.R. L-52016, May 13, 1981, 104 SCRA 739; 1981 Supreme Court
Decisions Index and Digest-U.P. Law Center, p. 188; also cited by Bernas op. cit. pp. 909-913.
24 Fernando, op. cit. pp. 708-709.
25 United States vs. Luzon, 4 Phil. 343, Ibid p. 711.
26 People of the Philippines vs. Generoso Labuac, G.R. No. 80764, Sept. 28, 1990, Case Digests of
Supreme Court Decisions, Sept. 1990, Vol. 8, No. 3, pp. 555-556.

849
VOL. 191, DECEMBER 3, 1990 849
fice. The defendant may waive effectuation of these rights provided that the waiver
is made voluntarily and intelligently. If, however, he indicates in any manner and at
any stage of the process that he wishes to consult with an attorney before speaking,
there can be no questioning. Likewise, if the individual is alone and manifests in any
manner that he does not wish to be interrogated, the police may not question him.
The mere fact that he may have answered some questions or volunteered some
statements on his own does not deprive him of the right to refrain from answering
any further inquiries until he has consulted with an attorney and thereafter consents
to be questioned. The accused may waive the presence of counsel but said waiver
27
should be in writing and again assisted by counsel. 28
D. A person under custodial investigation is protected against the use of force,

violence, threat, intimidation or any other means which vitiates the free will.
Involuntary confessions are rejected by all courts—by some on the ground that a
confession so obtained is unreliable, and by some on the grounds of humanitarian
principles which abhor all forms of torture or unfairness toward the accused in
criminal proceedings. If the accused satisfactorily shows that the confession was
made involuntarily, the confession stands discredited in the eyes of the law and is a
thing which never existed. Justice Labrador in the case of People vs. Obenia, 91 Phil.
29
292, said: “We cannot close our ears to the stories of maltreatment used to extort the
30
confession in question. Courts are not unaware that some officers of the law resort to
illegal and reprehensible tactics to extort confessions, and had occasions to express
condemnation
_______________
27 Ibid. p. 709; People vs. Hipolito, G.R. No. L-31402, August 17, 1981; 1981 Supreme Court Decision,
Index and Digest-U.P. Law Center, p. 364; also cited by Raul S. Roco, The President’s Page Journal of the
Integrated Bar of the Philippines, Vol. XI No. 4 Fourth Quarter 1983, p. 186.
28 People vs. Nicandro, G.R. No. L-59378, February 11, 1986, 141 SCRA 289.
29 Fernando, op. cit. p. 702; also cited by Bernas op. cit. pp. 848-850.
30 Ibid. p. 703-705.
850
of such tactics. Once again, then, this Court is called upon to manifest in the strongest
language possible its abhorrence to the employment of force to compel a person to
sign a statement acknowledging guilt. A decent regard for the dignity that attaches
to every human being as such will be satisfied with nonetheless.” Aside from the
protection against torture or violence a person under custodial investigation should
not be detained in secret places nor be held incommunicado. This is supported by the
provisions of the 1987 Constitution. Art. III, Section 12 (2) runs:
“No torture, force, violence, threat, intimidation, or any other means which vitiate the free
will shall be used against him. Secret detention places, solitary, incommunicado, or other
similar forms of detention are prohibited.”
Corollary to these provisions is the provision of Section 14 No. 18 which is quoted as
follows:
“No person shall be detained solely by reason of his political belief and aspirations.”
For violations of this Section 12 (1-4), the law shall provide for penal and civil
sanctions as well as compensation to and rehabilitation of victims of torture or similar
practices, and their families.
§ IV. Rights Before Trial
The second classification of these rights is the RIGHTS of the ACCUSED BEFORE
TRIAL. After a complaint or information is filed in court, the accued is entitled as a
matter of right, generally speaking, to bail. Next to life a man loves his freedom. Some
men love their freedom, even more than their life. 31
A. The Right to Bail. Article III, Section 13 of the 1987 Constitution reads:
_______________
Morales vs. Enrile, et al., supra.

31
851
VOL. 191, DECEMBER 3, 1990 851
“All persons, except those charged with offenses punishable by reclusion perpetua when
evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be
released on recognizance as may be provided by law. The right to bail shall not be impaired
even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be
required.”
With the presumption of innocence in favor of every accused, one detained may avail
himself of this right which means that he is entitled to his provisional liberty by
giving security for his appearance in court unless the charge against him is the
evidence of guilt is strong. A capital offense is “an offense which, under the law
existing at the time of its commission, and at the time of the application to be
admitted to bail, may be punished by death.” Under the Revised Penal Code, the
32
capital offenses are: treason, qualified piracy, murder, parricide, kidnapping and
serious illegal detention, robbery with homicide, and rape. In the leading case of
Teehankee vs. Rovira, the Supreme Court held that the right to bail could be invoked
by any person arrested, detained, or any otherwise deprived of his liberty even if no
complaint or information had been filed against him. The right to bail is thus
available to any person under detention. 33
The procedure for the right to bail, if available, is a hearing, summary or otherwise,
upon application for provisional release of such a detained person. The burden of
proof to show that the evidence of guilt is strong, is on the prosecution which cannot
rely on mere affidavit or recitals of their contents. Likewise, the person detained, has
the right to cross-examine the witnesses and the right to produce rebuttal evidence. 34
There are instances however, when bail could be availed of by the accused even
if he is prosecuted for a capital offense and the evidence of guilt is strong. Bail is
proper when the continued confinement of the detained person during the pendency
of the
_______________
32 Rule 114 Sec. 2, Rules of Court

33 Fernando, op. cit. p. 677; also cited by Bernas, op. cit. p. 796.
34 Montano vs. Ocampo, 49 O.G. 1855 cited by Supreme Court Annotations on Remedial Law series 2,
Central Law Book Publishing Co., 1931, p. 798; Ocampo vs. Bernabe, 77 Phil. 55 (1946) Fernando, op. cit.
also cited by Bernas op. cit. p. 798.
852
case would be injurious to his life. Bail is likewise available to an accused where it
35
was shown that of the fourteen counts in the information for treason, ten had to be
dismissed upon petition of the prosecution itself, that the trial was likely to be
protracted, with petitioner undergoing confinement without the assurance of a
speedy disposition of the case. 36
Admission to bail is a matter of right in the following instances: Before and after
judgment by an inferior court and before conviction by the Regional Trial Court
except in cases of capital offenses and the evidence of guilt is strong. 37
Admission to bail is a matter of judicial discretion in the following cases: After

conviction by the Regional Trial Court in all non-capital offenses; and before
conviction by the Regional Trial Court of a capital offense, where there is no
probability that the defendant would flee rather than face the verdict of the Court, or 38
after conviction, where the life or health of the convict is endangered by continued
confinement pending appeal.
Excessive bail is prohibited. The constitution ordains that excessive bail shall not
be required. That the amount is a reasonable bail rests mainly upon the discretion of
the judge. He has to take into account the nature of the offense, the penalty which
the law attaches to its, the probabilities of guilt and the financial condition of
the accused. That which is reasonable to a man of wealth is equivalent to a denial
of right if exacted to a poor man charged with a like offense. The guidelines in the
fixing of bail was summarized in the case of Villasenñor vs. Abaño by Justice
Sanches, as follows (1) ability of the accused to give bail; (2) nature of the offense;
39
(3) penalty for the offense charge; (4) character and reputation of the accused; (5)
health of the accused; (6) character and strength of the evidence; (7) proba-
_______________
35 Dela Rama vs. People’s Court, 77 Phil. 461 (1946) Ibid. 679.
36 People vs. Alano, 80 Phil. 19 (1948), Ibid; also cited by Bernas op. cit. 798.
37 Rules of Court Rule 114 Sec. 3, 1985 Rule on Criminal Procedure, p. 87.
38 Montano vs. Ocampo, L-6350, Jan. 29, 1953; Fernandez vs. Valera, L-18462, April 13, 1962, Ibid.
39 Cooley 639-641, Ibid.
853
VOL. 191, DECEMBER 3, 1990 853
bility of the accused appearing in trial; (8) forefeiture of other bonds; (9) whether
the accused is a fugitive from justice when arrested; and (10) if the accused is
under bond, for trial in other cases. “Discretion indeed, is with the court called upon
40
to rule on the question of bail. We must stress, however, that where conditions
imposed upon a defendant seeking bail would amount to a refusal thereof and render
nugatory the constitutional right to bail, we will not hesitate to exercise our
supervisory powers to provide the required remedy.” 41
After the accused is arrested and before he is tried, he has the right to counsel as
provided for by Rule 113, Section 14, of the 1985 Rules on Criminal Procedure which
runs:
“Any member of the bar shall, at the request of the person arrested or of another acting in
his behalf, have the right to visit and confer privately with such person, in the jail or any
other place of custody at any hour of the day or, in urgent cases, of the night. This right shall
also be exercised by any relative of the person arrested subject to reasonable regulation.
§ V. Rights of the Accused at the Trial
Having discussed the rights of the accused before the trial, focus should now be
directed to the Rights of the Accused at the Trial. The legal basis for the exercise of
these rights is found in Art. III Sec. 14 No. (2) of the Constitution which reads:
In all criminal prosecutions, the accused shall be presumed innocent until the contrary is
proved and shall enjoy the right to be heard by himself and counsel, to be informed of the
nature and cause of the accusation against him, to have a speedy, public and impartial trial,
to meet the witnesses face to face and to have compulsory process to secure the attendance
of witnesses and the production of evidence in
_______________
40 Villaseñor vs. Abaño, 21 SCRA 312, as cited by Annotations on Civil Law e-B, Obligations and Contracts
Central Lawbook Publishing Co., Q.C. 1983 p. 231; Rule 114, Section 10, 1985 Rules on Criminal Procedure pp.
15-19.
41 De la Camara vs. Enage, L-32951, September 17, 1951, 41 SCRA 1, cited by Ibid; also cited by Bernas, op.
cit. p. 799.
854
his behalf. However, after arraignment, trial may proceed notwithstanding the absence of
the accused provided that he had been duly notified and his failure to appear is
unjustifiable.”
A. Presumption of Innocence
The first of these rights, therefore, is the presumption of innocence. Accusation is
not, according to the fundamental law synonymous with guilt. It is incumbent on the
prosecution to demonstrate that culpability lies. The guilt of the accused must be
shown beyond reasonable doubt and the burden of proof lies in the prosecution. 42
There is, however, no constitutional objection to the passage of a law providing in

criminal prosecution, that the presumption of innocence may be overcome by a
contrary presumption founded upon the experience of human conduct—that when
certain facts have been proved, they shall be prima facie evidence of the existence of
the main fact in question. 43
Under our Rules of Court, for instance, it is presumed “that a person found in
possession of a thing taken in the doing of a recent wrongful act (e.g. theft) is the
taker and the doer of the whole act. The ground for the presumption is that men who
44
come honestly into the possession of the property have no difficulty in explaining the
method of which they come into such. 45
B. Right to be Arraigned
The second right at the trial is the right to be informed of the nature and cause of
accusation against him. This right implies that the offense of which a person is
charged be made known to him. The complaint or information should be sufficiently
clear to a person of ordinary intelligence as to what the charge is so as
_______________
42 People vs. Dramayo, L-31325 Oct. 29, 1971, 42 SCRA 59, Fernando op. cit. p. 684.
43 Cooley 639-641 as cited by De Leon and Lugue, op. cit. p. 97.
44 Rules of Court, Rule 131, Sec. 5(j).
45 U.S. vs. Ungol, 137 Phil. 835; U.S. vs. Espia, 16 Phil. 506, cited by De Leon and Lugue, op. cit. p. 98.
855
VOL. 191, DECEMBER 3, 1990 855
to enable him to prepare his defense. In the case of People vs. Mencias, the Supreme 46
Court ruled that an accused should be given the necessary data as to why he is being
proceeded against. He should not be left in an enviable state of speculating why he is
made the object of a prosecution. The act of conduct imputed to him must be described
with sufficient particularity so that he would be in a position to defend himself
properly. If it were not so, the element of unfairness, is in fact denied him.
C. The Right to be Heard
There is a recognition in the constitution that an accused has the right to be
heard by himself and counsel. Discussion should be made first on the right to be
heard. As penned by Justice Ozaeta in the leading case of Abriol vs. Homeres, 84 Phil.
525, it is the constitutional right of the accused to be heard in his defense before
47
sentence is pronounced on him. This constitutional right is inviolable. A deprivation

thereof suffices to oust the court of jurisdiction, whatever judgment rendered therein
being thus devoid of validity and could be inquired into a petition for habeas corpus.
Justice Ozaeta further said: “No court of justice under our system of government has
the right to deprive him of that right. If the accused does not waive his right to be
heard but on the contrary, as in the instant case, invokes that right and the court
denies it to him, that court could no longer have jurisdiction to proceed; it has no
power to sentence the accused without hearing him in his defense; and the sentence
thus pronounced is void.
The right of the accused to present evidence on his behalf may be waived
expressly, in which event the court has no alternative but to decide the case upon
evidence presented by the prosecution alone. His failure to appear with counsel of
48
his choice at the hearing of the case, notwithstanding repeated postponements and
warnings that failure to so appear would be deemed a waiver on the part of the
appellant to present his evidence and
_______________
46 L-23572, July 19, 1972, 46 SCRA 88, Fernando op. cit. 685.
47 Ibid., p. 691.
48 Ibid., p. 693.
856
the case would be deemed submitted for decision upon the evidence presented by the
prosecution, was a sufficient legal justification for the trial to proceed and render
judgment upon the evidence on hand. 49
D. The Right Against self-incrimination is also afforded an accused during trial.
This is fully discussed in Volume 189 SCRA 355.
E. The Right to Counsel. The constitution assures the accused his right to be
heard by himself and counsel. It means that a person indicted is entitled to be
defended by a lawyer. The Rules of Court, pursuant to this constitutional provision,
imposes a duty upon the judiciary to advise the accused of his right to counsel before
arraignment. Thus, if the defendant appears without attorney, he must be informed
by the court of such right before being arraigned and must be asked if he desires the
aid of counsel. If he desires and is unable to employ one, the court must assign an
attorney de oficio to defend him. If he desires to produce his own attorney, the court
will grant him a reasonable time therefore. 50
The right to counsel may be invoked even in a court martial and the latter has no
power to refuse an attorney the right to appear before it if he is properly licensed to
practice law in the court of the State. 51
Failure to observe the right to counsel is a reversible error. 52
The purpose of the constitutional guaranty of a right to counsel is to protect

an accused from conviction resulting from his own ignorance of his legal and
constitutional rights and the guaranty would nullified by a determination that
an accused’s ignorant failure to claim his rights removes the protection of the
constitution. 53
_______________
49 People vs. Angco, 103 Phil. 33, Ibid; Pp. vs. Dichoso, G.R. No. L-51674, March 31, 1980 (1980 Supreme
Court Decisions, p. 172.)
50 Rule 116 Sec. 6, 1985 Rules on Criminal Procedure, Supreme Court, Philippines, p. 25.
51 Marcos vs. Chief of Staff, 89 Phil. 246; Ibid: cited also by Bernas, op. cit. pp. 814-816.
52 U.S. vs. Palisoc, 4 Phil. 407; People vs. Holgado, supra.
53 Abriol vs. Homeres, 84 Phil. 525, cited by Fernando, op. cit. p. 697.
857
VOL. 191, DECEMBER 3, 1990 857
The right to counsel may be waived but it does not mean that the Supreme Court,
without the slightest indication in the records, can vitiate these vital rights of
the accused by erecting an edfice of presumptions upon the sands of an empty
record. It should therefore be placed on record that the accused was informed by
54
the court of his right to counsel and that he waived his right to counsel at all. A waiver
is ordinarily an intentional relinquishment or abandonment of a known right or
privilege. The determination of whether there has been an intelligent waiver of the
right to counsel must depend, in each case, upon the particular facts and
circumstances surrounding that case, including the background, experience, and
conduct of the accused. The waiver must be in the presence of a counsel.
55 56
G. Right to Speedy Trial.—The right to a speedy trial as defined in the case of

