000 Washington v. Texas (UMANDAP) prosecuted for the same offense.
12 June 1967 | Warren, C.J. | Right to Compulsory Process DOCTRINE: The nature of the Texas law at issue denied the petitioner in
PETITIONER: Jackie Washington
RESPONDENTS: The State of Texas
SUMMARY: Following a jury trial, Jackie Washington was convicted of
murder and sentenced to 50 years in prison. At trial, Washington alleged that
Charles Fuller, already convicted for the same murder, actually shot the
victim while Washington attempted to stop the shooting. Washington
claimed that Fuller would testify to these facts, but the prosecution objected
based on a state statute that prevented persons charged in the same crime
from testifying on behalf of one another. Washington argued that refusing to
allow Fuller to testify violated his Sixth Amendment right to compulsory
process for obtaining a witness in his favor. The Texas Court of Criminal
Appeals affirmed the conviction.
Whether or not Washington was denied the right to have compulsory process
for obtaining witnesses in his favor? YES
The right to compulsory process was violated because petitioner was
arbitrarily denied the right to put on the stand a witness who was physically
and mentally capable of testifying to events that he had personally observed,
and whose testimony would have been relevant and material to the defense.
The rule disqualifying an alleged accomplice from testifying on behalf of the
defendant cannot even be defended on the ground that it rationally sets apart
a group of persons who are particularly likely to commit perjury. The
absurdity of the rule is amply demonstrated by the exceptions that have been
made to it.
For example, the accused accomplice may be called by the prosecution to
testify against the defendant. Common sense would suggest that he often has
a greater interest in lying in favor of the prosecution, rather than against it,
especially if he is still awaiting his own trial or sentencing. To think that
criminals will lie to save their fellows but not to obtain favors from the
prosecution for themselves is indeed to clothe the criminal class with more
nobility than one might expect to find in the public at large. Moreover, under
the Texas statutes, the accused accomplice is no longer disqualified if he is
acquitted at his own trial. Presumably, he would then be free to testify on
behalf of his comrade, secure in the knowledge that he could incriminate
himself as freely as he liked in his testimony, since he could not again be
this case the right for a fair trial using witnesses who could testify to
"relevant and material" facts in the case. Here, while not entirely relying on
the finding, the Court saw the law as "arbitrary" because its discrimination
between the prosecution and defense served "no rational relationship" to any
goal of preventing perjury. Further, the idea that a "competent" witness was
barred from testifying, in and of itself, was held to be an unconstitutional
predetermination on the part of the state legislature.
FACTS:
1.   Petitioner, Jackie Washington (Washington), was convicted in Dallas
County, Texas, of murder with malice, and was sentenced by a jury
to 50 years in prison. The prosecution's evidence showed that
Washington, an 18-year-old youth, had dated a girl named Jean
Carter until her mother had forbidden her to see him. The girl
thereafter began dating another boy, the deceased. Evidently
motivated by jealousy, Washington with several other boys began
driving around the City of Dallas looking for a gun.
2.   The search eventually led to one Charles Fuller, who joined the
group with his shotgun. After obtaining some shells from another
source, the group of boys proceeded to Jean Carter's home, where
Jean, her family and the deceased were having supper. Some of the
boys threw bricks at the house and then ran back to the car, leaving
Washington and Fuller alone in front of the house with the shotgun.
At the sound of the bricks, the deceased and Jean Carter's mother
rushed out on the porch to investigate. The shotgun was fired by
either Washington or Fuller, and the deceased was fatally wounded.
Shortly afterward, Washington and Fuller came running back to the
car, where the other boys waited, with Fuller carrying the shotgun.
3.   Washington testified in his own behalf. He claimed that Fuller, who
was intoxicated, had taken the gun from him, and that he had
unsuccessfully tried to persuade Fuller to leave before the shooting.
Fuller had insisted that he was going to shoot someone, and
Washington had run back to the automobile. He saw the girl's mother
come out of the door as he began running, and he subsequently heard
the shot. At the time, he had thought that Fuller had shot the woman.
In support of his version of the facts, Washington offered the
testimony of Fuller. The record indicates that Fuller would have
 testified that Washington pulled at him and tried to persuade him to
leave, and that Washington ran before Fuller fired the fatal shot.
4.   It is undisputed that Fuller's testimony would have been relevant and
material, and that it was vital to the defense. Fuller was the only
person other than Washington who knew exactly who had fired the
shotgun and whether Washington had, at the last minute, attempted
to prevent the shooting. Fuller, however, had been previously
convicted of the same murder and sentenced to 50 years in prison,
and he was confined in the Dallas County jail. Two Texas statutes
provided at the time of the trial in this case that persons charged or
convicted as co-participants in the same crime could not testify for
one another, although there was no bar to their testifying for the
State.
ISSUE:
1.   Whether or not Washington was denied the right to have compulsory
process for obtaining witnesses in his favor? YES — Washington
was denied his right to have compulsory process for obtaining
witnesses in his favor because the State arbitrarily denied him the
right to put on the stand a witness who was physically and mentally
capable of testifying to events that he had personally observed, and
whose testimony would have been relevant and material to the
defense.
RULING: The judgment of conviction must be reversed. It is so ordered.
RATIO:
Issue 1
1.   The right to offer the testimony of witnesses, and to compel their
attendance, if necessary, is in plain terms the right to present a
defense, the right to present the defendant's version of the facts as
well as the prosecution's to the jury, so it may decide where the truth
lies. Just as an accused has the right to confront the prosecution's
witnesses for the purpose of challenging their testimony, he has the
right to present his own witnesses to establish a defense. This right is
a fundamental element of due process of law.
2.   Since the right to compulsory process is applicable in this state
proceeding, the question remains whether it was violated in the
circumstances of this case. The testimony of Charles Fuller was
denied to the defense not because the State refused to compel his
attendance, but because a state statute made his testimony
inadmissible whether he was present in the courtroom or not. We are
thus called upon to decide whether the Sixth Amendment guarantees
a defendant the right under any circumstances to put his witnesses on
the stand, as well as the right to compel their attendance in court. The
resolution of this question requires some discussion of the common
law context in which the Sixth Amendment was adopted.
3.   It was thought that, if two persons charged with the same crime were
allowed to testify on behalf of each other, "each would try to swear
the other out of the charge." This rule, as well as the other
disqualifications for interest, rested on the unstated premises that the
right to present witnesses was subordinate to the court's interest in
preventing perjury, and that erroneous decisions were best avoided
by preventing the jury from hearing any testimony that might be
perjured, even if it were the only testimony available on a crucial
issue.
4.   The federal courts followed the common law restrictions for a time,
despite the Sixth Amendment. This was not satisfactory to later
generations, however, and, in 1918, this Court expressly overruled
it, refusing to be bound by "the dead hand of the common law rule of
1789," and taking note of "the conviction of our time that the truth is
more likely to be arrived at by hearing the testimony of all persons of
competent understanding who may seem to have knowledge of the
facts involved in a case, leaving the credit and weight of such
testimony to be determined by the jury or by the court. . . ."
5.   Although decisions on this matter rested on non-constitutional
grounds, we believe that its reasoning was required by the Sixth
Amendment. In light of the common law history, and in view of the
recognition in the Reid case that the Sixth Amendment was designed
in part to make the testimony of a defendant's witnesses admissible
on his behalf in court, it could hardly be argued that a State would at
violate the clause if it made all defense testimony inadmissible as a
matter of procedural law. It is difficult to see how the Constitution is
any less violated by arbitrary rules that prevent whole categories of
defense witnesses from testifying on the basis of a priori categories
that presume them unworthy of belief.
6.   The rule disqualifying an alleged accomplice from testifying on
behalf of the defendant cannot even be defended on the ground that it
rationally sets apart a group of persons who are particularly likely to
commit perjury. The absurdity of the rule is amply demonstrated by
the exceptions that have been made to it. For example, the accused
 accomplice may be called by the prosecution to testify against the
defendant. Common sense would suggest that he often has a greater
interest in lying in favor of the prosecution, rather than against it,
especially if he is still awaiting his own trial or sentencing. To think
that criminals will lie to save their fellows but not to obtain favors
from the prosecution for themselves is indeed to clothe the criminal
class with more nobility than one might expect to find in the public
at large. Moreover, under the Texas statutes, the accused accomplice
is no longer disqualified if he is acquitted at his own trial.
Presumably, he would then be free to testify on behalf of his
comrade, secure in the knowledge that he could incriminate himself
as freely as he liked in his testimony, since he could not again be
prosecuted for the same offense. The Texas law leaves him free to
testify when he has a great incentive to perjury, and bars his
testimony in situations where he has a lesser motive to lie.
7.   We hold that Washington was denied his right to have compulsory
process for obtaining witnesses in his favor because the State
arbitrarily denied him the right to put on the stand a witness who was
physically and mentally capable of testifying to events that he had
personally observed, and whose testimony would have been relevant
and material to the defense. The Framers of the Constitution did not
intend to commit the futile act of giving to a defendant the right to
secure the attendance of witnesses whose testimony he had no right
to use.