Acebedo vs. Sarmiento, is one free from vexations, capricious and oppressive delays,
its salutary objective being to assure that an innocent person may be free from the
anxiety and expense of a court litigation or, if otherwise, of having his guilt
determined within the shortest possible time compatible with the presentation and
consideration of whatever legitimate defense he may interpose. 57
Justice Laurel ruled: “The government should be the last to set an example of delay
and oppression in the administration of justice and it is the moral and legal obligation
of this court to see that the criminal proceedings against the accused come to an end
that they be immediately discharged from the custody of the law.” In the case of 58
Conde vs. Rivera, Justice Laurel again held: “The right of an accused to have
59
speedy trial is violated not only when unjustified postponements of the trial are asked
for and secured, but also when without cause or justifiable motive, a long period of
time is allowed to elapse
_______________
54 Ibid., p. 696.
55 Ibid., p. 697.
56 People vs. Nicandro, supra; Also People vs. Alberto Arsenio, et al., G.R. No. 57025, April 6, 1990, Case
Digest of Supreme Court Decisions, April, 1990, Vol. 7 No. I pp. 50-53.
57 L-28025, December 16, 1970, 36 SCRA 247 Ibid. p. 686.
58 People vs. Castaneda, 63 Phil. 480, Ibid., p. 687.
59 45 Phil. 650, Ibid.
858
without having his case tried.”
In the case of Mercado vs. Santos, Justice Laurel ruled: “an accused person is
60
entitled to a trial at the earliest opportunity x x x x He cannot be oppresed by delaying

the commencement of trial for an unreasonable length of time. If the proceedings
pending trial are deferred, the trial itself is necessarily delayed, it is not to be
supposed, of course that the constitution intends to remove from the prosecution
every reasonable opportunity to prepare for trial. Impossibilities cannot be expected
or extraordinary efforts required on the part of the prosecution of the court. Speedy 61
trial, is necessarily relative and consistent with reasonable delays, the court having
been envisioned to prohibit only unreasonable delays, the circumstances of each case
not susceptible to be qualified into a specified number of days or months and which
as obtaining in this case, do not warrant a pronouncement that the State has forfeited
its rights to prosecute the petitioners by having deprived the latter of their right to
speedy trial. 62
This right to speedy trial is supported by the 1987 Constitution, Article III, Sec.
16 which reads:
“All persons shall have the right to a speedy disposition of their cases before all judicial,
quasi-judicial or administrative bodies.”
H. Right to Public Trial. The trial must be public. It possesses that character when
anyone interested in observing the manner a judge conducts the proceedings in his
courtroom may do so. There is to be no ban on such attendance. His being a stranger
to the litigants is of no moment. No relationship to the parties need be shown. The
thought that lies behind this safeguard is the belief that the accused is afforded
further protection and that his trial is likely to be conducted with regularity and not
tainted with any impropriety. 63
_______________
60 66 Phil. 215, Ibid., p. 689.

61 Ibid., Bernas, op. cit. p. 733.
62 Nepomuceno vs. Sec. of National Defense, G.R. No. L-45487, October 30, 1981, Supreme Court
Annotation, op. cit. p. 476.

63 Ibid., p. 690; Pp. vs. Tampus, G.R. No. L-44690, March 28, 1980 (1980 Supreme Court Decisions, op.
cit. p. 143).
859
VOL. 191, DECEMBER 3, 1990 859
There is the well-recognized exception though that warrants the exclusion of the
public where the evidence may be characterized as offensive to decency or public
morals. 64
I. Right to Confrontation of Witnesses. This provision includes the right of

the accused to meet the witnesses face to face. Thus, he may insist on a
confrontation with the person or persons who are called to testify to his alleged
commission of an offense. There are two important reasons behind this right. The 65
first is to give the accused an opportunity to cross-examine witnesses against him

to test their recollection and veracity. He may not therefore be convicted upon the
dispositions or ex-parte affidavits of his accusers, and the second is to give the court
an opportunity to see the demeanor and appearance of witnesses while they are
testifying. The constitutional right of confrontation, which guarantees 66
the accused the right of cross-examination of witnesses for the prosecution is one of
the basic rights of an accused person under our system of justice. The right of
confrontation does not necessarily mean a physical face to face of the adversaries in
Court. It merely means the right to be given an opportunity to cross-examine and this
right of course can be done through the parties’ counsel. 67
J. Right to compulsory attendance of witnesses and production of documents.—The

constitution likewise affords an accused person the right to have compulsory process
to secure the attendance of witnesses on his behalf. There is thus an assurance that
those who are in a position to disprove the evidence against him can be cited to testify.
For this purpose, he could ask that subpoena be issued so that such persons are
available at the trial. Rule 119 Section 4 of the Rules of Court gives
_______________
64 Garcia vs. Domingo, L-30104, July 25, 1973, 52 SCRA 143 as cited by Fernando, op. cit. p. 686.
65 De Leon and Lugue op cit p. 100 citing U.S. vs. Javier, 37 Phil. 449; U.S. vs. Bello, 11 Phil. 528.
66 People vs. Seneris, G.R. No. L-48883, August 6, 1980; 1980 Supreme Court Decisions op. cit. 339 also
cited by Bernas, op. cit. p. 837-844.

67 Marcos vs. Garchitorena, G.R. 90110-43, February 20, 1990, En Banc, Minute Resolution, Martinez
Summary of Supreme Court Rulings, p. 44.

860
support to this constitutional provision, thus “When the accused has been held to
answer for an offense, he may, upon motion with notice to all other parties have
witnesses conditionally examined in his behalf in the manner hereinafter provided,
but not otherwise. The motion shall state: (a) the name and residence of the witness;
(b) the substance of his testimony and (c) that the witness is so sick or infirm as to
afford reasonable grounds for believing that he will not be able to attend the same, or
that apart from the foregoing, other similar circumstances exist that would make him
unavailable or prevent him from attending the trial. The motion shall be supported
by affidavit of the accused and such other evidence as the court may require.”
§ VI. Rights of the Accused After the Trial
After the trial the accused is entitled to a right against the imposition of excessive
and cruel or unusual punishment. This is substantiated by Art. III, Sec. 19 No. (1) of
the Constitution, which explicity commands:
“Excessive fines shall not be imposed, nor cruel, degrading of inhuman punishment inflicted.
Neither shall death penalty be imposed, unless, for compelling reasons involving heinous
crimes, the Congress hereafter provides for it. Any death penalty already imposed shall be
reduced to reclusion perpetua.”
The question of what fines shall be imposed is one addressed to the sound discretion
of the court. If it keeps within the limits of a statute, the fine cannot unusually be
held unreasonable. Courts will be justified in declaring a fine prescribed by a statute
68
excessive only when it is clearly so, considering the nature of the offense and the
ability of the person punished to pay the fine.
What constitutes a cruel or unusual punishment has not been exactly decided. It
has been said, however, that punishments are cruel when they involve torture or
lingering death. The
_______________
U.S. vs. Valera, 26 Phil. 898; U.S. vs. Sing, 37 Phil. 211, cited by Lugue and De Leon, op. cit. p. 103.
68
861
VOL. 191, DECEMBER 3, 1990 861
punishment of death, destierro or banishment from a certain locality as a punishment
may be unusual but, it is not cruel. But all punishments greatly disproportionate to
69
the offense would be cruel and unusual. Thus, the penalty of life imprisonment or
even death is not cruel and unusual when imposed for treason, parricide, murder,
and other heinous crimes especially when aggravating circumstances attended their
commission; but it is cruel and unusual if it is imposed for petty crimes.
The purpose of the guaranty is to eliminate many of the barbarous and uncivilized
punishments formerly known such as the infliction of which would barbarize present
civilization. 70
There are certain basic principles for judging severe punishment according to
Justices Brennan and Marshall. These principles are: (1) Punishment which
71
involves so much pain and suffering that civilized people can not tolerate e.g. the
rock, the thumbscrew, or other means of torture; (2) there are unusual punishments
in the sense of being previously unknown for a given offense; (3) a penalty may be
unusual and cruel because it is excessive and serves no legislative purpose and (4) a
punishment that is not excessive and possessing a legislative purpose may
nevertheless be invalid if popular sentiment abhors it.
The protection against double jeopardy. Once convicted of an offense, the
same accused could not be charged of the same offense committed on the same day
for which he has already been convicted. The constitution ordains: “No person shall
be twice put in jeopardy of punishment for the same offense. If an act is punished by
a law and an ordinance, conviction or acquittal under either shall constitute a bar to
another prosecution for the same act.” The right against double jeopardy means that
72
when a person is charged with an offense and the case is terminated either by
acquittal or conviction or in any other manner without the consent of the accused,
the latter cannot again be charged with the same or identical offense. The 73
_______________
69 Weens vs. United States, 217 U.S. 349, cited by Ibid., p. 103.
70 McElvainne vs. Brush, 142 U.S. 155, cited by Ibid. p. 104; also Bernas, op. cit. p. 939-942.
71 Ibid., p. 943.
72 Art. III, Sec. 21 of the 1987 Constitution.
73 Melo vs. People of the Phil., 85 Phil. 766, cited by Lugue and De
862
guaranty protects against the peril of a second punishment as well as a second trial
for the same offense.
The accused is placed in jeopardy if the following conditions are present: (1) he
has been previously brought to trial; (2) in a court of competent jurisdiction; (3) He
has been arraigned and pleaded to the charge; (4) he has been convicted or acquitted
or the case against him has been dismissed or otherwise terminated without his
expressed consent; and (5) he is being charged again for the same offense. So that, 74
without his consent, a defendant who has been once brought to trial in a court of
competent jurisdiction cannot be again put on trial for the same judgment directing
his discharge, whether his discharge be the result of a formal acquittal, or a ruling of
the court upon some question of law arising at the trial. 75
The government has no right, therefore, to appeal from a judgment of acquittal.

But if the accused after having been convicted appeals to a high court, the latter
may raise the penalty imposed on him by the lower court and such is not second
jeopardy. 76
After the trial, the accused is also entitled to appeal his case to higher courts for
final adjudication. The Supreme Court, however, ruled in many cases that an
77 78
appeal after a judgment of dismissal places the accused in second jeopardy.

When an accused appeals his conviction, the accused waives his right to the plea
of double jeopardy. The Supreme Court however, ruled that a penalty higher than
that of the original conviction could be imposed on him. 79
_______________
Leon op. cit. p. 104; discussed by Bernas, op. cit. p. 944-979.

74 People vs. Ylagan, 58 Phil. 851 (1933) cited by Bernas, op. cit. p. 944.
75 People vs. Laggiri, G.R. No. 76262-63, March 16, 1989, Martinez Summary, p. 38.
76 Trono vs. U.S., 11 Phil. 726, cited by Ibid.,
77 Rule 115 (i) 1985 Rules on Criminal Procedure, Supreme Court of the Phil. p. 23.
78 People vs. Montemayor, L-29599, Jan. 30, 1969; People vs. Pomeroy, 97 Phil. 927, People vs. Paet, 100
Phil. 357 (1956), People vs. Cabarles, 102 Phil. 926 (1958), all cited by Bernas, op. cit. pp. 977-978.
79 Ibid.
863
VOL. 191, DECEMBER 3, 1990 863
Appeal being an essential part of our judicial system, courts should proceed with
caution so as not to deprive a party of the right to appeal. Deprivation of one’s right
to appeal in violation of due process vitiates the final and executory order of the
appellate Court and is a valid ground for setting it aside. 80
§ VII. Conclusion and Recommendation

It is repeatedly said that the Filipino people cry out for a better life. They want more
food in their stomachs, roofs over their heads, health services for themselves and their
families, education for their children and other necessities which make life worth
living. Above all these material needs, the people clamor for justice, justice for
the accused who is not afforded some if not all the rights under the Constitution, or
if so afforded, these rights are clumsily availed of to his prejudice. With this simple
and brief presentation of the rights of the accused, it is hoped therefore that poor
victims of injustice be given what is due to them so that in the end, the faith and
confidence they once reposed in the government will soon be restored, and therefore,
we can carefully say that the provisions of the constitution are truly put into action.
Since our goal is to regain the trust and confidence from the people, we should lead
them to a truly better life. “We cannot lead them to such kind of life unless we achieve
complete peace in our country and we cannot have complete peace unless we improve
the better administration of justice.”
A better administration of justice could be well-achieved if we put into practice
effectively and well the provisions of the constitution particularly
the rights accorded an accused. While it is true, that lawlessness and disorder have
increased far and wide and that it is equally true that we have to bring to the folds of
justice, the perpetrators, it is still incumbent upon the administrators of justice to
afford the accused all the rights that he is entitled to, under the constitution. Along
this line, it is recommended that the ends of justice could only be served well,
_______________
80 Advincula v. Intermediate Appellate Court, G.R. No. 75310, Jan. 16, 1987, Martinez Summary 1987,
p. 23.
864
if those appointed to said positions are imbued with the highest sense of justice,
integrity, morality and competence. They should not be living in a house of glass or a
house with skeletons in the closet, so that they would be free and independent in the
interpretation of whatever law is applicable under the premises.
——o0o——
865
VOL. 238, NOVEMBER 24, 1994 319
Admissibility of Evidence From Custodial Investigation
ANNOTATION
ADMISSIBILITY OF EVIDENCE FROM CUSTODIAL INVESTIGATION
By
SEVERIANO S. TABIOS
________________
1. § 1.Introduction, p. 319
2. § 2.Constitutional Right of a Person Under Investigation, p. 321
3. § 3.The Miranda Doctrine in Custodial Investigation, p. 322
4. § 4.Evidence Arising from Custodial Investigations, p. 323
1. A.Evidence that Violates the Right of Accused to Remain Silent, p. 323

2. B.Evidence Arising from the Failure to Comply with the Right of
the Accused to Counsel, p. 325
3. C.Evidence Showing Compliance with the Right of Accused to Counsel, p. 328
_________________
§ 1. Introduction
The case of People vs. Macam, et al., G.R. No. 910-11-12, November 24, 1994, which
is the subject of this annotation, provides advocates with an incisive analysis of the
distinctions between the admissibility and non-admissibility of evidence gathered
from a custodial investigation. In that case, which involved a prosecution and
conviction of some accused persons for Robbery with Homicide, some of
the accused questioned the validity of their arrest without warrant and of their
uncounseled identification by the prosecution witnesses during a police line-up at the
hospital.
320
After reviewing the records, the Supreme Court noted that the accused had not
moved for the quashing of the information before the trial court based on the alleged
illegality of their arrest. In fact, the accused raised the issue of their arrest without
warrant only before the Supreme Court. For this reason, the Supreme Court citing
the case of People vs. Rabang, 187 SCRA 682 (1990), said that any irregularity
attendant to their arrest was cured when they voluntarily submitted themselves to
the jurisdiction of the trial court by entering a plea of not guilty and by participating
in the trial of case. In other words, they were estopped from questioning the legality
of their arrest.
With respect to the issue of the admissibility of their uncounseled identification by
the prosecution witnesses during the police line-up at the hospital, the Supreme
Court after declaring that the right to counsel attaches upon the start of an
investigation (Gamboa vs. Cruz, 162 SCRA 642 [1988]) explained that the counsel
guarantee was intended to assure the assistance of counsel at the trial, inasmuch as
the accused was “confronted with both the intricacies of the law and the advocacy of
the public prosecutor.” For this purpose, it is appropriate to extend the counsel
guarantee to critical stages of prosecution even before the trial and a police line-up is
considered a “critical” stage of the proceedings. (U.S. vs. Wade, 388 U.S. 218, 18 L.
Ed 2d 1149, 87 S. Ct. 1926 [1967]). Therefore, after the start of the custodial
investigation, any identification of an uncounseled accused made in a police line-up
is inadmissible.
However, where the prosecution, as in the case under annotation, did not present
evidence regarding the identification of the accused at the police line-up, the
exclusionary sanctions against the admission in evidence of custodial identification
of an uncounseled accused cannot be applied. Furthermore, even if the evidence of
the custodial identification of the uncounseled accused were not presented in
evidence, as when the prosecution witnesses, who made the identification
of accused at the police line-up at the hospital, identified them in open court,
the accused could still have objected to the in-court identification as being tainted
by the illegal line-up in order that the prosecution would be required to show that
said identification were of independent origin (Gilbert vs. California, 388 U.S. 263,
18 L. Ed 2d 1178, 87 S. Ct. 1951 [1967]). Thus, the failure of the accused to object to
their
321
VOL. 238, NOVEMBER 24, 1994 321
identification in open court by the prosecution witnesses relieved the prosecution
from showing that the identifications were of independent origin.
It is therefore the purpose of this annotation to explore further the issue of the
admissibility of evidence from custodial investigation in the light of the Miranda
doctrine and the provisions of the 1987 Constitution.
§ 2. Constitutional Right of a Person Under Investigation
According to Section 12 (1), Article III of the 1987 Constitution, “any person under
his rights to remain silent and to have competent and independent counsel
preferably of his own choice. If the person cannot afford the services of counsel, he
must be provided with one. These rights cannot be waived, except in writing and in
the presence of counsel.”
Essentially, the above provision of the 1987 Constitution requires the giving of
warnings, called Miranda warnings which was adopted from the ruling in the
American case of Miranda vs. Arizona, (384 U.S. 436 [1966]), reminding suspects
under custodial investigation of their right to remain silent and to have counsel
preferably of their own choice. It also contemplates the transmission of meaningful
information rather than just the ceremonial and perfunctory recitation of an abstract
constitutional principle. (People vs. Nicandro, 141 SCRA 289 [1986]).
As explained by the Supreme Court in People vs. Quizon, 142 SCRA 362, 368
[1986] citing the case of People vs. Nicandro, supra, it would not be sufficient for a
police officer just to repeat to the person under investigation the provisions of the
Constitution. He is not only duty bound to tell the person the rights to which the
latter is entitled; he must also explain their effects in practical terms, e.g., what the
person under interrogation may or may not do, and in a language the subject fairly
understands. (See People vs. Ramos, 122 SCRA 312; People vs. Caguioa, 96 SCRA 2).
In other words, the right of a person under interrogation “to be informed” implies a
correlative obligation on the part of the police investigator to explain, and this
contemplates an effective communication that results in understanding what is
conveyed. Now, since the right “to be informed” implies
322
comprehension, the degree of explanation required will necessarily vary, depending
upon the education, intelligence and other relevant personal circumstances of the
person under investigation. Suffice it to say that a simpler and more lucid explanation
is needed where the suspect is unlettered.
§ 3. The Miranda Doctrine in Custodial Investigation
The Miranda doctrine as enunciated in the American case of Miranda vs.
Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, 10 A. L. R. 974 (1966) was
intended “to protect persons in all settings in which their freedom of action is
curtailed in any significant way from being compelled to incriminate themselves.” In
this connection, the U.S. Supreme Court believed that the process of incustody
interrogation of persons suspected or accused of crime, without proper safeguards,
contains inherently compelling pressures which work to undermine the individual’s
will to resist and to compel him to speak where he would not otherwise do so freely.
Therefore, to combat these pressures and to permit a full opportunity to exercise the
privilege against self-incrimination, the accused must be adequately and effectively
appraised of his rights and the exercise of those rights must be fully honored.
As restated by Chief Justice Earl Warren of the U.S. Supreme Court in the
Miranda case, “if a person in custody is to be subjected to interrogation, he must first
be informed in clear and unequivocal terms that he has the right to remain silent.”
This warning is accompanied by the explanation that anything said can and will be
used against the individual in court. For those unaware of the privilege, the warning
is needed in order to make them aware not only of the privilege but also of the
consequence of foregoing it. This is the threshold requirement for an intelligent
decision as to the exercise of the privilege.
The second part of the privilege of an accused under the Miranda doctrine
(Miranda vs. Arizona, supra.) is the individual’s right to the presence of counsel and
the appointment of an attorney for him prior to any questioning, if he cannot afford
but he so desires to have one. Therefore, if an individual indicates that he wishes the
assistance of counsel before any interrogation occurs, the authorities cannot
rationally ignore or deny his
323
VOL. 238, NOVEMBER 24, 1994 323
request on the basis that the individual does not have or cannot afford a retained
attorney, because if he is indigent a lawyer will be appointed to represent him.
Once warnings have been given, the subsequent procedure is clear. If the
individual indicates in any manner, at any time prior to or during questioning, that
he wishes to remain silent, the interrogation must cease. If the individual cannot
obtain an attorney and he indicates that he wants one before speaking to police, they
must respect his decision to remain silent. Therefore, if the interrogation continues
without the presence of an attorney and a statement is taken, a heavy burden rests
on the government to demonstrate that the defendant knowingly and intelligently
waived his privilege against self-incrimination and his right to retain or appoint
counsel. (Miranda vs. Arizona, supra.)
§ 4. Evidence Arising from Custodial Investigations
A. Evidence that Violates the Right of Accused to Remain Silent
The right of the accused to remain silent in custodial investigation is recognized in
Section 12 (1), Article III, 1987 Constitution, which used to be Section 20, Article IV,
1973 Constitution, which presently provides that “any person under investigation for
the commission of an offense shall have the right to be informed of his rights to
remain silent x x x.” To comply with the constitutional requirement, those in charge
of the custodial investigation are required to inform the accused in a clear and
unequivocal terms that he has the right to remain silent and that anything he will
say can and will be used in court against him. (People vs. Tolentino, et al., 145 SCRA
597, 608 citing Miranda vs. Arizona, supra). This in essence is what is known and
recognized as the Miranda warning.
As adopted by the Supreme Court in People vs. Duero, 104 SCRA 379, the
prosecution under the Miranda doctrine must prove that before the accused made
his alleged oral confession he was informed of and he subsequently waived
his rights to remain silent and to have counsel. The consequence of the failure by the
prosecution to prove that accused knowingly and intelligently waived
those rights is the inadmissibility in evidence of the
324
accused person’s confession. In effect, the Supreme Court in the Duero case not only
abrogated the rule on presumption of the regularity of official acts related to
admissibility of statements taken during in-custody interrogation but likewise
dispelled doubt as to the full adoption of the Miranda doctrine in this jurisdiction.
Therefore, it is now incumbent upon the prosecution to prove during a trial that prior
to questioning the confessant was warned of his constitutionally protected rights.
(People vs. Tolentino, et al., 145 SCRA 597, 607 [1986]).
Clarifying further, the Supreme Court explained that, as laid down in Miranda vs.
Arizona, supra, the rule on admissibility of statements prohibits the use by the
prosecution of statements, whether exculpatory or inculpatory, stemming from
custodial interrogation of the defendant, unless it demonstrates the use of procedural
safeguards effective to secure the privilege against self-incrimination. The heavy
burden is on the prosecution because the State is responsible for establishing the
isolated circumstance under which the interrogation takes place and has the only
means of making available corroborated evidence of warnings given during
incommunicado interrogation. Precisely, the Miranda doctrine was formulated to
counteract the incommunicado police-oriented atmosphere during custodial
interrogation and the evils it can bring. (People vs. Tolentino, et al., 145 SCRA 597,
607 [1986] citing Miranda vs. Arizona, supra.)
Appropriately, where the interrogation in a sworn statement begins with the
standard sacramental recital of the rights of the accused, but without any effort to
explain them and ends with the mechanical question of whether the suspect
understands the notification, followed by the usual docile “opo” from the suspect, the
imperative requisites laid down by the Bill of Rights for the protection of persons
under custodial investigation is not satisfied. (People vs. Tunday, 157 SCRA 529, 532
[1988]). Thus, as observed by the Supreme Court in People vs. Escober, et al., 157
SCRA 541, 563 (1988), where the extra-judicial statements of two accused persons
under custodial investigation carried identical prefatory statements, the identical
manner by which the police sought to inform the two accused persons of their
constitutional rights shows a lack of zeal and initiative on the part of the
investigating officers to fully and truly inform the accused persons of their rights to
remain silent and to counsel during the custodial
325
VOL. 238, NOVEMBER 24, 1994 325
investigation. It is also a blatant disregard for individual comprehensive ability
arising from differences in intelligence level, educational background and personal
experiences.
B. Evidence Arising from the Failure to Comply with the Right of
the Accused to Counsel
Aside from being informed of his right to remain silent, the accused in custodial
investigation has also the right to be informed of his right to have competent and
independent counsel preferably of his own choice. This right is guaranteed by Section
12 (1), Article III, 1987 Constitution, which provides that “any person under
his rights to remain silent and to have competent and independent counsel
preferably of his own choice.”
This constitutional right of the accused as embodied in Section 12 (1), Article III,
1987 Constitution provides a very fundamental requirement for the conduct of
custodial investigation. As declared by the Supreme Court in Morales vs. Enrile, et
al., 121 SCRA 538, 554 (1983), “at the time a person is arrested, it shall be the duty
of the arresting officer to inform him of the reason for the arrest and he must be
shown the warrant of arrest, if any. He shall be informed of his
constitutional rights to remain silent and to counsel, and that any statement he
might make could be used against him. The person arrested shall have the right to
communicate with his lawyer, a relative, or anyone he chooses by the most expedient
means—by telephone, if possible—or by letter or messenger. It shall be the
responsibility of the arresting officer to see to it that this is accomplished.”
With respect to the right to counsel, the Supreme Court declared that “no custodial
investigation shall be conducted unless it be in the presence of counsel engaged by
the person arrested, by any person on his behalf, or appointed by the court upon
petition either of the detainee himself or by anyone on his behalf. In this regard, while
the right to counsel may be waived, however, the waiver shall not be valid unless
made with the assistance of counsel. Correspondingly, any statement obtained in
violation of the procedure laid down in custodial investigation, whether exculpatory
or inculpatory, in whole or in part, shall be inadmissible in evidence. (Morales vs.
Enrile, et al., 121 SCRA
326
538, 554 [1983]).
In view of the above requirements, the following extra-judicial statement of
an accused, which was prefaced by the following questions and answers was
declared in People vs. Escober, et al., 157 SCRA 541, 565, as inadmissible in evidence,
because the accused was not fully and truly informed of his right to counsel, to wit:
“PAGPAPAUNAWA NG KARAPATAN SA ILALIM NG