 042 US v. Looper (VALLE)
12 December 1969 | Winter, J. | Testimonial Evidence
PETITIONER: United States of America
RESPONDENTS: Robert Lee Looper
SUMMARY:
Looper is a member of the Radio Church of God who was convicted of failure to
submit to induction. He raised numerous grounds on his appeal but the court will
consider one ground which is whether or not Looper could be permitted to testify
in his own defense because he refused on account of his religious beliefs. He
said that he cannot say the oath as it has God’s name in it and when the judge
offered that Looper can put his hand on the Bible and hold up his right hand to
appeal to God, Looper still said no. So the judge declined to let him testify.
The issue is whether or not Looper should have been allowed to testify. Yes, he
should have as the right to testify is a constitutional right and may not be denied
to Looper if he elects to exercise it. The privilege to testify may not be denied
just because Looper would not accede to a form of oath or affirmation which
isn’t required by law.
DOCTRINE:
If his religion made repugnant or impossible to him an appeal to God or the
raising of a hand as part of an oath or affirmation (and in this regard, his
statement was to be believed), all the district judge need do is to make inquiry as
to what form of oath or affirmation would not offend defendant's religious
beliefs but would give rise to a duty to speak the truth.
FACTS:
5.   Looper is a member of the Radio Church of God who was convicted of
failure to submit to induction into the armed forces of the US in violation of
law. He raises numerous grounds on which he claims that the judgment of
the district court should be reversed.
6.   We reach and consider only one ground—the ruling that Lopper not be
permitted to testify in his own defense because he refused on account of his
religious beliefs to take the oath or affirmation prescribed by the court. The
court found error in the ruling, they reversed and awarded a new trial.
7.   At the conclusion of the government's case, and after denial of a motion for
acquittal, Looper’s counsel advised the court that Looper had two
witnesses, of which Looper was one.
8.   In response to this statement, the district judge directed that both be
brought forward and sworn simultaneously. The transcript shows that "the
Clerk administered the affirmation at the request of the witnesses." Its text
is not set forth.
9.   Looper immediately replied, "I can't do that," and when told by the district
judge, "you're going to take an oath or affirm," Looper answered, "I can't if
it has God's name in it. If you ask me if I'll tell the truth, I can say that."
10.   The district judge rejected Looper’s offer because this isn’t the oath and a
discussion between the district judge and counsel ensued. Finally, the
district judge said that Looper could put his hand on the Bible and hold up
his right hand and appeal to God.
11.   Looper said that he can’t hold up his hand. The district judge declined to let
him testify.
ISSUE/s:
8.   WoN Looper should have been allowed to testify for himself – YES,
because the right to testify is a constitutional right and it may not be denied
to a defendant if , being advised, he elects to exercise it. Looper’s privilege
to testify may not be denied him solely because he would not accede to a
form of oath or affirmation not required by common law.
RULING: Reversed and remanded, new trial granted.
RATIO:
9.   The ancient incompetency of a defendant to testify in his own behalf has
been completely altered in the modern era. The right to testify has been
described as a constitutional right. ertainly, in a federal court, it is not less
than a statutory right, and it may not be denied a defendant if, being
advised, he elects to exercise it.
10.   The taking of testimony of all witnesses in a criminal case, including the
exercise of the privilege by a defendant, is governed by Rule 26,
F.R.Crim.P.
11.   This rule states that, except when an act of Congress or the criminal rules
otherwise provide, "[t]he admissibility of evidence and the competency and
privileges of witnesses shall be governed * * * by the principles of the
common law as they may be interpreted by the courts of the United States
in the light of reason and experience."
12.   Wigmore states that the modern theory of a witness' oath is the subjective
one of impressing on his conscience the necessity for speaking the truth.
"[I]t follows that the form of the administration of the oath is immaterial,
provided that it involves, in the mind of the witness, the bringing to bear of
this apprehension of punishment.
13.   The district judge committed reversible error. In common law, as well as
the rules, requires neither an appeal to God nor the raising of a hand as a
prerequisite to a valid oath. All that law requires is a form or statement
which impresses upon the mind and conscience of a witness the necessity
for telling the truth.
14.   Looper’s privilege to testify may not be denied him solely because ehe
would not accede to a form of oath or affirmation not required by
common law.
15.   If his religion made repugnant or impossible to him an appeal to God or the
raising of a hand as part of an oath or affirmation (and in this regard, his
statement was to be believed), all the district judge need do is to make
inquiry as to what form of oath or affirmation would not offend
defendant's religious beliefs but would give rise to a duty to speak the
truth.
16.   The district judge could qualify defendant to testify in any form which
stated or symbolized that defendant would tell the truth and which, under
defendant's religious beliefs, purported to impress on him the necessity for
so doing
 043 PEOPLE v. GOLILIM (Vargas)
02April 2004 | Carpio Morales, J. | Qualifications/Disqualifications of
Witnesses
PETITIONER: People of the Philippines
RESPONDENTS: Salvador Golilim aka Badong
SUMMARY: Evelyn is a mental retardate. When her mother went abroad to
work, Evelyn was left to the are and custody of her auntie Jovita and uncle
Badong. Sometime in August 1996, auntie Jovita left the residence leaving
Evelyn with uncle Badong. Taking advantage of the situation, uncle Badong
had sexual intercourse with Evelyn while holding a knife. Evelyn told Auntie
Jovita about what happened but auntie just scolded her. Sometime in
December 1996, Lorna came to Sorsogon to take Evelyn with her back to
Manila. Lorna thereafter noticed Evelyn’s growing belly. Upon check-up and
ultrasound examination, it was confirmed that Evelyn was pregnant. Lorna
asked how Evelyn became pregnant and Evelyn told her about the incident.
Lorna then assisted Evelyn in filing a criminal complaint against Uncle
Badong. Uncle Badong, on being confronted with the accusation, simply said
that it is not true because her mind is not normal, she having mentioned
many other names of men who had sexual intercourse with her. The trial
court ruled in favor of Evelyn. Hence, this appeal.
The issue is Whether or not Evelyn’s mental retardation disqualifies her as a
witness nor renders her testimony bereft of truth. The Court ruled in the
negative saying that a mental retardate can be a witness, depending on his or
her ability to relate what he or she knows. If his or her testimony is coherent,
the same is admissible in court. As provided in the Rules (Sec. 21, Rule 130),
a person is disqualified to be a witness if his/her mental condition, at the time
of their production for examination, is such that they are incapable of
intelligently making known their perception to others. Such is not the case
here.
By the account of Dr. Belmonte, Medical Specialist who examined Evelyn,
although Evelyn was suffering from moderate mental retardation with an IQ
of 46, she is capable of perceiving and relating events which happened to
her. Evelyn could give spontaneous and consistent answers to the same but
differently framed questions under conditions which do not inhibit her from
answering. It could have been in this light that Evelyn was able to relate in
court, upon examination by a female government prosecutor and the
exclusion of the public from the proceedings, on Dr. Belmonte’s suggestion,
how she was raped and that it was appellant who did it.
DOCTRINE: A mental retardate or a feebleminded person is not, per se,
disqualified from being a witness, her mental condition not being a vitiation
of her credibility. It is now universally accepted that intellectual weakness,
no matter what form it assumes, is not a valid objection to the competency of
a witness so long as the latter can still give a fairly intelligent and reasonable
narrative of the matter testified to.
FACTS:
12.   Parties: [because according to sir, it’s best to see them as characters]
Evelyn – victim
Mama Amparo – mother
Lorna – sister of the victim
Auntie Jovita – sister of the mother
Uncle Badong – husband of Auntie Jovita
13.   Evelyn is a mental retardate. When Mama amparo left for Singapore
to work as a domestic helper, Evelyn was left to the care and custody
of her Auntie Jovita and Uncle Badong in Sorsogon.
14.   Sometime in August 1996, Auntie Jovita left the conjugal residence
leaving Evelyn with Uncle Badong. Taking advantage of the
situation, Uncle Badong told instructed Evelyn to sleep and soon
after she had laid down, he kissed her and took of her clothers. As he
poked at her an object which to Evelyn felt like a knife, he proceeded
to insert his penis into her vagina. His lust satisfied, Uncle Badong
fell asleep.
15.   When Auntie Jovita arrived, Evelyn told her about what happened.
Auntie Jovita, however, did not believe he and in fact scolded her. L
16.   Sometime in December 1996, Lorna, upon instructions of Mama
Amparo, went to Sorsogon and brought Evelyn with her to Manila. A
week after she brought Evelyn to stay with her, Lorna suspected that
Evelyn was pregnant as she noticed her growing belly. Upon check-
up and ultrasound examination, it was confirmed that Evelyn was
indeed pregnant.
17.   Lorna asked Evelyn how she became pregnant, to which Evelyn
 replied that Uncle Badong had sexual intercourse with her while
holding a knife. Lorna assisted Evelyn in filing a complaint for rape
against uncle Badong.
18.   Uncle Badong, on being confronted with the accusation, simply said
that it is not true because her mind is not normal, she having
mentioned many other names of men who had sexual intercourse
with her.