SALIGANG BATAS NG PILIPINAS.
Ikaw ngayon ay nasa ilalim ng pagtatanong sa himpilang ito ng polisya hinggil sa isang
usaping kinasasangkutan mo sa salang PAGNANAKAW NA MAY KASAMANG
PAGPATAY. Bago ka tanungin ng anoman, ipinauunawa ko muna sa iyo at
pinagpapaalalahanan ka ng iyong mga karapatan sa ilalim ng Saligang Batas ng Pilipinas,
tulad ng mga sumusunod:
1. Ikaw ay may karapatang manatiling tahimik at huwag
magsalita o magbigay ng salaysay kung hindi mo nais.
2. Ikaw ay may karapatang magkaroon ng paglilingkod ng
isang abogado na iyong mapipili. Kung hindi mo kayang
kumuha ng abogado, at nais mong magkaroon ng pagli-
lingkod nito, maglalaan ng isa para sa iyo ang hukuman na
hindi mo na kailangang bayaran ang paglilingkod nito.
3. Ikaw ay may karapatan na huwag magbigay ng anumang
pahayag na maaaring gamiting katibayan laban sa iyo.
4. Hindi ka maaaring pilitin, o gamitan ng anomang uri ng
karahasan o pamimilit para ikaw ay magbigay ng salaysay.
TANONG: Pagkatapos na malaman mo, maipaunawa sa iyo at mapagpaalalahanan
ka ng iyong mga karapatan sa ilalim ng Saligang Batas ng Pilipinas, nahahanda
ka bang magbigay ng isang malaya at kusang loob na salaysay?
SAGOT: Opo.
TANONG: Nahahanda kang magbigay ng salaysay kahit na walang abogado na
sumusubaybay sa iyo habang ikaw ay sinisiyasat?
SAGOT: Opo.
TANONG: Lubos mo bang naunawaan na ikaw ay hindi maaaring pilitin o gamitan
ng anomang uri ng karahasan upang maging saksi laban sa iyong sarili?
SAGOT: Opo.
327
VOL. 238, NOVEMBER 24, 1994 327
TANONG: Sa kabila ng lahat ng mga karapatang ipinaunawa sa iyo, magbibigay ka
pa rin ba ng salaysay?
SAGOT: Opo.
As observed by the Supreme Court, the phraseology used by the police respecting the
appointment of counsel de oficio for the accused in the above prefatory statement to
the extra-judicial statement of the accused was misleading. It gives the impression
that the services of a counsel de oficio can be availed of by the accused only during
the court proceedings, not during the custodial investigation. (People vs. Escober, et
al., 157 SCRA 541, 565 [1988]).
In another case, an extra-judicial confession prefaced by the following questions
and answers was also declared as inadmissible evidence, to wit:
TANONG: Nais mo bang magbigay ng kusang loob na salaysay at sagutin ng buong
katotohanan lahat ng itatanong namin sa iyo na hindi ka namin tinatakot,
sinasaktan, o pinangakuan ng anumang pabuya at dapat mong malaman ang
lahat ng sasabihin mo dito ay maaring gamitin laban o pabor sa iyo at kanino
mang tao sa alin mang hukuman sa ating bayan at dapat mo ring malaman na sa
pagsisiyasat na ito karapatan mong magkaroon ng manananggol at ang karapatan
mo sa ilalim ng Saligang Batas na maaari kang huwag sumagot sa itatanong
namin sa iyo kung gusto mo.
SAGOT: Opo.
TANONG: Samakatuwid, magbibigay ka nang malayang salaysay kahit na wala
kang manananggol?
SAGOT: Opo.
According to the Supreme Court in People vs. Quizon, 142 SCRA 362, 368 (1986),
where the above questions and answers were reproduced, while the accused was
informed of her right to remain silent and to hire a lawyer to assist her, she was not,
however, informed that if she could not secure a lawyer, the State will provide her
with one, to assist her in the custodial investigation. The omission is a fatal defect
that renders the extra-judicial confession inadmissible in evidence as ruled by the
Honorable Tribunal in People vs. Pascual, 109 SCRA 197, 205. As also declared by
the Supreme Court in People vs. Duero, 104 SCRA 379, 386, unless and until the
Miranda warnings and
328
waiver are demonstrated by the prosecution at trial, no evidence obtained as a result
of interrogation can be used against the accused.
Accordingly, the sworn statement must show that the accused was properly
informed of his constitutional rights. Where the interrogation begins with the
standard sacramental recital of the rights of accused, but without any effort to
explain them and ends with the mechanical question of whether the suspect
understands the notification, followed by the usual docile “opo” from the suspect, such
unfeeling procedure is not sufficient to satisfy the imperative requisites laid down by
the Bill of Rights for the protection of the person under custodial investigation.
(People vs. Tunday, 157 SCRA 529; People vs. Escober, 157 SCRA 541; People vs.
Trinidad, et al., 162 SCRA 714 [1988]).
C. Evidence Showing Compliance with the Right of Accused to Counsel
As observed by the Supreme Court in the case of People vs. Parojinog, 203 SCRA 673
(1991), it appears clear from the provision of Section 12 (1), Article III of the 1987
Constitution that a person under investigation for the commission of an offense may
choose his own counsel but if he cannot afford the services of counsel, he must be
provided with one. While the initial choice of the lawyer in the latter case is naturally
lodged in the police investigators, the accused really has the final choice as he may
reject the counsel chosen for him and ask for another one.
The purpose of the constitutional requirement on the rights of persons under
custodial investigation is to protect the accused from the compulsory disclosure of
incriminating facts. As the Supreme Court explained in People vs. Alvarez, 201 SCRA
364 (1991), the right is guaranteed merely to preclude the slightest coercion as would
lead the accused to admit something false (People vs. Layuso, 175 SCRA 47 [1989])
not to provide him with the best defense. A lawyer is an officer of the court and upon
his shoulders lies the responsibility to see to it that protection has been accorded
the rights of the accused, that no injustice to him has been committed. (People vs.
Remollo, 227 SCRA 375, 388 [1993]; People vs. Alvarez, 201 SCRA 364 [1991]).
329
VOL. 238, NOVEMBER 24, 1994 329
Appropriately, where the written confession of an accused was taken down and
signed in the presence not only of the investigating police officers but also in the
presence of his relatives and a lawyer appointed by the police for him, the confession
is admissible in evidence. In this regard, the very number of persons (all non-police)
observing the course of the investigation offered assurance that “police brutality”
would be very unlikely.
Moreover, the fact that a lawyer had been initially requested by the police to assist
in the investigation of an accused does not make the lawyer as one which had been
forced upon the accused. As observed by the Supreme Court in People vs.
Parojinog, 203 SCRA 673 (1991), where the records show that no objection was voiced
by the accused throughout the entire proceedings of the investigation and
afterwards when he subscribed to the veracity of his statement before the City
Prosecutor, he apparently acquiesced to the choice of his lawyer by the investigators.
Therefore, where an extra-judicial confession, which was taken down and signed
in the presence not only of the investigating officers but also in the presence of the
relatives and appointed lawyer of the accused, states that the accused had been
informed of his rights during custodial investigation, that he had understood
his rights and was waiving them as evidenced by his signature below the waiver
clause assisted by a lawyer, the Supreme Court agreed with the trial court that the
confession was voluntarily given. Had the confession been extracted from
the accused by coercion, violence and intimidation, he could have presented his
relatives to testify to such coercion but he did not. (People vs. Remollo, 227 SCRA
375, 386 [1993]).
——o0o——
330
VOL.189, SEPTEMBER 10, 1990 355
Self-Incriminating Evidence
ANNOTATION
SELF-INCRIMINATING EVIDENCE *
By
ALICIA B. GONZALEZ-DECANO **
_______________
1. §A.Historical Background of the Constitutional Inhibition

Against Self-Incrimination, p. 355
2. §B.The Right Against Self-Incrimination, p. 357
3. §C.Right Against Self-Incrimination Purely Personal and Must Be
Claimed, p. 381
4. §D.Statutory Immunity to Satisfy Constitutional Guarantee
Against Self-Incrimination, p. 387
5. §E.Rationale For the Immunity From Self-Incrimination, p. 388
_______________
§A. Historical Background of the Constitutional Inhibition Against Self-

Incrimination
Mr. Justice Vicente Abad Santos recounts the historical background as follows:
1
“The maxim nemo tenetur seipsum accusare (no one is bound

_______________
* A portion of the dissertation entitled “The Rationale of the Exclusionary Rule”.

**Presiding Judge, Br. 48, RTC, Urdaneta, Pangasinan.
1 Chavez vs. Court of Appeals, L-29169, August 19, 1968, cited by Jose M. Nolledo, Handbook on
Criminal Procedure, National Bookstore, Metro Manila; 1987, p. 185; also Vicente Francisco, Evidence,
Volume VII, Part II, East Publishing Co., Quezon City, 1973, p. 221.
356
to incriminate himself) had its origin in a protest against the inquisitorial and
manifestly unjust methods of interrogating accused persons, which has long obtained
in the continental system until the expulsion of the Stuarts from the Britain throne
in 1688. The creation of additional barriers for the protection of the people against
the exercise of arbitrary powers was not uncommon even in England. While the
admissions or confessions of the prisoner, when voluntarily and freely made, had
always ranked high in the scale on incriminating evidence, if an accused person be
asked to explain his apparent connection with a crime under investigation, the use
with which the questions put to him might assume an inquisitorial character, The
temptation to press the witness unduly, to brow beat him if he be timid or reluctant
to push him into the corner, and to entrap him into fatal contradictions, which was
painfully evident in many of the earlier state trials, notably in those of Sir Nicholas
Throckmorton, and Udal, the Puritan Minister, made the system so odious as to give
rise to a demand for its total abolition. The change in the English criminal procedure
in that particular, seemed to be founded upon no statute and no judicial opinion but
upon a general and silent acquiescence of the courts in a popular demand. But,
however adopted, it had become firmly embedded in English, as well as in American
Jurisprudence. So deeply did the inequities of the ancient system impress themselves
upon the mind of the American Colonists that the states, with one accord made a
denial of the right to question an accused person a part of their fundamental law, so
that a maxim which in England was a mere rule of evidence became clothed in this
country with the impregnability of a constitutional enactment.”
Mr. Justice Malcolm, in expressive language, tells us that this maxim was
recognized in England in the early days “in a revolt against the thumbscrew and the
rack”, (Villaflor vs. Summers, 41 Phil. 62). An old Philippine case, U.S. vs. Navarro,
cited by Tañada and Carreon, Political Law of the Philippines, Vol. II, 1962, speaks
of this constitutional injunction as having its origin in a protest against the
inquisitorial methods of interrogating the accused person, and as having been
adopted in the Philippines, “to wipe out such practices as formerly prevailed in these
Islands of requiring accused persons to submit to judicial
357
VOL.189, SEPTEMBER 10, 1990 357
examinations, and to give testimony regarding the offense with which they were
charged. 2
In the case of U.S. vs. Navarro, it was held that no one is bound to incriminate
3
himself, and this prevailing doctrine is older than the Government of the United
States. It was established on grounds of public policy and humanity; of policy because
if the party were required to testify it would place the witness under the strongest
temptation to commit the crime of perjury; and of humanity, because it would prevent
the extorting of confessions by duress.
The privilege against self-incrimination is guaranted in the Fifth Amendment
to the Federal Constitution and in the great majority of the state constitutions of the
United States. In the Philippines, the same principle obtains as a direct result of
American influence. At first, the provisions of our organic laws were similar to that
found in the Fifth Amendment to the Constitution of the United States and was as
follows:
“That no person xxx shall be compelled in any criminal case to be a witness against himself.”
(President’s Instructions to the Philippine Commission; Philippine Bill July 1902, Section 5,
par. 3; Jones Law, Act of Congress of August 29, 1916, Section 3, par. 3).
§B. The Right Against Self-Incrimination
The privilege against self-incrimination registers an important advancement in
the development of liberty-one of the great landmarks in man’s struggle to make
himself civilized. It reflects many of the fundamental values and most noble
aspirations; the willingness to subject those suspected of crime to the cruel trilemma
of self-accusation, perjury or contempt; the preference for an accusatorial rather than
an inquisitorial system of criminal justice; the fear that self-incriminating state-
_______________
2 Cited by Fortunato Gupit, Jr., Rules of Criminal Procedure, Rex Bookstore, Manila: 1986, p. 240; also
by Enrique Fernando, Constitution of the Philippines, Phoenix Press, Inc., Quezon City: 1974, p. 705.
3 Joaquin Bernas, The 1973 Constitution of the Philippines, Rex Printing Co., Inc., Quezon City, p. 848.
358
ments will be elicited by inhumane treatment and abuses; the senses of fair play
which dictates a fair state-individual balance by requiring the government to leave
the individual alone until good cause is shown for disturbing him and by requiring
the government in its contest with the individual to shoulder the entire load; the
respect for the inviolability of the human personality and of the right of each
individual to a private conclave where he may lead a private life; the distrust of self-
deprecatory statements; and the realization that the privilege while sometimes ‘a
shelter to the guilty’ is often ‘a protection to the innocent.’ 4
The right against self-incrimination is meant to avoid and prohibit positively

the repetition and recurrence of the certainty in human procedure of compelling a
person in a criminal or any other case, to furnish the missing evidence necessary for
his conviction. This was the lesson learned from the ancient days of the inquisition in
which accusation was equivalent to guilt. Thus, an act whether testimonial or
passive, that would amount to disclosure of incriminating facts, is covered by the
inhibition of the constitution. 5
Rule 115 of the 1985 Criminal Procedure as amended by resolutions adopted on

June 17, 1988 and July 7, 1988 provides as one of the rights of the accused to be
exempt from being compelled to be a witness against himself. Said provisions read as
follows:
Section1. In all criminal prosecution, the accused shall be entitled:
1. a.x x x
2. b.x x x
3. c.x x x
4. d.x x x
5. e.To be exempt from being compelled to be a witness against himself. (Italics 6
supplied). This is taken from the provisions of
_______________
4 Murphy vs. Waterfront Commission, 378, U.S. 52 (1964).

5 People vs. Olvis, G.R. No. 71092, September 30, 1987, Second Division, Justice Abraham Sarmiento.
6 Revised Rules of Court of the Philippines, Manila: Central Book Supply Inc., 1988, p. 262; also 1985
Rules on Criminal Procedure as

359
VOL.189, SEPTEMBER 10, 1990 359
1. the constitution, particularly Article III, Section 17 which states:
“No person shall be compelled to be a witness against himself.”

Although the provisions of the Rules of Court make reference only to criminal
cases, the privilege has consistently been held to extend to all proceedings sanctioned
by law and to all cases in which punishment is sought to be visited upon a witness,
whether a party or not. 7
The detailed rules are to be determined by the logical requirement of the principle,
regardless of the particular constitution. This doctrine, which has universal judicial
acceptance, leads to several important consequences:
1. (a)A clause exempting a person from being a witness against himself protects
as well a witness as a party accused in the case; that is, it is immaterial
whether the prosecution is then and there against himself or not. So also a
clause exempting the accused protects equally a mere witness.
2. (b)A clause exempting from self-incriminating testimony in criminal cases
protects equally in civil cases, when the fact asked for is a criminal one.
3. (c)The protection, under all clauses, extends to all manner of proceedings in
which testimony is to be taken, whether litigious or not, and whether ‘ex-
parte’ or otherwise. It therefore applies in all kinds of courts, in all methods
of interrogation before a court, and in investigations by a legislative or a body
having legislative functions. 8
Scope of the Privilege. Fundamentally, the privilege of the accused to be exempt from
testifying as a witness involves a prohibition against testimonial compulsion only. It
has, however, been extended to cover the production by the accused of documents,
chattels, and other objects demanded from him. He is thereby compelled at least to
make a statement, express or
_______________
amendment, Manila, Supreme Court, Philippines, July 27, 1988, p. 21.

7Vicente Francisco, Criminal Procedure, Annotated and Commented, East Publishing House, Co.,
Manila, 1963, p. 391.
8 Vicente Francisco, loc. cit.
360
implied, as to the identity of the articles produced. 9
The constitutional provision that “no person shall be compelled to be a witness

against himself”, seeks to protect a witness, the accused from compulsory disclosure
of incriminating facts. And those facts refer only to testimonial self-
incrimination and to the production by the accused of incriminating documents and
articles. But as was held in a case the provision does not support the proposition that
10
the confession of an accused is inadmissible. The conviction of an accused on a

voluntary extra-judicial statement is in no way violative of the constitutional
guarantee against self-incrimination. While there could be some possible
objections to the admissibility of a confession on grounds of its untrustworthiness,
such confession is never excluded as evidence on account of any supposed violation of
the constitutional immunity of the party from self-incrimination. 11
It is well-established doctrine in this jurisdiction that the constitutional inhibition

against self-incrimination is directed not merely to giving of oral testimony but
embraces as well as the furnishing of evidence by other means than by words of
mouth, the divulging, in short of any fact which the accused has a right to hold
secret. This constitutional prohibition extends to the following instances:
12
(a) Compelling a witness in a preliminary investigation to give a specimen of his

handwriting. Where in a preliminary investigation, the fiscal asked a witness to write
down what he had to dictate to him for the purpose of verifying his handwriting and
determining whether he had written certain documents allegedly falsified which the
witness refused to do, claiming his constitutional right not to incriminate himself, the
Supreme Court upheld the stand of the accused and said:
“xxx Writing is something more than moving the body, or the hands, or the fingers; writing
is not purely mechanical act, because it
_______________
9 Manuel Moran, Comments on the Rules of Court, Vol. IV, Manila: NGM Publishing Co., 1963, p. 160.
10 People vs. Carillo, 77 Phil. 572.
11 Ibid.
12 Beltran vs. Samson, 53 Phil. 574.
361
VOL.189, SEPTEMBER 10, 1990 361
requires the application of intelligence and attention; compelling the accused to write and
give specimen of his handwriting in order to determine whether it was he who wrote certain
documents alleged to have been falsified, is equivalent to compelling him to perform a positive
testimonial act.” 13
Except that this case is more serious, this instant case is similar to that of producing
documents or chattels in one’s possession because in both instances, the witness is
required to furnish evidence against himself. The present case is more serious than
that of compelling the production of documents or chattels, because here the witness
is compelled to write and create by means of the act of writing, evidence which does
not exist, and which may identify him as the falsifier.
(b) Requiring a person in an administrative investigation to copy in her own
handwriting certain letters introduced as evidence. This ruling has been followed and
applied in a subsequent case wherein an assistant solicitor was investigating an
administrative case. The complainant, who denied having written certain letters
introduced as evidence by the respondent was required to copy them in her own
handwriting in the presence of the investigator. The complainant refused invoking
her right not to incriminate himself. In upholding the contention of the complainant,
the Supreme Court declared:
“The complainant is perfectly entitled to the privilege invoked by her contained in Article III,
Section I, (17) of the Constitution of the Philippines, that ‘no person shall be compelled to be
a witness against himself’, which is understood to be applicable to all cases, be they criminal,
civil or administrative, because were she compelled to write and were it proven by means of
what she might write later that said documents had already been written by her, it would be
impossible for her to evade prosecution for perjury.” 14
_______________
13 Fernando, Enrique, Constitution of the Philippines, Quezon City: Phoenix Press, Inc., 1970, pp. 705-
706. Also Joaquin Bernas, A Historical and Juridical Study of the Philippine Bill of Rights, Manila: Ateneo
University Press, 1971, p. 240.
14 Bermudez vs. Castillo, 64 Phil. 483-484.
362
(c) Forced re-enactment like uncounselled and coerced confession come within the ban
against self-incrimination, “no person shall be compelled to be a witness against
himself”. This constitutional privilege has been defined as protection against
testimonial compulsion, but this has been extended to any evidence “communicative
in nature” acquired under circumstances of duress. 15
The accused, however, may waive his privilege by taking the stand and testifying
as a witness or by answering freely the incriminating questions put to him. 16
In the case of People vs. Olvis, et al. (supra) all the four accused were charged of
murder. The three accused, namely Romulo Villarojo, Leonardo Cademas, and
Dominador Sorela were convicted while Anacleto Olvis was acquitted.
Some of the documents presented were the five separate confessions of each of the
three accused while in custody. Based on the recorded evidence, the extra-judicial
confessions were held inadmissible because they were taken in the absence of a
lawyer of their own choice.
Furthermore, the accused were forced to reenact the crime shortly after their
apprehension without counsel. During the reenactment, pictures were taken. The
court held that “the constitutional privilege against self-incrimination has been
extended to any evidence ‘communicative in nature’ acquired under circumstances of
duress. Essentially, the right is meant to avoid and prohibit positively the repetition
and recurrence of the certainly inhuman procedure of compelling a person, in a
criminal or any other case, to furnish the missing evidence for his conviction. This
was the lesson learned from the ancient days of the inquisition in which accusation
was equivalent to guilt. Thus, an act, whether testimonial or passive, that would
amount to disclosure of incriminatory facts, is covered by the inhibition of the
constitution.”
This should be distinguished parenthetically from the mechanical acts the accused
is made to execute not meant to unearth undisclosed facts but to ascertain physical
attributes
_______________
15 People vs. Olvis, G.R. No. 71092, September 30, 1987 Second Division, Justice Abraham Sarmiento.
(infra).
16 Ibid.
363
VOL.189, SEPTEMBER 10, 1990 363
determinable by simple observation. This includes requiring the accused to submit to
a test to extract virus from his body, or compelling him to expectorate morphine from
17
his mouth, or making her submit to a pregnancy test, or a footprinting test, or

18 19 20
requiring him to take part in a police lineup in certain cases. In each of the cases,
21
the accused does not speak his guilt. It is not a prerequisite therefore that he be
provided with the guiding hand of counsel.
But a forced reenactment is quite another thing. Here, the accused is not merely
required to exhibit some physical characteristics, by and large, he is made to admit
criminal responsibility against his will. It is a police procedure just as condemnable
as an uncounselled confession. Accordingly, the evidence based on such a
reenactment is in violation of the Constitution and hence, incompetent evidence.”
In the judgment however, the Supreme Court acquitted two of the three accused
and convicted Romulo Villarojo on grounds other than the extra-judicial confession
and the reenactment.
(d) The accused is protected under Rule 132, Section 3 from questions which tend
to incriminate him, that is, which may subject him to penal liability. Questions which
tend to subject him to civil liability or directly degrade his character are regulated by
the said law. He can refuse to answer degrading questions unless it be to the fact in
issue or the fact from which the fact in issue would be presumed; but he must answer
to the fact of his previous conviction. Section 3 of Rule 132 provides: 22
“Section3. Rights and Obligations of a witness. A witness mustanswer questions, although

his answer may tend to establish a claimagainst him. However, it is the right of a witness:
1. 1.to be protected from irrelevant, improper or insulting questions, and from harsh or
insulting demeanor;
_______________
17 U.S. vs. Tan Teng, 23 Phil. 145.

18 U.S. vs. Ong Siu Hong, 36 Phil. 735.
19 Villaflor vs. Summers, 41 Phil. 62.
20 U.S. vs. Sales, 25 Phil. 337.
21 U.S. vs. Wade, 338 U.S. 218, cited by Justice Sarmiento.
22 Revised Rules on Evidence, effective July 1, 1989, Supreme Court, Manila, April 19, 1989, p. 16.
364
1. 2.not to be detained longer than the interests of justice require;

2. 3.not to be examined except only as to matters pertinent to the issue;
3. 4.not to give an answer which will tend to subject him to a penalty for an offense
unless otherwise provided by law; or
4. 5.not to give an answer which will tend to degrade his reputation, unless it be to the
very fact at issue or to a fact from which the fact in issue would be presumed. But a
witness must answer to the fact of his previous final conviction for an offense.”
(e) Privilege extends to production of inculpatory documents. The production of

documents or chattels by a person (whether ordinary witness or party-witness) in
response to a subpoena, or to a motion to order production, or to other forms or process
treating him as witness, may be refused under the protection of the privilege; and
this is universally conceded. 23
The privilege against self-incrimination extends to inculpatory documents.

Therefore, the accused cannot be required to produce a document in his possession
for use as evidence against him. It is violation of this constitutional privilege to call
upon him to produce a letter or other document in his possession which forms a link
in the chain of incriminating circumstances. This rule applies to agents to whose
possession the accused has entrusted the incriminating papers. So, a lawyer who has
received the defendant’s papers from him after his retainer as defense attorney can
not be called upon to produce them in court under a subpoena duces tecum. The
privilege likewise extends to the production of personal books or papers of the witness
which contain information tending to incriminate him. 24
Acts not covered by the Prohibition Against Self-Incrimination. The immunity of
any person from self-incrimination does not cover the following acts:
(a) Making the defendant to stand up for purposes of identification. The
constitutional prohibition is not violated by compelling the accused in a criminal case
to stand up for the purpose of identification, for every court has the power to
_______________
Vicente Francisco, op.cit., p. 244.

23
Ibid.
24
365
VOL.189, SEPTEMBER 10, 1990 365
require every person who is present as a party or who is a witness under examination,
to disclose his or her face to the court. It has been held that for this purpose, an
accused can be compelled to disclose only those parts of his person, which are not
usually covered. The admission as to marks and scars found upon the person of a
defendant in criminal prosecution during the investigation with a view of
ascertaining his identity for the purpose of arresting him, is not prohibited by a
constitutional provision that no person shall be compelled to testify against himself
in a criminal prosecution. 25
(b) Forcing an accused to remove his shoes for the purpose of comparing them with
the tracks. It has been held that the constitutional rule against self-
incrimination was not violated by the act of an officer in compelling one accused of
crime to remove his shoes for the purpose of permitting the officer to compare them
with the tracks, the officer himself making the comparison, since testimony of these
facts and of the result of the comparison was that of the officer, distinct from anything
said or done by the accused, and the test was whether proposed evidence was that of
the accused or whether it was evidence in itself unaided by any statement of the
latter. 26
(c) Making the prisoner put his foot in the tracks found in the scene of the crime.
In the case of State vs. Graham, it was held not erroneous for the court, on a trial for
larceny of a growing crop, to permit the officer who had the prisoner in custody that
he made the latter put his foot in the tracks found in the prosecutor’s field, and that
the foot fitted the tracks perfectly. 27
(d) Coercing the accused to place his left foot over a footprint for purpose of
comparison. In a murder case, there was found in the room where the murder had
been committed a footprint showing the toes and ball of a human foot which was
stamped upon the floor in blood. The accused was arrested as the suspected author
of the crime and taken to the house of the deceased, and notwithstanding an
exhibition of unwillingness,
_______________
25 14 Am. Jur. 875.

26 Francisco,op.cit., p. 395.
27 74 N.C. 646.
366
his left foot was placed over the spot and it was found to fit precisely. The question as
to whether such evidence constitutes a violation of the constitutional protection
against self-incrimination was raised before the Supreme Court on appeal by the
accused who was convicted of murder. In deciding the question against the accused,
the Supreme Court held that the proof of this circumstance was not in violation of the
constitutional precept against self-incrimination and was admissible in evidence. 28
(e) Requiring a witness to put on a pair of trousers to determine its ownership. In

another case, a witness was required by the trial judge to put a pair of trousers on
which according to the evidence of the prosecution was given by the wife of the
witness to her co-accused to facilitate the commission of the crime. The order of the
court was prompted by the denial by the witness of the ownership of the pants. On
appeal, the accused contended that such order of the judge was in violation of the
constitutional protection against self-incrimination. In dismissing such contention,
the Supreme Court held that “measuring or photographing the party is not within
the privilege. Nor is the removal or replacement of his garments or his shoes. Nor is
the requirement that the party move his body to enable the foregoing things to be
done. 29
(f) Ordering the accused in a crime of adultery to submit her body for examination.
In a criminal case for adultery, the court ordered the accused woman to submit her
body to the examination of a competent doctor to determine if she was pregnant or
not. She refused to obey the order on the ground that such examination of her person
was a violation of the protection against self-incrimination. Thereupon, she was
held in contempt of court and was ordered to be committed to prison until she should
permit the medical examination required by the court. Claiming that she was illegally
detained she asked for a writ of habeas corpus to restore her liberty. In deciding the
case against her, the Supreme Court held that the constitutional provision relating
to self-incrimination limits the protection to
_______________
U.S. vs. Zars, 42 Phil. 308.

28
People vs. Contadore, 47 O.G. 6156.

29
367
VOL.189, SEPTEMBER 10, 1990 367
a prohibition against compulsory testimonial self-incrimination. It is simply a
prohibition against legal process to extract from the defendant’s own lips, against his
will, an admission of his guilt. 30
(g) Taking from the body of the accused a portion of substance in a crime of rape
committed upon a girl of seven years as a result of which she was found to be suffering
from a venerial disease known as gonorrhea, the policeman who arrested the
defendant examined him and took a portion of the substance emitting from his body
and turned it over to the Bureau of Science for the purpose of having a scientific
analysis made of the same. The result of the examination showed that the defendant
was suffering from gonorrhea. During the trial, the result of such examination was
offered as evidence. The defendant objected to its admissibility on the ground that it
was requiring him to give testimony against himself. The objection was overruled and
after the trial, the accused was convicted. On appeal, the Supreme Court sustained
the admissibility of the report of scientific examination, holding that “the accused was
not compelled to make any admission or answer any question x x x.” 31
(h) Taking blood sample from accused while unconscious for purposes of blood test.
In the case of Breithaupt vs. Abraham, the accused was charged of homicide through
reckless imprudence—arising from an automobile collision involving an automobile
driven by him while intoxicated. The issue is whether or not the result of a test based
on a sample of blood taken, at the request of the police officer by a physician from the
accused while the latter was unconscious, was admissible in evidence. The analysis
showed that the same contained 17% alcohol. The accused was convicted. Justice
Clark speaking of the majority opinion held:
32
“There was nothing legally objectionable in the scientific determination of intoxication in the
case at bar. Due process is not measured by the yardstick of personal reaction or the
sphygmogram of the most sensitive person but by that whole community sense of decency
and
_______________
30 Villaflor vs. Summers, 41 Phil. 62.