19.   The trial court ruled in favor of Evelyn. Hence, the present appeal.
Uncle Badong argues that Evelyn’s testimony is not categorical and
is replete with contradictions, thus engendering grave doubts as to
his criminal culpability.
20.   In giving credence to Evelyn’s testimony, the trial court made the
following observations:
a.   Despite Evelyn’s weak and dull mental state, she was consistent in her
claim that Uncle Badong had carnal knowledge of her and was the author
of her pregnancy;
b.   She was consistent that Uncle Badong raped her only once;
c.   That the contradictory statements she made in open court relative to the
details of how she was raped, although would seem derogatory to her
credibility and reliability as a witness under normal conditions, were
amply explained by the psychiatrist who examined her and supported by
her findings;
d.   Despite her claim that several persons laid on top of her (which is still
subject to question considering that the victim could not elaborate on its
meaning), the lucid fact remains that she never pointed to anybody else as
the author of her pregnancy, but Uncle Badong. Which only shows that the
trauma that was created in her mind by the incident has remained printed
in her memory despite her weak mental state. Furthermore, granting for
the sake of argument that other men also laid on top of her, this does not
deviate from the fact that her Papay Badong (the accused) had sexual
intercourse with her.
ISSUE:
Whether or not Evelyn’s mental retardation disqualifies her as a witness nor
renders her testimony bereft of truth — NO. A mental retardate can be a
witness, depending on his or her ability to relate what he or she knows. If his
or her testimony is coherent, the same is admissible in court.
RULING: WHEREFORE, the assailed Decision of the Regional Trial
Court of Sorsogon, Sorsogon, Branch 65 in Criminal Case No. 241 finding
appellant, Salvador Golimlim alias "Badong," GUILTY beyond reasonable
doubt of rape, which this Court finds to have been committed under
paragraph 1, Article 335 of the Revised Penal Code, and holding him civilly
liable therefor, is hereby AFFIRMED.
RATIO:
1.   Sections 20 and 21 of Rule 130 of the Revised Rules of Court
provide:
SEC. 20. Witnesses; their qualifications. – Except as provided in the next
succeeding section, all persons who can perceive, and perceiving, can make known
their perception to others, may be witnesses.
SEC. 21. Disqualification by reason of mental incapacity or immaturity. – The
following persons cannot be witnesses:
(a) Those whose mental condition, at the time of their production for examination, is
such that they are incapable of intelligently making known their perception to
others;
(b) Children whose mental maturity is such as to render them incapable of
perceiving the facts respecting which they are examined and of relating them
truthfully.
2.   In People v. Trelles, this Court held that a mental retardate or a
feebleminded person is not, per se, disqualified from being a witness,
her mental condition not being a vitiation of her credibility. It is now
universally accepted that intellectual weakness, no matter what form
it assumes, is not a valid objection to the competency of a witness so
long as the latter can still give a fairly intelligent and reasonable
narrative of the matter testified to.
3.   It can not then be gainsaid that a mental retardate can be a witness,
depending on his or her ability to relate what he or she knows. If his
or her testimony is coherent, the same is admissible in court.
4.   To be sure, modern rules on evidence have downgraded mental
incapacity as a ground to disqualify a witness. As observed by
 McCormick, the remedy of excluding such a witness who may be the
only person available who knows the facts, seems inept and
primitive. Our rules follow the modern trend of evidence. Thus, in a
long line of cases, this Court has upheld the conviction of the
accused based mainly on statements given in court by the victim who
was a mental retardate.
Information, was adequately proven. It bears stating herein that the
mental faculties of a retardate being different from those of a normal
person, the degree of force needed to overwhelm him or her is less.
Hence, a quantum of force which may not suffice when the victim is
a normal person, may be more than enough when employed against
an imbecile.

5.   From a meticulous scrutiny of the records of this case, there is no

reason to doubt Evelyn’s credibility. To be sure, her testimony is not
without discrepancies, given of course her feeblemindedness.

6.   By the account of Dr. Chona Cuyos-Belmonte, Medical Specialist

II at the Psychiatric Department of the Bicol Medical Center,
who examined Evelyn, although Evelyn was suffering from
moderate mental retardation with an IQ of 46, she is capable of
perceiving and relating events which happened to her.

7.   Evelyn could give spontaneous and consistent answers to the same

but differently framed questions under conditions which do not
inhibit her from answering. It could have been in this light that
Evelyn was able to relate in court, upon examination by a female
government prosecutor and the exclusion of the public from the
proceedings, on Dr. Belmonte’s suggestion, how she was raped and
that it was appellant who did it.

8.   Uncle Badong’s bare denial is not only an inherently weak defense.

It is not supported by clear and convincing evidence. It cannot thus
prevail over the positive declaration of Evelyn who convincingly
identified him as her rapist.

9.   It is settled that sexual intercourse with a woman who is a mental

retardate constitutes statutory rape which does not require proof that
the accused used force or intimidation in having carnal knowledge of
the victim for conviction.

10.   The fact of Evelyn’s mental retardation was not, however, alleged in
the Information and, therefore, cannot be the basis for conviction.
Such notwithstanding, that force and intimidation attended the
commission of the crime, the mode of commission alleged in the
 044 PEOPLE v. CAÑETE (VICENCIO)
March 28, 2003 | Callejo Sr., J. | Rule 130, Secs. 20-24
FACTS:
PETITIONER: People of the Philippines
RESPONDENTS: Kakingcio Cañete
SUMMARY: Accused Kakingcio was the uncle of the private complainant Alma
(12 years old). Alma and her father Paquito (a blind had been living with the
Kakingcio and his family off and on for years. On the night of Feb. 1, 1996, in her
uncle's residence, Alma was awakened by her half-naked uncle Kakingcio who
poked a knife on her neck and subsequently raped her. In the evening of February 3,
when Kakingcio tried to violate her again, she ran to a neighbor, Ka Caring, divulged
to her that the Kakingcio tried to rape her anew and sought her help. Kakingcio was
then charged with rape. The RTC found Kakingcio guilty. Kakingcio appealed
claiming inconsistencies in Alma's testimony regarding how Kakingcio raped her
with his shorts on. When the prosecution tried to elicit from the Alma how
Kakingcio's penis could have been inserted into her vagina with his pants still on and
his counsel objected to the question, the presiding judge himself took the cudgels for
the prosecution and propounded questions on Alma. Kakingcio claimed that the
judge was biased towards the prosecution. The judge also asked leading questions.
Issue: WoN the examination conducted by the judge was valid, and hence
Kakingcio's conviction should be upheld - YES. The Court finds nothing improper in
the questions posed by the trial court. Neither are the questions prejudicial to the
appellant or suggestive of any partiality of the trial court. Although crudely and
ungrammatically phrased, the question of the public prosecutor "where did he let his
penis exit considering that he is then wearing a short pants" was not leading.
The trial court should have overruled the objection and allowed the private
complainant to answer the question. However, the trial court was not precluded from
asking questions to avoid further wrangling between the public prosecutor and the
Kakingcio’s counsel which may frightened or unnerved the private complainant
Alma, a minor and who was unused to judicial proceedings. After all, the trial court
was mandated to discover the truth. (Read doctrine)
DOCTRINE: Wnder Sections 19 to 21 of the Rule on Examination of a Child
Witness which took effect on December 15, 2000, child witnesses may testify in a
narrative form and leading questions may be allowed by the trial court in all stages of
the examination if the same will further the interest of justice. Objections to
questions should be couched in a manner so as not to mislead, confuse, frighten and
intimidate the child:
Sec. 19. Mode of questioning. — The court shall exercise control over the
questioning of children so as to (1) facilitate the ascertainment of the truth, (2) ensure
that questions are stated in a form appropriate to the developmental level of the child,
(3) protect children from harassment or undue embarrassment, and (4) avoid waste of
time.
1.   The spouses Paquito Cañete and Sedaria Cañete had three children, one of
whom was Alma. In 1986, the spouses decided to live separately.
2.   Sedaria resided in Biliran, with some of her children by Paquito. The latter
(Paquito) decided to live in Basey, Samar, and brought Alma with him.
3.   Thereafter, Paquito decided to live with his older brother, Kakingcio
Cañete, and the latter’s common-law wife, Alejandra Cañete, whom Alma
called Yaya Alejandra, and their two children, five and four years old,
respectively, in Leyte.
4.   After some years, Paquito and Alma decided to return to and live in Basey,
Samar. In the meantime, Paquito became blind and a paralytic. In January
1996, Kakingcio (his brother) had Paquito and Alma fetched from Basey,
Samar, and brought to Leyte, to live with him and his family.
5.   By then, Alma was already twelve years old. She noticed that her uncle
Kakingcio was nice and amiable to her.
6.   On February 1, 1996, Alejandra visited her daughter in Montebello,
Kananga, Leyte, leaving behind Kakingcio and their two young children
and Paquito and Alma.
7.   At about 8:00 p.m., Alma was already asleep. Paquito was sleeping near her
feet. The house was dark. Momentarily, Alma was awakened when she felt
someone caressing her.