31 Holt vs. U.S. 218 U.S. 245 cited by Francisco op.cit., p. 398.
32 342 U.S. 165 96 L ed 183 cited by Francisco, Ibid. p. 400.
368
fairness that has been woven by common experience into the fabric of acceptable conduct. It
is on this bedrock that this court has established the concept of due process.”
(i) An exception to the right against self-incrimination is when there is an
immunity statute. For instance, section 8 of Republic Act 1379, Forfeiture of Illegally
33
obtained wealth, P.D. 749 for bribery and graft cases, Executive Order No. 14, and
P.D. 1886. The provisions of these laws are quoted hereunder:
1. Section 8 of Republic Act 1379 . Proceedings under Republic Act 1379 are
criminal or penal in nature hence, the exemption of defendants in criminal cases from
being witness against themselves are applicable thereto. Said Section 8, provides:
“Protection against self-incrimination, neither the respondent nor any other person shall
be excused from attending and testifying or from producing books, papers, correspondence,
memoranda, and other records on the ground that the testimony or evidence, documentary
or otherwise, required of him may tend to incriminate him or subject him to prosecution; but
no individual shall be prosecuted criminally for an account of any transaction, matter, or
thing concerning which he is compelled, after having claimed his privilege against self-
incrimination, to testify or produce evidence, documentary or otherwise, except that such
individual so testifying shall not be exempt from protection and conviction for perjury or false
testimony committed in so testifying or from administrative proceedings.”
2. Section 1 of P.D. 749 (Bribery and Graft cases) provides: “Any person who
voluntarily gives information about any violation of articles 210, 211 and 212 of the
Revised Penal Code; Republic Act No. 1319 as amended; Section 345 of the Internal
Revenue Code and Section 3604 of the Tariff and Customs Code and other provisions
of the said codes penalizing abuse or dishonesty on the part of the public officials
concerned; and other laws, rules and regulations punishing acts of graft, corruption
and other forms of official abuse; and who willingly testifies against any public official
or employee for such
_______________
33 Florenz D. Regalado, Remedial Law Compendium, Volume II, Premium Printing Press of Quezon City,
1988, pp. 294-295.

369
VOL.189, SEPTEMBER 10, 1990 369
violation shall be exempt from prosecution or punishment for the offense with
reference to which his information and testimony were given, and may plead or prove
the giving of such information and testimony in bar of such prosecution: Provided,
that this immunity may be enjoyed even in cases where the information and
testimony are given against a person who is not a public official but who is a principal
or an accomplice, or accessory in the commission of any of the above-mentioned
violations; Provided, further, that this immunity may be enjoyed by such informant
or witness notwithstanding that he offered or gave the bribe or gift to the public
official or is an accomplice for such gift or bribe giving; and Provided, finally, that the
following conditions concur:
1. a.The information must refer to consummated violations of any of the above-

mentioned provisions of law, rules and regulations;
2. b.The information and testimony are necessary for the conviction of the
accused public officer;
3. c.Such information and testimony are not yet in the possession of the State;
4. d.Such information and testimony can be corroborated on its material points;
and
5. e.The informant or witness has not been previously convicted of a crime
involving moral turpitude.” 34
3. Sections 4 and 5 of Executive Order No. 14 dated May 7, 1986 is another example
of Immunity Statute which does not excuse any person from testifying or producing
evidence in Presidential Commission on Good Government (PCGG for short) cases
even if he claims the privilege against self-incrimination but after so claiming, he
can not be prosecuted criminally thereon but he is not exempt from prosecution and
conviction for perjury or false testimony. The PCGG is authorized to grant immunity
from criminal prosecution to any person whose testimony is necessary. Section 4 of 35
the said Executive order provides:

_______________
Appendices, The Revised Penal Code, Central Book Supply, Inc., Manila: 1988, p. 186.
34
Fortunato Gupit, Jr., Rule of Criminal Procedure, Rex Printing Co.: Quezon City, 1986, p. 244.
35
370
“No person shall be excused from attending and testifying or from producing books, papers,
correspondence, memoranda and other records on the ground that the testimony or evidence,
documentary or otherwise, required of him may tend to incriminate him or subject him to
prosecution; but no individual shall be prosecuted criminally for or on account of any
transaction, matter or thing concerning which he is compelled, after having claimed the
privilege against self-incrimination, to testify or produce evidence, documentary or
otherwise, except that such individual so testifying shall not be exempt from prosecution and
conviction for perjury or false testimony committed in so testifying or from such
administrative proceeding as may be proper and necessary.”
Section 5, provides:
“The Presidential Commission on Good Government is authorized to grant immunity from
criminal prosecution to any person who testifies to the unlawful manner in which any
respondent, defendant or accused, has acquired or accumulated the property or properties in
question in cases where such testimony is necessary to prove violations of existing laws.”
4. Another immunity statute is Section 5 of P.D. 1886, which reads:
“No person shall be excused from attending and testifying or from producing books, records,
correspondence, documents, or other evidence in obedience to a subpoena issued by the Board
on the ground that his testimony or the evidence required of him may tend to incriminate
him or subject him to penalty or forfeiture; but his testimony or any evidence produce by him
shall not be used against him in connection with any transaction, matter or thing concerning
which he is compelled after having invoked his privilege against self-incrimination, to
testify or produce evidence, except that such individual so testifying shall not be exempt from
prosecution and punishment for perjury committed in so testifying, nor shall he be exempt
from demolition or removal from office.”
In the case of Galman vs. Pamaran, General Fabian Ver filed a motion to exclude his
36
testimony before the Agrava Fact-

_______________
138 SCRA 295.

36
371
VOL.189, SEPTEMBER 10, 1990 371
admission was in derogation of his constitutional right against self-
incrimination and violative of the immunity granted by P.D. 1886.
Major General Prospero Olivas and others who were his co-accused also filed
similar motions. On June 13, 1985, respondent Sandiganbayan issued a resolution,
subject of this certiorari, admitting all the evidences offered by the prosecution except
the testimonies and/or other evidence produced by private respondents in view of the
immunity granted by P.D. 1886. The crux of the instant controversy is the
admissibility in evidence of the testimonies given by the eight (8) private respondents
who did not invoke their rights against self-incrimination before the Agrava Board.
The Tanodbayan in his petition maintained that the failure of the respondents to
invoke before the Agrava Board the immunity granted by P.D. 1886, made their
testimonies admissible. The private respondents contend that without the immunity
granted by the second clause of Section 5 of P.D. 1886, the legal compulsion imposed
by the first clause of the same section would suffer from constitutional infirmity for
being violative of the witness’ right against self-incrimination.
“We are not persuaded that when they testified, they voluntarily waived their constitutional
rights not to be compelled to be a witness against themselves much less their right to remain
silent. xxx”
No doubt, the private respondents were not merely denied their sacred constitutional
rights, but also the right to due process which is fundamental fairness. xxx.”
A review of the pleading and their annexes showed that the manifestations and
admissions of both counsel, failed to reveal adherence to and compliance with the due process.
The manner in which the testimonies were taken from the private respondents fall short of
the constitutional standards both under the DUE PROCESS CLAUSE and under the
EXCLUSIONARY RULE in Section 20, Art. IV of the 1973 Constitution. In the face of such
grave constitutional infirmities, the individual testimonies of private respondents cannot be
admitted against them in any criminal proceeding.
This is true regardless of the absence of claim of constitutional privilege or of the presence
of a grant of immunity by law, with respect VOL.189, SEPTEMBER 10, 1990
372
to the immunity provided in Section 5, P.D. 1886, the Supreme Court classified immunity
into “Use Immunity and Transactional Immunity”. Use Immunity prohibits use of witness
compelled testimony and its fruits in any manner in connection with the criminal prosecution
of the witness. “Transactional Immunity” grants immunity to the witness from prosecution
for an offense to which his compelled testimony relates.” 37
Section 5 of P.D. 1886, according to the Supreme Court, belongs to the first type of
Immunity Statutes. It grants merely immunity from use of any statement given
before the Board, but not immunity from prosecution by reason of or on the basis
thereof. Merely testifying and/or producing evidence do not render the witness
immuned from prosecution notwithstanding his invocation of the right against self-
incrimination. He is merely saved from the use against him of such statement and
nothing more. Stated otherwise xxx he runs the risks of being prosecuted even if he
sets up his right against self-incrimination. The dictates of fairplay, which is the
hallmark of due process, demands that private respondents should have been
informed of their rights to remain silent and warned that any and all statements to
be given by them may be used against them. This, they were denied, under the
pretense that they were not entitled to it and that the Board had no obligation to so
inform them.
The Supreme Court further ruled against the view of the petitioners that the right
against self-incrimination must be invoked before the Board in order to prevent the
use of any given statement against the testifying witness in a subsequent criminal
prosecution. The exclusionary rule applies.
The High Court continued further by saying that a literal application of a
requirement of a claim of the privilege against self-incrimination as a
condition sine qua non to the grant of immunity presupposes that from a layman’s
point of view, he has the option to refuse to answer questions and therefore, to make
such claim. P.D. 1886, however, forecloses such option of refusal by imposing
sanctions upon its exercise, thus:
_______________
37 Black Law Dictionary, 5th Edition, 1979, cited by Justice Cuevas, in Galman vs. Pamaran, supra.
373
VOL.189, SEPTEMBER 10, 1990 373
“Section4. The Board may hold any person in direct or indirect contempt, and impose
appropriate penalties therefor.
A person guilty of xxx including xxx refusal to be sworn or to answer as a witness or to
subscribe to an affidavit on deposition when lawfully required to do so may be summarily
adjudged in direct contempt by the Board. xxx”
Such threat of punishment for making a claim of the privilege leaves the witness no
choice but to answer and thereby forfeit the immunity purportedly granted by Section
5.
Under the oppressive compulsion of P.D. 1886, immunity must in fact be offered
to the witness before he can be required to answer, so as to safeguard his sacred
constitutional right. In this case, compulsion has already produced its desired result
and the private respondents had all testified without offer of immunity. The only way
to cure the law of its unconstitutional effects is to construe it in the manner as if
immunity had in fact been offered.
It was held that in view of the potent sanctions imposed on the refusal to testify or
to answer questions under Section 4 of P.D. 1886, the testimonies compelled thereby
are deemed immunized under Section 5 of the same law. The applicability of the
immunity granted by P.D. 1886 cannot be made to depend on a claim of the privilege
against self-incrimination which the same law practically strips away from the
witness.
The petition was dismissed by the Supreme Court.
Privilege Against Self-Incrimination Refers to the Testimony that may Expose a
Witness to Prosecution not to disgrace or Humiliation. The object of the amendment
is to establish in express language and upon a firm basis the general principle of
English and American jurisprudence, that no one shall be compelled to give testimony
which may expose him to prosecution for crime. It is not declared that he may not be
compelled to testify to facts which may impair his reputation for probity, or even tend
to disgrace him, but the line is drawn at testimony that may expose him to
prosecution. 38
Reality of the Danger of Persecution.—The constitutional guaranty is confined to

cases where there is real danger and does not
_______________
Ibid. p. 405.
38
374
extend to remote possibilities out of the ordinary course of law. The question must be
governed as much by the judge’s personal perception, of the peculiarities of the case
as by the facts actually in evidence. But in any view, the danger to be apprehended
must be real, with reference to the probable operation of law in the ordinary course
of things, and not merely speculative, having reference to some remote and unlikely
contingency. If there is reasonable ground to apprehend that the witness’ answer will
have the effect claimed by him, he cannot be required to answer. A witness cannot be
compelled to give a link to a chain of evidence, by which his conviction of a criminal
offense can be furthered. The rule is firmly established that, if the proposed testimony
has a tendency to incriminate the witness, establishes a link in the chain of evidence
which may lead to his conviction, or discloses the names of persons upon whose
testimony he might be convicted, he cannot be compelled to answer. 39
A witness may refuse to answer only when there is a real danger of self-
incrimination, as revealed by all the circumstances of the case, whether such
danger exists, is generally for the determination of the court, but in a doubtful case,
the witness is permitted to make the determination. Once the court is satisfied that
a direct answer to a question might implicate the witness, the witness becomes the
sole judge of whether the answer he would have to give would tend to incriminate
him. And the witness cannot be compelled to explain how the answer would tend to
incriminate him. It is sufficient if he swears that he believes his answer will have
that effect. 40
Witness Obliged to Answer Question Ruled Upon as not Incriminating.It is clear

that a witness may not arbitrarily refuse to answer a question on the ground that his
answer might incriminate him when the court can determine as a matter of law that
no direct answer which the witness may make can tend to incriminate him.
As against a witness’ inconsistent and unjustified claim to a constitutional right,
is his clear duty as a citizen to give frank,
_______________
39 Vicente J. Francisco, Revised Rules of Court, Vol. VII, Part II, Evidence, East Publishing Co.: Quezon
City, p. 250.
40 Ibid.
375
VOL.189, SEPTEMBER 10, 1990 375
sincere, and fruitful testimony before a competent authority. The State has the right
to exact fulfillment of a citizen’s obligations, consistent of course with his right under
the Constitution. When a specific right and specific obligation conflict with each
other, and one is doubtful or uncertain while the other is clear and imperative, the
former must give way to the latter. The right to life is one of the most sacred rights
that the citizen may claim, and yet the State may deprive him of it if he violates his
correspondng obligation to respect the life of others. As Mr. Justice Johnson said
in Anderson vs. Dunn:
“The wretch beneath the gallows may repine at the fate which awaits him, and yet it is no
less certain that the laws under which he suffers were made for his security.”
Paraphrasing this pronouncement, the Supreme Court held: in the case of Arnault
vs. Nazareno, et. al., 46 O.G. 3100:
“xxx the petitioner may not relish the restraint of his liberty pending fulfillment by him of
his duty, but it is no less certain that the laws under which his liberty is restrained were
made for his welfare.”
Extinction of the Privilege. When the criminality of an act ceases, so that the actor is
no longer liable to penalty for it, a question about the act would no longer tend to
criminate. Hence, the privilege would cease.
The criminality of an act may cease by lapse of time, barring prosecution, by prior
conviction or acquittal or other jeopardy discharging from further liability to
prosecution, and by executive pardon, or by legislative amnesty given
unconditionally. 41
The Privilege of Self-Incrimination Protects only Natural Individuals.The

historic function of the privilege against self-incrimination is to protect only the
natural individual. A corporate officer may not withhold testimony or documents on
the ground that his corporation would be incriminated. A custodian of corporate books
may not withhold them on the ground that he personally may be incriminated by
their production. This principle applies also to an unincorporated association such as
_______________
Ibid.
41
376
a labor union. But a custodian of such books cannot be compelled to condemn himself
by his own oral testimony in absence of a grant of adequate immunity from
prosecution. Such a custodian may be held in contempt for failing to produce
subpoenaed corporation or association records in his control. 42
Constitutional Prohibition Against Self-Incrimination Should be liberally
Construed in Favor of the Accused. The constitutional prohibition against self-
incrimination, in order that it may produce its desired purpose and may not be
rendered a dead letter, should be interpreted liberally in favor of the person invoking
the same. 43
The rights intended to be protected by the constitutional provision that no man

accused of crime shall compelled to be a witness against himself is so sacred, and the
pressure toward their relaxation so great when the suspicion of guilt is strong and
the evidence obscure, that it is the duty of courts liberally to construe the prohibition
in favor of the personal rights, and to refuse to permit any step tending toward their
invasion. 44
Character of the Question. In the case of U.S. vs. Coffey, it was held that it is
enough (1) that the trial court be shown by argument how conceivably a prosecution,
building on the seemingly harmless answer, might proceed step by step to link the
witness with some crime against the United States, and (2) that this suggested course
and scheme of linkage not seem incredible in the circumstances of the particular case.
It is in this latter connection, the credibility of the suggested connecting chain, that
the reputation and known history of the witness may be significant. 45
Tests as to Whether or not the Question is Incriminating. As to oral testimony, there

remain for consideration the questions (1) who makes the determination whether a
question is incriminating, and (2) what are the tests of an incriminating question.
As to the first question, it was established by Chief Justice Marshall in United
States vs. Burr that it is the province of
46
_______________
42 Francisco, Criminal Procedure, op.cit., p. 404.

43 Bermudez vs. Castillo, 64 Phil. 483.
45 198 F 2d 438.
46 25 Fed. cases, 58.
377
VOL.189, SEPTEMBER 10, 1990 377
the court to judge whether any direct answer to the question proposed will furnish
evidence against the witness. Thus, simply asserting the privilege is not sufficient.
The witness himself is not the sole and ultimate judge of the incriminating nature of
the question.
As to the second question, of knowing whether or not a question is incriminating,
Chief Justice Marshall said:
“If such answer may disclose a fact which furnishes a necessary and essential link in a chain
of testimony, which could be sufficient to convict him of any crime he is not bound to answer
it so as to furnish matter for that conviction.”
From the modern case, it appears that “link in a chain includes testimony once
removed, i.e. testimony which may reveal sources from which evidence could be
obtained that would lead to conviction or prosecution. 47
Following the concept of link in a chain to its logical conclusion, the answer to the
most innocuous question could conceivably tend to incriminate. However, the
Supreme Court of the U.S. gives this test:
“to sustain the privilege, it need only be evident from the implications of the question, in the
setting in which it is asked; that a responsive answer to the question or an explanation of
why it cannot be answered might be dangerous because injurious disclosure could result. The
trial judge in appraising the claim must be governed as much by his personal perception of
the pecularities of the case as by the facts actually in evidence.”
48
Prohibition Against Self-Incrimination Applicable Not Only to Criminal but also to

Civil and Administrative cases. Compelling a person to appear before a non-judicial
officer or body investigating a criminal offense and give incriminating testimony
concerning himself is generally held to constitute a violation of immunity from self-
incrimination guaranteed by constitutional provisions. Even where a person is
testifying in an
_______________
Francisco, Criminal Procedure, op.cit. p. 412.

47
341 U.S. 479.

48
378
investigation concerning other persons, if answers to questions asked will disclose
criminal conduct on his part from which he is not protected, it is his right to decline
to answer. Of course, if a person voluntarily gives his testimony at an inquisition,
without claiming his privilege, he waives his privilege. 49
The privilege therefore may be invoked in all kinds of proceedings, including

investigation by legislative bodies. It may likewise be invoked by witnesses being
examined by a fiscal conducting investigation. Clearly, the right not to be compelled
to be a witness against himself may therefore be invoked not only in criminal
proceedings, but also, in all other types of suits, including forfeiture cases. What is
controlling is not the character of the suit but the nature of the proceedings.
The Supreme Court held that “the Cabal vs. Kapunan doctrine militates very
50
heavily against this theory. Said case is not a criminal case as its title clearly
indicates. It is not people vs. Cabal nor a prosecution for a criminal offense. And yet,
when Cabal refused to take the stand, to be sworn, and to testify upon being called
as a witness for complainant Col. Maristela in a forfeiture of illegally acquired assets,
this court sustained Cabal’s plea that for him to be compelled to testify will be in
violation of his right against self-incrimination”. It was “not stated that since he is
not an accused and the case is not a criminal case, Cabal can not refuse to take the
witness stand, and testify, and that he can invoke his right against self-
incrimination only when a question which tends to elicit an answer that will
incriminate him is propounded to him. It is not the character of suit involved but the
nature of the proceedings that controls. The privilege has consistently been held to
extend to all proceedings sanctioned by law and to all cases in which punishment is
sought to be visited upon a witness, whether a party or not. If, in a mere forfeiture
case where only property rights were involved, the right not to be compelled to be a
witness against himself is secured in favor of the defendant; then with more reason
it can not be denied to a person facing investigation before a Fact Finding Board
where his life and liberty, by reason of the statements to be given by him, hang on
_______________
14 Am. Jur., 872.

49
65 SCRA 1059.
50
379
VOL.189, SEPTEMBER 10, 1990 379
the balance. 51
Another example of cases where this right against self-incrimination may be

claimed in administrative cases, is the case of Arsenio Pascual vs. The Board of
Medical Examiners. 52
In this case, Pascual, Jr., petitioner-appellee, filed on February 1, 1965 with the
Court of First Instance of Manila an action for prohibition with prayer for preliminary
injunction against the Board of Medical Examiners. At the initial hearing of an
administrative case for alleged immorality, counsel for complainants announced that
he would present as his first witness Antonio Pascual, Jr. the petitioner-appellee, the
respondent in such malpractice charge. Therefore, Pascual’s counsel objected to said
manifestation relying on the constitutional right to be exempt from being a witness
against himself. The Board of Examiners set the date for hearing on February 12,
1965 unless a restraining order to said effect was secured. The petitioner secured on
February 9, 1965, a restraining order commanding the Board of Medical Examiners
to refrain from hearing or further proceeding with the hearing. The complainant
Gatbonton filed an intervention which was granted by the lower court. A decision was
rendered by the lower court on August 2, 1965, finding the claim of the petitioner
appellee to be well-founded and prohibiting the Board of Medical Examiners from
compelling the petitioner to act and testify as a witness for the complainant in said
investigation without his consent and against himself. On appeal, the Supreme
Court, basing its ruling in the famous Cabal vs. Kapunan case, held:
“We found for the petitioner in accordance with the well-settled principle that the accused in
a criminal case may refuse, not only to answer incriminatory questions, but, also, to take the
witness stand. xxx
The proceedings for forfeiture in the Cabal vs. Kapunan case while administrative in
nature thus possesses a criminal or penal aspect. The case before us is not dissimilar; the
petitioner would be similarly disadvantaged. He could not suffer the forfeiture property but
the revocation of his license as a medical practitioner, for some
_______________
51 Galman vs. Pamaran (supra).

52 28 SCRA 344.
380
and even greater deprivation. To the argument that Cabal vs. Kapunan could thus be
distinguished, it suffices to refer to an American Supreme Court opinion highly persuasive
in character.” 53
In the language of Justice Douglas, he said that “the self-incrimination Clause of

the Fifth Amendment has been absorbed in the Fourteenth, that it extends its
protection to lawyers as well as to other individuals, and that it should not be watered
down by imposing the dishonor of disbarment and the deprivation of a livelihood as
a price for asserting it.” The Supreme Court said that the above-quoted ruling could
also equally apply to a proceeding that could possibly result in the loss of the privilege
to practice the medical profession.
The Supreme Court went further by saying that “the constitutional guarantee
protects as well the right to silence. The accused has a perfect right to remain silent
and his silence can not be used as a presumption of his guilt.”
In conclusion, the Supreme Court held: xxx “It could thus clearly appear that no
possible objection could be legitimately raised against the correctness of the decision
now on appeal. xxx In an administrative hearing against a medical practitioner for
alleged malpractice, respondent Board of Medical Examiners cannot, consistently
with the self-incrimination clause, compel the person proceeded against to take the
witness stand without his consent.”
Protection Against Self-Incrimination Extends to Aliens. The right against self-
incrimination which is expressly guaranteed by the constitution extends to aliens
as well as to citizens. 54
Production of Private papers or documents

Containing Incrimination Evidence. A person under a criminal charge cannot be
compelled by a process treating him as a witness to produce purely private papers or
documents that may contain incriminating evidence. It has been said that a mere
demand on him to produce them is a violation of his right against self-
incrimination, even though no order is issued by the court. 55
_______________
53 Spevack vs. Klein, 385 U.S. 511.

54 U.S. vs. Brooks, 284 F 808.
14 Am. Jur., op.cit., p. 476.
55
381
VOL.189, SEPTEMBER 10, 1990 381
The legislature cannot require a stockbroker to permit an examination of his private
books and papers to enable a tax officer to determine whether or not a record of stock
transfer which he is, under penalty, required to keep to furnish evidence for their
taxation has been correctly kept, where the constitution forbids compelling one in a
criminal case to be a witness against himself. 56
Letters which are voluntarily written by an accused after the crime, while he is in
prison, and which came into the possession of the prison officials under established
practices reasonably necessary to promote discipline may be used in evidence without
infringing the constitutional safeguard against self-incrimination or unreasonable
searches and seizures. 57
Compulsory Production of Records Required by Law to be Kept. The constitutional

privilege which protects a person from the compulsory production of private papers
which may tend to incriminate him does not extend to records required by law to be
kept in order that there may be suitable information of transaction which are the
appropriate subject of governmental regulation, and the enforcement of restrictions
validly established. It does not apply to papers that are required by law to be kept for
police or other official inspectors, or that are required to be filed in a public office.
58
Physical Custody of Official Documents . The physical custody of incriminating

documents does not of itself protect the custodian against their compulsory
production. If the officer has embezzled the public money and falsified the public
accounts, he cannot seal his official records and withhold them from the prosecuting
authorities on a plea of constitutional privilege against self-incrimination. 59
§C. Right Against Self-Incrimination Purely Personal and Must Be Claimed

The privilege against self-incrimination is a personal one. But
_______________
56 Francisco, Civil Procedure, p. 415.

57 Ibid.
58 14 Am. Jur., op.cit., p. 877.
59 Ibid.
382
the privilege is an option of refusal, not a prohibition or inquiry. Hence, when an
ordinary witness is on the stand and a self-incriminating act relevant to the issue is
desired to be sworn by him, the question may be asked; and then it is for the witness
to say whether he will answer it or claim his privilege, for it cannot be known
beforehand what he will do. 60
The privilege must be claimed. Its invocation does not require any special
combination of words or the skill of a lawyer or any ritualistic formula, but words
capable of being reasonably understood. There must be an affirmative claim of
privilege. Since the privilege is purely personal it can not be invoked on behalf of or
in a desire to protect, others from punishment. 61
Expressed in another language, the words “to be a witness against himself” mean
that the clause gives no protection to disclosure of facts which tend to incriminate
only third parties. 62
If an individual gives a voluntary statement to a court, administrative board, or

legislative committee and makes no claim of privilege, he cannot, in the absence of
an applicable immunity statute, claim that he should have been subsequently
convicted of a federal crime based upon his testimony previously given. The reverse
is also true. A witness cannot refuse to testify at all before any questions are asked
of him. In short, the witness must invoke the privilege; and he must invoke it, at the
time the question or questions are put to him. 63
Waiver of the Right Against Self-Incrimination. The guarantee of immunity

from compulsory from self-incrimination is a personal privilege and maybe waived
in various ways such as (1) an accused in a criminal trial taking the stand to testify
in his own defense, (2) by signing a “waiver of immunity”, (3) by testifying freely in a
way to incriminate himself before trying to invoke the privilege. 64
It seems clear that the accused may waive his right to invoke
_______________

62 Ibid.
63 Ibid.
64 Rogers vs. J.S., 340 U.S. 367.
383
VOL.189, SEPTEMBER 10, 1990 383
the rule against self-incrimination, and he has been held to do so where he acts
voluntarily, and not under compulsion, in surrendering his shoes for the purpose of
comparison with footprints, or in putting his foot into the same, or in making
footprints for this purpose. If the defendant in a criminal case voluntarily takes the
witness stand in his own behalf, he thereby subjects himself to the same rules of
cross-examination that govern other witnesses and waives his constitutional
privilege of not answering proper questions that may tend to convict him of the crime
for which he is on trial. The defendant may voluntarily submit to a physical
examination and thereby may waive any objection which he might raise on the
ground that such examination deprives him of constitutional rights. 65
A litigant in a civil action, who takes the stand and testifies in his own behalf,
cannot claim the privilege against self-incrimination when cross-examined
regarding matters made relevant by his direct examination. The defendant in a
criminal case, by taking the witness stand waives the privilege as to all of his
testimony. 66
In United States vs. Pierre, it was held that after a witness has confessed all the
elements of a crime in a general way, he may not withhold the details. The court said
that while it must be conceded that the privilege suppresses the truth, it is not a
privilege to gamble the truth. 67
In the case of Rogers vs. United States, the petitioner voluntarily testified to the
fact that she had been treasurer of the Communist Party of Denver, but she invoked
the privilege when asked to name the person to whom she turned over party records.
The court laid down this test:
“xxx The court was required to determine, as it must, whenever the privilege is claimed,
whether the question presented a reasonable danger of further crimination in the light of all
the circumstances, including any previous disclosures. As to each question to which claim of
privilege is directed, the court must determine whether the answer to that particular
question would subject the witness to a “real dan-
_______________
65 14 Am. Jur., op.cit., p. 880.