8.   When she opened her eyes, she saw her uncle Kakingcio who was wearing
a pair of short pants but naked from waist up. He was beside her with his
left palm touching her forehead, down to her face, hand and feet. She could
smell liquor from his breath.
9.   He poked an 8-inch long knife on her neck and whispered to her: "Ma, don’t
tell your yaya because I will do something to you." Kakingcio then removed
his short pants, lifted her skirt and pulled down her panties. He threatened to
kill her if she made a sound. Alma was terrified.
10.   Kakingcio then inserted his private organ into Alma’s vagina and made a
push and pull movement of his body. Alma felt pain in her private part and
could do nothing but cry as Kakingcio ravished her. In the process, Alma
lost consciousness.
11.   When she regained consciousness, it was already 6:00 in the morning of
February 2, 1996. She was weak and could hardly stand up. She noticed
blood in her vagina. By then, Kakingcio had already left the house. Alma
could do nothing but cry.
12.   Kakingcio arrived back home after lunch time. Alma hid from her uncle.
13.   On February 3, 1996, at 8:00 in the evening, Alma was asleep in the sala of
their house. She was awakened when she felt her pants being pulled down.
She was aghast when she saw Kakingcio beside her pulling down her pants.
She resisted and ran out of the house to escape from Kakingcio.
14.   She rushed to the house of a neighbor Ka Caring to whom Alma revealed
that her uncle raped her and that he was about to rape her again. Caring
 adviced Alma not to return to their house. Alma slept in the house of
Caring. Alma returned to their house the next day, February 4, 1996. By
then, Kakingcio was no longer in the house.
15.   On February 5, 1996, Alejandra went up the hill to gather camote tops. She
was then armed with a bolo. Alma followed Alejandra to the hills and
revealed to her that Kakingcio raped her on February 1, 1996. Alejandra
was livid with rage. She rushed back to the house and confronted Kakingcio
with the charge of Alma. Alejandra and Kakingcio quarreled. She berated
him for having taken advantage of his own flesh and blood. She told him to
leave the house.
16.   Kakingcio agreed on the condition that he would bring his personal
belongings with him. After Kakingcio left, Alejandra accompanied Alma to
the barangay captain and complained against Kakingcio. The Barangay
Captain wrote a letter to the local police authorities requesting assistance to
Alejandra and Alma.
17.   On February 9, 1996, Dra. Bibiana A. Cardente, the Municipal Health
Officer of Capoocan, Leyte, examined Alma.
18.   On April 26, 1996, an Information was filed with the Regional Trial Court
of Leyte, Branch 36, charging Kakingcio with rape.
19.   DEFENSE: Kakingcio, assisted by counsel, pleaded not guilty to the crime
charged.
1.   When he testified, Kakingcio denied having sexually assaulted Alma. He
interposed the defense of alibi. He claimed that he was a farmer. He
planted root crops such as banana. On February 1, 1996, he went to the
house of Romulo Lukaba about three kilometers from his house, for the
purpose of accompanying and helping Rolly Lukaba, the son of Romulo,
gather coconuts in the coconut plantation of Romulo in the mountains.
2.   It took Kakingcio thirty minutes to reach the place. At about 9:00 in the
evening, Kakingcio, Rolly and Romulo drank tuba. By 10:00 in the
evening, Rolly and Kakingcio went to sleep. Romulo, however, left the
two. The next day, Rolly and Kakingcio went back to the mountains and
gathered coconuts.
20.   The RTC found Kakingcio guilty beyond reasonable doubt of rape and
imposed upon him the penalty of death in view of the presence of the
special qualifying circumstance of the minority of private complainant
Alma and her relationship to Kakingcio and the special aggravating
circumstance of use of a deadly weapon and without any mitigating
circumstance in the commission of the crime.
21.   Kakingcio avers that the prosecution had a difficulty proving that the
appellant raped the private complainant in light of her testimony that when
the appellant Kakingcio mounted her, he still had his short pants on.
22.   When the prosecution tried to elicit from the offended party how
Kakingcio’s penis could have been inserted into her vagina with his pants
still on and the Kakingcio’s counsel objected to the question, the presiding
judge himself took the cudgels for the prosecution and propounded
questions on the private complainant.
23.   Worse, the presiding judge posed leading questions to the private
complainant. The presiding judge was biased and partial to the prosecution.
24.   Kakingcio further stresses that when Alma was raped it was nighttime and
the place where she was molested was dark. She could not have recognized
and identified the appellant as her rapist. Furthermore, Alma failed to report
the rape immediately to the police authorities.
ISSUE/s:
1.   WoN the examination conducted by the judge was valid and hence the
conviction should be upheld – YES, the trial court was not precluded from
asking questions to avoid further wrangling between the public prosecutor
and the Kakingcio’s counsel which may frightened or unnerved the private
complainant Alma, a minor and who was unused to judicial proceedings.
RULING: IN LIGHT OF ALL THE FOREGOING, the Decision of the Regional Trial
Court of Leyte, Branch 36, in Criminal Case No. 2523, is hereby AFFIRMED WITH
MODIFICATION. The appellant KAKINGCIO CAETE is found guilty beyond reasonable
doubt, as principal, of simple rape under Article 335 of the Revised Penal Code, as amended,
and is meted the penalty of reclusion perpetua, and ordered to pay to private complainant
Alma Caete the amounts of P50,000 as civil indemnity, P50,000 as moral damages and
P25,000 as exemplary damages
RATIO:
1.   The Court does not agree with the Kakingcio’s submission. In People v.
Ancheta: this Court emphasized that a presiding judge enjoys a great deal of
latitude in examining witnesses within the course of evidentiary rules. The
presiding judge should see to it that a testimony should not be incomplete or
obscure. After all, the judge is the arbiter and he must be in a position to
satisfy himself as to the respective claims of the parties in the criminal
proceedings.
2.   In People v. Zheng Bai Hui, this Court reiterated that:
1.   In any case, a severe examination by a trial judge of some of the witness
for the defense in an effort to develop the truth and to get at the real facts
affords no justification for a charge that he has assisted the prosecution
with an evident desire to secure a conviction, or that he had intimidated
the witnesses for the defense.
2.   The trial judge must be accorded a reasonable leeway in putting such
questions to witnesses as may be essential to elicit relevant facts to make
the record speak the truth.
3.   Trial judges in this jurisdiction are judges of both the law and the facts,
and they would be negligent in the performance of their duties if they
permitted a miscarriage of justice as a result of a failure to propound a
proper question to a witness which might develop some material bearing
upon the outcome.
4.   In the exercise of sound discretion, he may put such question to the
witness as will enable him to formulate a sound opinion as to the ability or
the willingness of the witness to tell the truth.
5.   A judge may examine or cross-examine a witness. He may propound
clarificatory questions to test the credibility of the witness and to extract
 the truth. He may seek to draw out relevant and material testimony though
that testimony may tend to support or rebut the position taken by one or
the other party.
6.   It cannot be taken against him if the clarificatory questions he propounds
happen to reveal certain truths which tend to destroy the theory of one
party.
3.   Note: See end of the digest (Annex 1) for the direct-examination.
4.   The Court finds nothing improper in the questions posed by the trial
court. Neither are the questions prejudicial to the appellant or
suggestive of any partiality of the trial court.
5.   It bears stressing that from the testimony of the private complainant,
Kakingcio was wearing his short pants before he mounted her and even
when he was already on top of her and managed to penetrate her sexual
organ with his penis.
6.   The public prosecutor wanted the private complainant to explain to the
court how the appellant could have inserted his penis into her vagina
considering that he was still wearing his short pants.
7.   Although crudely and ungrammatically phrased, the question of the
public prosecutor "where did he let his penis exit considering that he is
then wearing a short pants" was not leading.
8.   The trial court should have overruled the objection and allowed the
private complainant to answer the question.
9.   However, the trial court was not precluded from asking questions to
avoid further wrangling between the public prosecutor and the
appellant’s counsel which may frightened or unnerved the private
complainant, a minor and who was unused to judicial proceedings.
After all, the trial court was mandated to discover the truth.
10.   As it turned out, the private complainant cried profusely as she testified
impelling the trial court to order a continuance. Even the counsel of
Kakingcio agreed to a continuance.
11.   Parenthetically, under Sections 19 to 21 of the Rule on Examination of
a Child Witness which took effect on December 15, 2000, child
witnesses may testify in a narrative form and leading questions may be
allowed by the trial court in all stages of the examination if the same
will further the interest of justice.
12.   Objections to questions should be couched in a manner so as not to
mislead, confuse, frighten and intimidate the child:
Sec. 19. Mode of questioning. — The court shall exercise
control over the questioning of children so as to (1) facilitate
the ascertainment of the truth, (2) ensure that questions are
stated in a form appropriate to the developmental level of the
child, (3) protect children from harassment or undue
embarrassment, and (4) avoid waste of time.
13.   The court may allow the child witness to testify in a narrative form.
14.   While it may be true that it was dark when Kakincio ravished the private
complainant (Alma) in his house, it cannot, however, be gainsaid that the
private complainant could have sufficiently identified Kakingcio as the
culprit.
15.   The appellant Kakingcio was the uncle of the private complainant. She and
her father Paquito had been living with the appellant and his family off and
on for years before she and her father were brought back with appellant in
January 1996 to Capoocan, Leyte, to live anew with the appellant and his
family.
16.   The private complainant was thus familiar not only with the physical build
of the appellant (Kakincio) but also with his voice and peculiar smell. A
person may be identified by these factors. Once a person has gained
familiarity with another, identification is quite an easy task.
17.   In this case, the appellant Kakincio poked a knife on her neck and
whispered to the private complainant before she raped her: "Ma, ayaw
pagsumat kan imo yaya kay may-ada ako ha imo bubuhaton" (Ma, don’t tell
to your yaya because I will do something to you." "Ma" was the nickname
of Alma, the private complainant. "Yaya" was Alejandra Cañete, the
common-law wife of Kakingcio.
18.   Moreover, as testified to by the private complainant, the only persons left in
the house in the evening of February 1, 1997 were Kakincio and his two
younc children, Pacquito, who was blind and an invalid, and Alma.
19.   When Alejandra Cañete confronted the appellant Kakingcio on February 5,
1997, with the claim of the private complainant that he raped the latter and
demanded that the appellant leave the house, the appellant did not deny the
charge and even agreed to leave the house on condition that he be allowed
to take his personal belongings with him.
20.   The credibility of the private complainant Alma was not degraded by her
and Alejandra Cañete’s reporting the sexual assault to the police authorities
only on February 5, 1996.
21.   The evidence shows that the private complainant was only twelve years old
when she was raped by the appellant. She and her father, who was
completely blind and a paralytic, were living in the house of Kakincio.
22.   The latter threatened to kill her if she revealed what he did to her. It was
thus easy for the appellant to fulfill the threat if she divulged the violation
of her honor.
23.   In People v. Bea, this Court held that it is not uncommon for a young girl at
the tender age of sixteen years to be intimidated into silence and conceal the
sexual assault on her by the appellant
24.   When cross-examined by the public prosecutor, the appellant Kakingcio
unabashedly admitted that he did not know any improper or ill-motive on
the part of the private complainant for charging him with rape, and on the
part of his wife Alejandra Cañete for reporting the sexual assault on the
private complainant by the appellant to the police authorities.
25.   Accused failed to attribute any ill motive on the part of the victim to testify
falsely and impute against him the commission of a grave offense such as
rape. To the contrary, the trial court observed that the victim lived in place
 "more rural than most rural villages" in the country, and was still ATTY. DILOY:
It was being worn by the accused!
"unaffected by the worldly ways of urban life."
PROS. PERIDA:
26.   It is highly inconceivable for a young barrio lass, inexperienced with the Let the witness answer that Your Honor!
ways of the world, to fabricate a charge of defloration, undergo a medical ATTY. DILOY:
examination of her private parts, subject herself to public trial, and tarnish We submit Your Honor!
COURT:
her family’s honor and reputation unless she was motivated by a potent Q What were your uncle, when your uncle placed himself on top of your body as you said, in
desire to seek justice for the wrong committed against her. a prone position, was he wearing clothes or none?
27.   In contrast to the positive and straightforward testimony of the private A He was still wearing Your Honor.
complainant, the appellant Kakingcio’s denial of the charge, which is Q What clothes?
A Short pants Your Honor.
merely a negative self-serving evidence, cannot prevail.
Proceed Fiscal!
28.   Equally undeserving of merit is his defense of alibi. Appellant Kakingcio PROS. PERIDA:
failed to prove with clear and convincing evidence that it was physically Q So, after he laid himself over you with his trouser, what else happened?
impossible for him to have been in his house at the time when the private A His penis was inserted into my vagina sir.
Q Where did he let his penis exit considering that he is then wearing a short pants?
complainant was raped. ATTY. DILOY:
29.   The only evidence adduced by the appellant to prove alibi was his own Objection Your Honor! It is leading!
testimony. By his own admission, the appellant’s house was barely a thirty- COURT:
minute walk to the house of Romulo Lukaba. It was thus not physically Q How did he manage to have his penis inserted to your vagina?
A No sir, because when he placed himself on top of me he pulled down his shorts and
impossible for the appellant to have been in his house at 8:00 in the evening
thereafter he inserted his penis into my vagina.
of February 1, 1996, when the private complainant was raped. Q At that time what was your apparel going up from your vagina?
A I was wearing then a T-shirt and skirt sir.
Annex 1: Q About your skirt?
A He pulled up my skirt sir.
In this case, the relevant direct-examination questions posed by the public prosecutor of the private
Q What about your t-shirt?
complainant and her corresponding answers, the objections thereto by the appellants counsel and the
A He did not do anything about my t-shirt.
questions propounded by the trial court were as follows:
Q After placing his penis on your vagina, what else transpired?
Q After taking off your panty or underware (sic) what else transpired? A He keeps on kissing me sir.
A He placed himself on top of me sir. Q At that time he keeps on kissing you, where was his penis in relation to your vagina?
Q Please describe to us your uncle at that moment when he placed himself over your body! A It was inside my vagina sir.
A He placed himself on top of me in a prone position. Q While his penis was inside your vagina and the accused keeps on kissing you what else
Q What was he wearing at that time when he was carressing (sic) your face down to your transpired?
arm? A (witness weeping in tears as been directly examined by the Public Prosecutor).
A He was just wearing a short pants sir. COURT:
Q What about the upper portion of his body? Place it of record that the child witness is crying in the witness stand!
A None sir. PROS. PERIDA:
Q At the time he put himself over you on a prone position, what about his short pants, was it May we ask for suspension Your Honor! I move for suspension considering the condition of
still there? the victim witness Your Honor! Hes already crying!
ATTY. DILOY: COURT:
We request Your Honor that the question not be made in a leading manner! We can come back tomorrow.
COURT:
Place of record the comment!
PROS. PERIDA:
I withdraw that Your Honor!
Q Where was the short pants which your uncle originally wearing that time?
ATTY. DILOY:
He was wearing it Your Honor as described by the witness!
PROS. PERIDA:
At this moment now, when he was already on top of the victim!
ATTY. DILOY:
It was answered by the witness! According to the witness, accused was wearing short pants
but the upper part of his body the accused had nothing worn!
PROS. PERIDA:
That is agreed Your Honor. Now my question is, at the time Kakingcio Caete was already on
top of Alma where was this short pants!
 045 PEOPLE v. ZHENG BAI HUI (Yap)
22 August 2000 | Kapunan, J. | Testimonial Evidence; Quali. of Witnesses
PETITIONER: People of the Philippines
RESPONDENTS: Zheng Bai Hui @ Carlos Tan Ty and Nelson Hong Ty @
Sao Yu
SUMMARY: “Carlos” and “Nelson” were Chinese nationals sentenced
sentenced to suffer the death penalty pursuant to their conviction for selling
methamphetamine hydrochloride (shabu). The prosecution’s version of the
facts is that their informant, Stardust, told them that Carlos and Nelson were
alleged drug pushers. They executed a buy-bust operation outsider Mercury
Drug Store in Monumento, Caloocan. The confiscated samples were tested
and resulted to 992.3 grams of shabu. The defense’s version is that they
were in the logging/wood business and they were to meet a client in
Monumento. After leaving their red Toyota in the parking lot, they were
accosted by men in civilian attire and shoved into a red Nissan Sentra then
allegedly brought to a hotel where the men tried to extort PHP500,000 from
them using a Chinese translator. The trial court convicted them for violation
of §15 of the Comprehensive Dangerous Drugs Act (use of 200g or more of
shabu), and sentenced them to the death penalty thereby warranting this
automatic review by the SC. The defense’s main contention is that the trial
court judge (female) erred in giving credence to a witness’ (policeman
Bacani’s) testimony (which formed part of the prosecution’s version) since
Bacani was not sworn into oath during his testimony. It appears that, in one
of the subsequent trials, when Bacani was put on the witness stand by the
prosecution, the defense lawyer objected and reminded the court that he was
not finished cross-examining a witness during the previous trial day.
However, that witness was not currently in court so they judge allowed the
prosecution to proceed with Bacani’s testimony.
The pertinent issue is whether Bacani is a qualified witness.
The SC ruled, in this case particularly, in the affirmative. First, the test in the
Langford and Hawks (US) cases, which provide that “knowledge or want of
knowledge of the lack of oath is the true test,” would open the door to fraud
since any party can claim want of knowledge of the defect before verdict is
rendered. The better test would be whether he had the opportunity to know
the lack of oath. If a party ought to have known of the lack of oath but did
not object thereto, he cannot later be heard raising such an objection.
Second, Carlos and his counsel were present at the hearing when Bacani was
presented as witness. They did not, however, object to the lack of oath.
Neither did they pose any objection when Bacani continued his testimony in
the next trial day, even though the defense lawyer cross-examined Bacani.
Third, nevertheless, Bacani’s testimony is dispensable since it was merely
corroborative of those of the other policemen. Lastly, however, the death
penalty is not imposable as there were no aggravating circumstances in this
case. Hence, only reclusion perpetua.