66 Francisco, Criminal Procedure, loc.cit.
67 Ibid. p. 418.
384
ger” of further crimination. After petitioner’s admission, that she held the office of Treasurer
of the Communist Party of Denver, a disclosure of acquaintance with her successor presents
no more than a “mere imaginary possibility of increasing the danger of prosecution.” 68
In the case of U.S. vs. Cofradia, 4 Phil. 155, the court ordered the defendant to show
the tattoo which, according to the statement of the witnesses, he had on his hands, to
which order the defendant obeyed without any protest or objection whatsoever. Held:
“That the defendant having made no objection to this order at the time it was given,
he loses his right to question the validity of the same on appeal.
Where an accused entered a plea of not guilty and voluntarily offered himself, in
effect as a witness, he waived the protection thrown about him by that provision of
the law which says that an accused person is not required to be a witness against
himself. (U.S. vs. Benayoh, 35 Phil. 23)
Is the Prohibition Against Self-Incrimination Applicable to
InvoluntaryConfession? The constitution provides that “no person shall be compelled
to be a witness against himself,” while the Rules of Court provides that “in all
69
criminal prosecution, the accused shall be entitled to be exempt from being compelled
to be a witness against himself.” 70
The rule that prevails in the United States, is that acknowledgments of guilt must
be voluntary to be admissible against the accused. This rule rests upon the maxim
nemo tenetur seipsum accusare. This maxim is, under certain circumstances
unreliable, but it is based upon humanitarian grounds. It is the manifestation of a
spirit of fairness toward the accused. This spirit, which underlies the maxim, is called,
the fox hunter’s reason. This consists in introducing upon the carpet of legal
71
procedure the idea of fairness’ in the sense in which the word is used by sportsmen.
The fox is to have a fair chance for his life; he must have what is called ‘law’—leave
to run a certain length
_______________
68 Ibid.
69 1987 Constitution of the Philippines, Article III, Section 17.
70 1985 Rules on Criminal Procedure, Rule 115, Section 1 (e).
71 Jereny Bantham, “The Rationale of Judicial Evidence, cited by Vicente J. Francisco, op. cit., p. 242.
385
VOL.189, SEPTEMBER 10, 1990 385
of way for the express purpose of giving him a chance for escape. While under pursuit
he must not be shot; it would be unfair as convicting him of burglary on a hen roost
in five minutes’ time in a court of conscience.”
When Privilege must be Invoked. The privilege against self-incrimination must
be invoked at the proper time, and the proper time to invoke it is when a question
calling for a criminating answer is propounded. This has to be so, because before a
question is asked there would be no way of telling whether the information to be
elicited from the witness is self-incriminating or not. As stated in Jones in Evidence,
a person who has been summoned to testify cannot decline to appear, nor can he
decline to be sworn as a witness” and “no claim of privilege can be made until a
question calling for a criminating answer is asked; at that time, and, generally
speaking, at that time only, the claim of privilege may properly be interposed. 72
The case of Fermin Bagadiong vs. Feliciano Gonzales is an example of a case

73
when the right against self-incrimination is invoked at the proper time.

When the Civil Case No. 546 was called for trial on April 18, 1966, counsel for the
plaintiff called one of the defendants, the herein petitioner, Bagadiong to the witness
stand as one of the witnesses for the plaintiffs. Counsel for the defendants raised the
objection that the said party cannot be called as a witness for the plaintiff because it
would violate his constitutional right against self-incrimination. On the other
hand, counsel for the plaintiffs contended that this being purely a civil action the
right against self-incrimination is not involved, and if any, testimony elicited from
the petitioner would tend to incriminate himself, there would be ample time for the
petitioner to raise the proper objection.
The Respondent Judge held that the petitioner may testify as a witness for the
plaintiffs.
After a verbal motion to reconsider was denied, the instant petition was filed with
the Supreme Court, which ruled: “There is no legal impediment for a party to call any
of the adverse
_______________
Ibid., p. 245.
72
94 SCRA 907.
73
386
parties to be his witness, as clearly provided in Section 10 and 11 Rule 132 of the
Rules of Court which in essence provides:
“A party may interrogate any unwilling or hostile witness by leading questions. A party may
call an adverse party or an officer, director, or managing agent of a public or private
corporation or of a partnership or association which is an adverse party, and interrogate him
by leading questions and contradict and impeach him in all respects as if he had been called
by the adverse party, and the witness thus called may be contradicted and impeached by or
on behalf of the adverse party also, and maybe cross-examined by the adverse party only
upon the subject-matter of his examination in chief.”
While the constitutional guaranty against self-incrimination protects a person in
all types of cases, be they criminal, civil, or administrative, said privilege, in
proceedings other than a criminal case against him who invokes it, is considered an
option to refuse to answer incriminating question, and not a prohibition of inquiry x
xx.
In this case, petitioner invoked the privilege even prior to any question being
propounded, and simply declined to take the witness stand. It will be noted that the
privilege against self-incrimination must be invoked when a question calling for an
incriminating answer is propounded, because before a question is asked, there would
be no way of telling whether the information to be elicited from the witness is self-
incriminating or not. Moreover, the petitioner was being directed to take the stand,
not in a criminal case where he is an accused but in civil action. This is expressly
permitted by Section 6, Rule 132 of the Rules of Court which authorizes a party to
call any adverse party as his witness.”
The Supreme Court concluded by saying that the instant petition to prohibit the
judges from directing the petitioner to take the witness stand and testify is denied
without prejudice to petitioner’s properly invoking the guaranty against self-
incrimination when questions are propounded to him on the stand.
The second example is the case of Gonzales vs. Secretary of Labor, et. al., when 74
the Supreme Court held:

_______________
L-6409 February 5, 1954 cited by Justice Teehankee, in Bagadiong vs. Gonzales, Supra.
74
387
VOL.189, SEPTEMBER 10, 1990 387
“Except in criminal cases, there is no rule prohibiting a party litigant from utilizing his
adversary as a witness. As a matter of fact, Section 3 of Rule 132, Rules of Court, expressly
authorized a party to call an adverse party to the witness stand and interrogate him. This
rule is of course, subject to the constitutional injunction not to compel any person to testify
against himself. But it is established that the privilege against self-incrimination must be
at the proper time, and the proper time to invoke it is when a question calling for a
criminating answer is propounded. This has to be so because before a question is asked there
would be no way of telling whether the information to be elicited from the witness is self-
incriminating or not.”
In another case of Suarez vs. Tengco, the Supreme Court held:
75
“Here the petitioner invoked the privilege even prior to any question, and simply declined to
take the witness stand. Note that in the Gonzales case, supra, the adverse party was directed
to take the witness stand in proceedings to investigate an alleged failure to pay overtime
compensation, which, under corresponding special laws, carries a penal sanction. Here,
petitioner was being directed to take the stand, not in a criminal case where he is an accused,
but in an independent civil action which, although arising from the same facts invoked in a
criminal case pending before the same court, is still regarded by law as an entirely separate
and distinct action, governed by a corresponding different set of rules.” (Civil Code of the
Philippines, Article 2177)
§D. Statutory Immunity to Satisfy Constitutional Guarantee Against Self-
Incrimination
No statute can deprive a witness of his constitutional privilege against self-
incrimination unless it affords him absolute immunity from prosecution for the
offense to which incriminating questions relate. 76
The exemption provided by the Bill of Rights that no person shall be compelled
from being a witness against himself “can
_______________
2 SCRA 71.
75
14 Am. Jur., op.cit., p. 871.

76
388
not be claimed by a witness when by the terms of a statute the immunity afforded is
co-extensive with the constitutional privilege of silence.
A witness can not invoke the self-incrimination privilege, if legal immunity from
criminal prosecution has been conferred upon him by immunity statute; and he may
be prosecuted for contempt for refusal to testify, because once the reason for the
privilege ceases, the privilege itself ceases. The immunity statute must grant
complete and not partial immunity against criminal prosecutions.
In the case of Knapp vs. Schweitzer, 357 U.S. 371, a witness who was granted
immunity be a state against state prosecution may be compelled to testify in a state
proceeding and cannot invoke the federal privilege against self-incrimination. 77
§E. Rationale For The Immunity From Self-Incrimination

The constitution provides that no person shall be compelled in any criminal case to
be a witness against himself. This is due to the abhorrence with which confessions
coerced by inquisitorial torture were regarded in all civilized countries. The right is
not merely a formal technical rule, which may be enforced or dispensed with at the
discretion of the courts. It is a mandatory, constitutional provision, securing to every
defendant a valuable and substantial right. 78
The reason for its inclusion in the constitution and the necessities for its
preservation are to be found in the lessons of history, such as Inquisition proceedings.
It is privilege of great value, a protection to the innocent though a shelter to the
guilty, and a safeguard against heedless, unfounded, or tyrannical prosecutions. In
Regan vs. New York, Justice Black stated that the privilege against self-
incrimination is one of the great landmarks in man’s struggle to make himself
civilized. 79
It was a favorite maxim of the common law that no man

_______________

78 14 Am. Jur. Section 144, p. 369.
79 Francisco, 1963 ed. Criminal Procedure, op.cit., p. 392.
389
VOL.189, SEPTEMBER 10, 1990 389
should be compelled to incriminate himself, nemo tenetur seipsum accusare. The rule
was established both on grounds of public policy and of humanity-of policy because it
would place the witness under the strongest temptation to commit perjury, and of
humanity, because it would prevent the extortion of confession by a kind of duress
every species and degree of which the law abhors.
The Supreme Court has held that “the prohibition against self-incrimination is
intended to prevent in a positive manner the repetition of cases whereby a person in
a criminal proceeding or proceedings of different nature is with inhuman result
obliged to furnish the necessary damaging evidence against himself. If such evidence
is necessary, the same should be secured from other sources; and if it is desired that
it should be taken from the party concerned, he must be promised or assured that he
should at least be given absolute immunity by those who could legally do so, he may
likewise be required to do so voluntarily without any condition whatsoever.
The right against self-incrimination is not merely a formal technical rule the
enforcement of which is left to the discretion of the court; “it is mandatory; it secures
to a defendant a valuable and substantive right; and it is fundamental in our scheme
of justice.
The constitutional provisions on the privilege against self-incrimination are
sound and moral for the reason that self-incriminating testimonies are inadmissible
in evidence. It is based on the principles of liberty, justice and fairplay. The
constitutional foundation underlying the privilege against self-incrimination is the
respect a government must accord to the dignity and integrity of its citizens. It is
based on public policy and humanity; public policy because the accused is placed
under the strongest temptation to commit perjury; and humanity because it would
prevent the extortion of confession by duress.
According to Justice Hugo Gutierrez, Jr., an accused cannot be convicted solely on
the evidence which came from his own mouth or was produced by his own hands. The
evidence must come from other sources. It would be at the height of unfairness and
contrary to due process if a man is required to state what he knows even if it would
incriminate him. “The accused should not be fried by his own fat”, said one of the
learned jurists of one
390
time. As the common saying goes: “No sane man will burn his own shirt nor will he
get a stone to hit his own head: “Dean Griswold of Harvard Law School even said:
“The privilege against self-incrimination is one of the great landmarks in man’s struggles
to make himself civilized ... we do not make even the most hardened criminal sign his own
death warrant, or dig his own grave ... We have through the course of history develop a
considerable feeling of the dignity and intrinsic importance of the individual man. Even the
evil man is a human being.”
Finally, as Justice Laurel said,
“Self-incrimination is tantamount to forcing the accused to furnish the means for his own
destruction.”
———o0o———
391

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ANNOTATION

It is generally held that crimes must be penalized and wrongdoing must be

1. 1.In the case of Savory Luncheonette vs. Lakas ng Manggagawang Pilipino,

Atty. Morabe, the witness of the petitioner to be cross-examined succumbed to a heart

1. § I.The Miranda Doctrine, p. 637

§ I. The Miranda Doctrine

*Member, Board of Editorial Consultants, Supreme Court Reports Annotated (SCRA).

1. A—A Valid Complaint or Information, p. 701

1. 1.Primary Basis of the Defense of Double Jeopardy, p. 702

1. B—Court Must Have Jurisdiction To Try the Case, p. 703

1. § VI.Identity of Offense, p. 706

1. A—Tests of Identity of Offense, p. 706

1. § VII.Time to Raise Question of Double Jeopardy, p. 711

1Section 21, Article III, 1987 Constitution.

§ II. The Rule of Double Jeopardy

Lanza, 260 U.S. 377; Melo vs. People, 85 Phil. 768.

§ III. Nature and Scope

6 Article VIII, Section 5(5), 1987 Constitution.

Bao, 106 Phil. 243.

court’s erroneous belief of lack of jurisdiction or of the necessity of a sworn complaint

11 People vs. Bringas, 70 Phil. 528.

12 People vs. Arinso, 52 O.G. 5483.

13 People vs. Ravil, 104 Phil. 1043.

15 People vs. Ursua, 60 Phil. 252.

16 United States vs. Hecry, 25 Phil. 600.

The defense of double jeopardy is available in criminal prosecution only. So, it

17 People vs. Doria, 55 SCRA 435.

20 Republic vs. Robero (259 Pieces of Jewelry), 89 Phil. 333.

§ IV. Requisites of Double Jeopardy

§ V. When Conditions for Jeopardy Attach

21 Ada vs. Virola, 172 SCRA 336.

If an information or complaint is dismissed and the accused discharged on a

However, where a complaint is fatally defective either in form or in substance, no

1. Primary Basis of the Defense of Double Jeopardy

B —Court Must Have Jurisdiction To Try the Case

the fiscal when by reason of its nature, as in cases of rape or seduction, it

36 United States vs. Jayme, supra.

A plea of double jeopardy cannot be sustained upon the ground alleged by

Oandasan, 25 SCRA 277; Arula vs. Espino, 28 Phil. 540.

40 People vs. Bellosillo, 9 SCRA 835.

C —Plea After Arraignment

43 United States vs. Regala, supra.

45 United States vs. Montiel, 7 Phil. 272.

46 People vs. Ylagan, supra; People vs. Malayao, 1 SCRA 628.

47 Section 12 (1), Article III, 1987 Constitution.

D —Conviction, Acquittal or Dismissal

VI. Identity of Offense

22 C.J.S. Section 218, p. 402.

50 People vs. Salico, supra.

51 Tolentino vs. De la Costa, 66 Phil. 97.

the peril of second

B —Exceptions to the Test of Identity

138; Severin vs. People, 37 Ill. 414.

59 People vs. Bacolod, 89 Phil. 621.

60 233 SCRA 702.

62 Section 7, par. 2, Rule 117, Revised Rules of Court.

65 People vs. Tarok, 73 Phil. 260; People vs. Manolong, supra.

69 107 Phil. 712.

§ VII. Time to Raise Question of Double Jeopardy

1. § 1.Constitutional Provisions, p. 690

1. (3)Any confession or admission obtained in violation of this or Section 17 hereof

Under the foregoing provisions a person under custodial investigation is entitled to

§ 3. Objectives of the Right to be Informed