ISSUE 2 – Whether appellants were denied their right to an impartial and
disinterested tribunal. NO – because the judge’s questions were warranted by
her observation that the witness never looked at the persons propounding the
questions, an “averted gaze” which denotes fabrication.
ISSUE 3 – Whether the refusal of the trial judge to allow disclosure of the
identity of the informer deprived them of their right to cross-examine her.
NO – because it was for the informant’s protection, and the defendants failed
to discharge their burden of proving necessity of disclosure.
ISSUE 4 – Whether appellants are guilty beyond reasonable doutbt. YES –
because the elements of (1) identity of the buyer and the seller, the object,
and the consideration and (2) the delivery of the thing sold and the payment
therefor were proven by testimonies.
ISSUE 5 – Whether the death penalty should be imposed upon appellants.
NO – because there were no aggravating circumstences present.
DOCTRINE: If a party ought to have known of the lack of oath but did not
object thereto, he cannot later be heard raising such an objection.
FACTS:
21.   “Carlos” and “Nelson” were Chinese nationals sentenced to suffer
the death penalty pursuant to their conviction for selling
methamphetamine hydrochloride (shabu).
22.   Versions of the ultimate facts:
Prosecution Defense
A police informant called Carlos was in the logging business
“Stardust” informed the police and was supposed to meet a
about 2 Chinese nationals who were customer in Monumento, tagging
alleged drug pushers. A buy-bust Nelson along with him. When they
operation was conducted – the arrived in Monumento, he parked d.   The trial court erred in imposing the death penalty.
poser called Carlos and said that he his red Toyota in front of the e.   The failure of Officer Bacani (one of whose testimonies
was willing to buy shabu if Carlos Prudential Bank, and a boy offered was used to piece-up the prosecution’s version of the
had any stock (‘di ba instigation to clean the car, which was facts) to take an oath before he testified deprived the
‘to?!). They met outside the accepted. They were then taken by accused of their right to due process.
Mercury Drug Store in Monumento men in civilian attire and shoved i.   It appears that, in one of the subsequent trials, when
later that afternoon. The poser told them into a red Nissan Sentra, and Bacani was put on the witness stand by the
Carlos and Nelson that he had the taken to a hotel and they were prosecution, the defense lawyer objected and
money with him, and the latter asked PHP500,000 in exchange for reminded the court that he was not finished cross-
handed a blue SM plastic bag. their safety, but they didn’t have examining a witness during the previous trial day.
Hence, they arrested them and such amount. They were brought to However, that witness was not currently in court so
brought them to Camp Crame. A Carlos’ house and then his wife they judge allowed the prosecution to proceed with
laboratory test was conducted and it went out to borrow money from Bacani’s testimony.
was concluded that the sample was friends. When the police did not
positive for shabu. return Carlos, the wife went to ISSUE/s:
Camp Crame.
2.   Whether the failure of a prosecution witness to take his oath
invalidates the proceedings before the trial court. IT DEPENDS
23.   The witness for the prosecution, a senior inspector, testified that he — If the opposing party OUGHT TO TO HAVE KNOWN of the
met Stardust in the place where she worked nightly. He revealed that lack of oath but did not object thereto, he cannot later be heard
Stardust was neither a drug pusher nor user, and did not have any raising such an objection. Here, the defense failed to object
arrest record. Her name was not, however, divulged. despite having the chance to.
24.   The following defense (hostile) witnesses were also presented by the 3.   Whether appellants were denied their right to an impartial and
prosecution: disinterested tribunal. NO – because the judge’s questions were
a.   SPO3 Santos – testified that the serial number money used in warranted by her observation that the witness never looked at the
the buy-bust operation were not recorded in their police persons propounding the questions, an “averted gaze” which denotes
book, since their superior said it was no longer necessary; fabrication.
that they did not conduct a test-buy or surveillance to 4.   Whether the refusal of the trial judge to allow disclosure of the
determine the veracity of Stardust’s information. identity of the informer deprived them of their right to cross-examine
b.   Leslie Maala (lab exam) – testified that she was asked to her. NO – because it was for the informant’s protection, and the
perform a quality test (Simons Test and Marquis’ Test), not a defendants failed to discharge their burden of proving necessity of
quantity test. Hence, they are not designed to determine the disclosure.
purity of the specimen. 5.   Whether appellants are guilty beyond reasonable doutbt. YES –
25.   The trial court convicted the accused and sentenced them to death because the elements of (1) identity of the buyer and the seller, the
penalty, warranting this automatic review by the SC. object, and the consideration and (2) the delivery of the thing sold
26.   In this appeal, the appellants argue that: and the payment therefor were proven by testimonies.
a.   The trial court erred in not affording them cold neutrality; 6.   Whether the death penalty should be imposed upon appellants. NO –
b.   The trial court erred in giving credence to the buy-bust story because there were no aggravating circumstences present.
despite hallmarks of fabrication, and in concluding that they
were cought in flagrante delicto; RULING: WHEREFORE, Carlos and Nelso are GUILTY beyond
c.   The trial court erred in convicting them on the basis of reasonable doubt, and sentenced to suffer the penalty of RECLUSION
evidence of the prosecution, arguing that they were the PERPETUA.
victims of police instigation, entitling them to acquittal.

RATIO:
Bacani’s qualification as witness is sustained since the lack of oath was not
objected to by the defense despite having several chances to
17.   The SC disagreed on appellant’s reliance on Langford v. US (it is the
duty of the party calling the witness to see that he is sworn; if the
omission was known at that time, the defense cannot ask for a new
trial; if discovered after trial, the defense may).
a.   Langford cites Hawks v. Baker which provides that
knowledge or want of knowledge is the true test.
b.   However, the SC ruled that such test would open the door to
fraud since any party can claim want of knowledge of the
defect before verdict is rendered.
18.   The better test would be whether he had the opportunity to know
the lack of oath. If a party ought to have known of the lack of
oath but did not object thereto, he cannot later be heard raising
such an objection.
19.   Here, Carlos and his counsel were present at the hearing when
Bacani was presented as witness. They did not, however, object to
the lack of oath. Neither did they pose any objection when Bacani
continued his testimony in the next trial day, even though the defense
lawyer cross-examined Bacani.
20.   Nevertheless, Bacani’s testimony is dispensable since it was merely
corroborative of those of the other policemen.
The trial judge demonstrated nothing more than an unwavering quest for
the truth and a rightful intolerance for impertinence, fully cognizant of her
duties and of the scope of her discretion
21.   The trial judge did not “actively assume the role of the prosecutor”
when she propounded questions to the defense witnesses.
a.   There was no “badgering” as even the judge observed that
the witness never looked at any of the persons propounding
the questions.
b.   The “averted gaze,” in our culture, is a telltale sign of
prevarication, and the witness’s demeanor no doubt raise
suspicions in the judge’s mind that his testimony may be a
fabrication.
22.   The trial judge, in propounding questions to the witnesses, in
overruling ungrounded objections and disallowing improper
questions by the defense, did not exhibit any bias against the
accused.
Appellants failed to show the need for disclosure of Stardust’s identity
23.   The defense in this case did not renew their request for the
production of the informer’s identity. Nor did they advise the trial
court of their defense or the relevancy of such disclosure when they
demanded the production of Stardust’s identity.
24.   When one office was put on the stand, there was no hint that the
accused was going to raise frame-up, extortion, and instigation as
defenses. The accused had not yet testified; neither had his wife. The
defense did not raise the question of the informer’s identity again
after the witnesses testified.
25.   The burden of showing the need for disclosure is upon defendants.
Suh necessity depends upon the particular circumstances of each
case, taking into consideration the crime charged, the possible
defenses, and the possible significance of the infromer’s testimony,
and other relevant factos.
26.   Here, appellants did not develop any such criteria with reference to
the merits of this case.
The crime (the sale of regulated drugs), and not only the conspiracy to sell
the same was actually committed
27.   The elements are (1) identity of the buyer and the seller, the object,
and the consideration and (2) the delivery of the thing sold and the
payment therefor. The testimonies adequately established these
elements. The SC has no reason to doubt the assessment of the trial
court regarding the credibility of the witnesses.
28.   Conspiracy was proven since Carlos met with the poser-buyer and it
was Nelson who received the marked money.
No aggravating circumstance attended the commission of the crime, hence
appellants can only be sentenced to reclusion perpetua
29.   The sale of 200 or more grams of methamphetamine hydrochloride, a
regulated drug, is punishable by reclusion perpetua to death, and a
fine ranging from PHP500,000 to PHP10,000,000.
30.   Here, 992.3 grams were seized. If the prosecution proves that the
sample is positive for shabu, it can be presumed that the entire
substance seized is all shabu. The burden of proof shifts to the
 accused to prove otherwise.
31.   Hence, this falls under the 200g or more provision. There being no
aggravating circumstance, only reclusion perpetua shall be imposed.
 046 SUNGA-CHAN v. CHUA (YARTE)
15 August 2001 | Gonzaga-Reyes, J. | Qualification of Witness
PETITIONER: Lilibeth Sunga-Chan and Cecilia Sunga
RESPONDENTS: Lamberto T. Chua
SUMMARY: Lamberto Chua (Chua) filed a complaint against Lilibeth and
Cecilia Sunga (the Sungas), daughter and wife of deceased Jacinto Sunga
(Jacinto) for winding up of partnership affairs, accounting, and damages.
Chua alleged that he verbally entered into a partnership with Jacinto for the
distribution of Shellane LPG. The business-named “Shellite”-was registered
under the name of Jacinto. When Jacinto died, his wife and daughter took
over the operations of the business without the consent of Chua. Chua
repeatedly demanded from the Sungas to make an accounting of the assets
and income and to wind up the partnership. Eventually, the Sungas gave in to
his demand and gave a partial payment of Php 200,000.00 representing his
share in the partnership. To support his claims, Chua presented Josephine
(assistant manager of Shellite and Chua’s sister-in-law) as a witness. After
trial, the court ruled in favor of Chua and directed the Sungas to render an
accounting & winding up of the partnership. The issue in the SC is WoN
the Dead Man’s Statute applies to this case. The court denied the petition.
It ruled that the Dead Man’s Statute was inapplicable because the Sungas
effectively removed the case from the ambit of the Dead Man’s Statute
when they filed a compulsory counterclaim against Chua in their answer
before the trial court. The rule is that upon filing of a counterclaim by the
executor or administrator or representatives of the estate, the plaintiff may
testify to occurrences before the death of the deceased to defeat the
counterclaim (si Chua pwede na daw magtestify tungkol sa mga nangyari
bago mamatay si Jacinto). Furthermore, the court does not believe that
Josephine’s testimony lacks probative value because she was allegedly
coerced by Chua, her brother-in-law, to testify in his favor. The fact that
Josephine is the sister of Chua’s wife does not diminish the value of her
testimony since relationship per se, without more, does not affect the
credibility of witnesses.
Minor issues addressed by the court were the existence of the
partnership and prescription of action. The court ruled that there was a
partnership eventhough it was based on a verbal agreement.
Furthermore, the action has not prescribed.
DOCTRINE: The fact that Josephine is the sister of Chua’s wife does not
diminish the value of her testimony since relationship per se, without more,
does not affect the credibility of witnesses.
FACTS:
27.   Lamberto Chua (Chua) filed a complaint against Lilibeth Sunga-
Chan (Lilibeth) and Cecilia Sunga (Cecilia), daughter and wife of
deceased Jacinto Sunga (Jacinto). The complaint was for the winding
up of partnership affairs, accounting, appraisal, and recovery of
shares and damages.
28.   Chua alleged that he verbally entered into a partnership with Jacinto
in the distribution of Shellane Liquefied Petroleum Gas (LPG) in
Manila and adopted the business name “Shellite”.
29.   The business was registered under the name of Jacinto as sole
proprietor.
30.   Jacinto updated Chua with the merchandise inventories, balance
sheets and net worth of Shellite from 1977 to 1989, however, Chua
suspected that the amount indicated in these documents were
understated and undervalued by Jacinto and Josephine (assistant
manager of Shellite) for their own selfish reasons and for tax
avoidance.
31.   Upon Jacinto’s death, Cecilia and Lilibeth (the Sungas) took over the
operations, control, custody, disposition and management of Shellite
without Chua’s consent.
32.   Chua made repeated demands to the Sungas to wind up the
partnership, but they failed to comply.
33.   Eventually, Lilibeth made partial payment Php 200,000.00 to Chua.
However, no other payments were made and no accounting of assets
was made by the Sungas.
34.   Josephine (assistant manager of Shellite and Chua’s sister-in-law)
was presented by Chua as his witness.
35.   The Chans filed a motion to dismiss on the ground that the Securities
and Exchange Commission (SEC) had jurisdiction of the case. This
motion was dismissed by the court.
36.   The trial court ruled in favor of Chua and directed the Sungas to
render an accounting & winding up of the partnership, return the
properties and income that they misappropriated, and give Chua his
share of the assets with interest.
ISSUE/s:
7.   WoN there was a partnership between Chua and Jacinto YES — A
partnership may be constituted in any form and it was the intention
of the parties to create a partnership.
8.   WoN the Dead Man’s Statute applies to this case to render
inadmissible the testimony of Chua and his witness. NO — By filing
 a compulsory counterclaim, the Sungas removed the case from the
ambit of the Deadman’s Statute.
9.   WoN laches and/or prescription applies to this case. NO — The case
was filed within the prescriptive period.
RULING: WHEREFORE , in view of the foregoing, the petition is DENIED
and the appealed decision is AFFIRMED.
RATIO:
A partnership was created between the parties
32.   A partnership may be constituted in any form, except where
immovable property or real rights are contributed thereto, in which
case a public instrument shall be necessary.
33.   Based from the facts of this case, the intention of Chua and Jacinto
was to create a partnership, although such was based on a verbal
contract.
34.   In view of the absence of a written contract of partnership, Chua
resorted to the introduction of documentary and testimonial evidence
to prove said partnership.
Dead Man’s Statute Inapplicable
35.   The Dead Man’s Statute provides that if one party to the alleged
transaction is precluded from testifying by death, insanity, or other
mental disabilities, the surviving party is not entitled to the undue
advantage of giving his own uncontradicted and unexplained account
of the transaction.
36.   Before this rule can be successfully invoked to bar the introduction
of testimonial evidence, it is necessary that:
a.   The witness is a party or assignor of a party to a case or
persons in whose behalf a case is prosecuted.
b.   The action is against an executor or administrator or other
representative of a deceased person or a person of unsound
mind;
c.   The subject-matter of the action is a claim or demand against
the estate of such deceased person or against person of
unsound mind;
d.   His testimony refers to any matter of fact which occurred
before the death of such deceased person or before such
person became of unsound mind.
37.   However, the dead man’s statute cannot be applied to this case for
the following reasons:
a.   First, the Sungas filed a compulsory counterclaim against
Chua in their answer before the trial court, and with the
filing of their counterclaim, the Sungas effectively removed
this case from the ambit of the Dead Man’s Statute.
a.1. The rules provide that when the executor or
administrator or representatives of the estate sets up the
counterclaim, the plaintiff (si Chua), may testify to
occurrences before the death of the deceased to defeat
the counterclaim.
b.   Second, the testimony of Josephine is not covered by the
Dead Man’s Statute because she is not a party or assignor of
a party to a case or persons in whose behalf a case is
prosecuted. Chua offered the testimony of Josephine to
establish the existence of the partnership.
38.   Furthermore, the court was not convinced by the Sungas’ allegation
that Josephine’s testimony lacks probative value because she was
allegedly coerced by Chua, her brother-in-law, to testify in his favor.
39.   Josephine merely declared in court that she was requested by Chua to
testify and that if she was not requested to do so, she would not have
testified.
40.   There is no reason to conclude from this candid admission that
Josephine’s testimony is involuntary when she did not in any way
categorically say that she was forced to be a witness of Chua.
41.   Also, the fact that Josephine is the sister of Chua’s wife does not
diminish the value of her testimony since relationship per se, without
more, does not affect the credibility of witnesses.
Laches and Prescription
42.   Laches and prescription does not apply to this case.
43.   The action for accounting filed by Chua three (3) years after
Jacinto’s death was well within the prescribed period. The Civil
Code provides that an action to enforce an oral contract prescribes in
six (6) years.
44.   Considering that the death of a partner results in the dissolution of
the partnership, in this case, it was after Jacinto’s death that Chua
had the right to an account of his interest as against petitioners.
 001 SANSON v. CA (ADRIAS)
22 April 2003 | Carpio Morales, J. | Rule 130, Sec. 23 ; Dead Man’s Statute
PETITIONER-APPELLANTS: Felicito G. Sanson, Celedonia
Sanson-Saquin, Angeles A. Montinola, Eduardo A. Montinola, Jr.
RESPONDENTS-APPELLEES: Honorable Court Of Appeals,
Fourth Division And Melecia T. Sy, As Administratrix Of The
Intestate Estate Of The Late Juan Bon Fing Sy
SUMMARY: Felicito Sanson (Felicito) filed a special proceeding for
the settlement of the estate of Juan Bon Fing Sy (the deceased). Juan
Sy was indebted to Felicito (Php 603,000), Celedonia (Php 360,000),
Eduardo (Php 50,000) and Angeles (Php 150,000) evidenced by
several checks. Iloilo RTC appointed Melecia Sy, surviving spouse of
the deceased, as administratrix of Juan Sy’s estate. Demand letters
were sent to the heirs of the deceased but the checks remained
unsettled. Melecia Sy denied having knowledge of the checks and that
if ever they existed, they had been paid and extinguished, are usurious
and illegal and are barred by prescription. She also objected to the
admission of the checks offered in evidence upon the ground that the
witnesses who testified are disqualified under the Dead Man’s Statute
(Sec. 23, Rule 130). RTC ruled in favor of Felicito et al. CA reversed.
The issues in this case are:
1) WoN the CA erred in finding that the testimony of Jade is
insufficient to prove the claims of Eduardo and Angeles? YES
SIGNATURE: The Court ruled that relationship to a party has never
been recognized as an adverse factor in determining either the
credibility of the witness or—subject only to well recognized
exceptions none of which is here present—the admissibility of the
testimony. At most, closeness of relationship to a party, or bias, may
indicate the need for a little more caution in the assessment of a
witness’ testimony but is not necessarily a negative element, which
should be taken as diminishing the credit otherwise accorded to it.
DEAD MAN’S STATUTE: Does not apply. The rule renders
incompetent: (1) Parties to a case; (2) Their assignors or; (3) Persons
in whose behalf a case is prosecuted. This is an exclusive list. Jade is
not a party to the case. Neither is she an assignor nor a person in
whose behalf the case is being prosecuted. She testified as a witness to
the transaction.
2) WoN the erred in finding that the testimony of Felicito is insufficient
to prove the claims of Celedonia and vice versa? YES
SIGNATURE: Both Felecito and Celedonia testified that they “know”
the signature of the deceased. While the testimonies of the siblings did
not faithfully discharge the quantum of proof under Section 22, Rule
1321, Administratrix Melecia failed to controvert the same.
DEAD MAN’S STATUTE: Does not apply. Felecito and Celedonia’s
claims against the same estate arose from the separate transactions.
Felecito is a third party with respect to Celedonia’s claim and vice
versa. They are not disqualified to testify on the other’s transaction. In
any event, what the Dead Man’s Statute proscribes is the admission
of testimonial evidence upon a claim, which arose before the death
of the deceased. The incompetency is confined to the giving of
testimony.
Nevertheless, the claims of Felicito et are all supported by checks-
documentary evidence, their claims can be prosecuted on the bases of
said checks. A comparison of the signature of the deceased Juan Sy on
all the checks appear to have been affixed by one and the same hand
and were drawn from the same account. The burden of evidence has
now shifted to Melecia Sy, who expressly dispensed with the
presentation of evidence against the claims. Hence, intestate estate of
Juan Sy must pay Felicitas et al.
DOCTRINE: DEAD MAN’S STATUTE: Proscribes the admission
of testimonial evidence upon a claim, which arose before the death of the
deceased. The incompetency is confined to the giving of testimony.The rule
renders incompetent: (1) Parties to a case; (2) Their assignors or; (3) Persons
in whose behalf a case is prosecuted from testifying as to any matter of fact
occurring before the death of the deceased person. This is an exclusive list.
FACTS:
1 Section 22. How genuineness of handwriting proved. – The handwriting of a person may be proved by
any witness who believes it to be the handwriting of such person because he has seen the person write, or
has seen writing purporting to be his upon which the witness has acted or been charged and has thus
acquired knowledge of the handwriting of such person.
 1.   Felicito Sanson (Felicito) filed a special proceeding for the
settlement of the estate of Juan Bon Fing Sy (the deceased) in
the RTC of Iloilo City.
2.   Felicito claimed that the deceased was indebted to him in the
amount of Php 603, 000.00 and to his sister Celedonia Sanson-
Saquin (Celedonia) in the amount of Php 360,000.00.
3.   Other petitioners, Eduardo Montinola (Eduardo) and his
mother Angeles Montinola (Angeles) filed separate claims
against the estate alleging that the deceased owed them Php
50,000 and Php 150, 000, respectively.
4.   Iloilo RTC appointed Melecia Sy, surviving spouse of the
deceased, as administratrix of Juan Sy’s estate.
5.   Melecia Sy as administratrix invoked Sec. 23, Rule 130 aka the
Dead Man’s Statute2.
6.   During the trial, Felecito and Celedonia testified in support of
each other’s claims:
a.   That they had transaction with the deceased evidenced
by six and five checks issued by the deceased before he
died.
b.   Before he died, Celedonia tried to settle the checks
from Jerry Sy (son of Juan Sy), who told her that his
father would settle them once he got well.
c.   After his death, Felicito and Caledonia presented the
checks to the bank for payment but were dishonored
due to the closure of the account.
7.   Jade Montinola (wife of Eduardo) testified in support of
Eduardo and Angeles’ claims:
a.   That they had transaction with the deceased evidenced
by three and two checks issued by the deceased before
he died.
2 SEC. 23. Disqualification by reason of death or insanity of adverse party.—Parties or assignors of
parties to a case, or persons in whose behalf a case is prosecuted, against an executor or administrator or
other representative of a deceased person, or against a person of unsound mind, upon a claim or demand
against the estate of such deceased person or against such person of unsound mind, cannot testify as to any
matter of fact occurring before the death of such deceased person or before such person became of
unsound mind.
b.   Before Juan Sy died, they advised him that they would
be depositing the checks, but he told them not to as he
would pay them cash.
c.   After his death, Eduardo and Angeles presented the
checks to the bank for payment but were dishonored
due to the closure of the account.
8.   Demand letters were sent to the heirs of the deceased but the
checks remained unsettled.
9.   Melecia Sy, the administratrix:
a.   Denied having knowledge of the checks and that if ever
they existed, they had been paid and extinguished, are
usurious and illegal and are barred by prescription.
b.   Objected to the admission of the checks offered in
evidence upon the ground that the witnesses who
testified are disqualified under the Dead Man’s Statute.
i.   Checks identified by Jade are inadmissible
because Jade is the daughter-in-law of Angles
and wife of Eduardo, hence, she is covered by
the rule on disqualification.
10.  RTC: Ruled in favor Felicito et al.
a.   Dead Man Statute does not apply to the witnesses.
b.   Administratrix ordered to pay Felicito et al.
11.  CA: Reversed and set aside the ruling of the RTC and ruled in
favor of Melecia Sy.
ISSUE/s:
10.  WoN the CA erred in finding that the testimony of Jade is
insufficient to prove the claims of Eduardo and Angeles? YES,
she was present when the decedent Juan Sy signed the checks
and the dead man’s statute does not apply in this case.
11.  WoN the erred in finding that the testimony of Felicito is
insufficient to prove the claims of Celedonia and vice versa?
YES, both have knowledge of the signature of the decedent and
the dead man’s statute does not apply.
RULING: WHEREFORE, the impugned May 31, 1996 Decision of
the Court of Appeals is hereby SET ASIDE and another rendered
ordering the intestate estate of the late Juan Bon Fing Sy, through
Administratrix Melecia T. Sy, to pay: 1) Felicito G. Sanson, the
amount of P603,500.00; 2) Celedonia S. Saquin, the amount
of P315.000.00; 3) Angeles Montinola, the amount of P150,000.00;
and 4) Eduardo Montinola, Jr., the amount of P50,000.00. representing
unsettled checks issued by the deceased. SO ORDERED.
RATIO:
Jade’s Testimony + Signature + Dead Man’s Statute
1.   Jade, Eduardo and Angeles’ contentions:
a.   Administratrix Melecia did not deny the testimony of
Jade nor present any evidence to controvert it
b.   Neither did she deny the execution and genuineness of
the checks issued by the deceased (as well as the check
return slips issued by the clearing bank)
2.   Administratrix Melecia’s contentions:
a.   Jade’s testimony is self serving because she did not
categorically state that she saw the filling up and
signing of the checks by the deceased making the due
execution and authenticity of the checks not duly
proven
b.   Jade had identical and unitary interest with her husband
and mother-in-law, her testimony was a circumvention
of the Dead Man’s Statute.
3.   SIGNATURE: The Court ruled that relationship to a party
has never been recognized as an adverse factor in
determining either the credibility of the witness or—subject
only to well recognized exceptions none of which is here
present—the admissibility of the testimony.
4.   At most, closeness of relationship to a party, or bias, may
indicate the need for a little more caution in the assessment of
a witness’ testimony but is not necessarily a negative
element, which should be taken as diminishing the credit
otherwise accorded to it.
5.   Moreover, based on Jade’s testimony she was present when
Juan Sy signed the check.
6.   As per Section 24 of the Negotiable Instruments Law3, Juan Sy
3 Section 24. Presumption of Consideration. – Every negotiable instrument is deemed prima facie to have
been issued for a valuable consideration; and every person whose signature appears thereon to have
become a party thereto for value.
is prima facie presumed to have become a party to the check
for value. Such prima facie presumption was not rebutted or
contradicted by Administratrix Melecia who expressly
manifested that she was dispensing with the presentation of
evidence against their claims has become conclusive.
7.   DEAD MAN’S STATUTE: The Court ruled that this does not
apply.
8.   The rule renders incompetent:
a.   Parties to a case
b.   Their assignors or
c.   Persons in whose behalf a case is prosecuted
9.   This is an exclusive list. Mere witnesses who are not included
in the above enumeration are not prohibited from testifying as
to a conversation or transaction between the deceased and a
third person, if he took no active part therein.
10.  Jade is not a party to the case. Neither is she an assignor nor a
person in whose behalf the case is being prosecuted. She
testified as a witness to the transaction.
11.  In any event, independently of the testimony of Jade, the
claims of the Montinolas would still prosper on the basis of
their documentary evidence—the checks.
Felicito and Celedonia’s Testimonies
1.   Felicito and Celedonia’s contentions:
a.   Each other’s claim against the deceased Juan Sy are not
covered of the Dead Man’s Statute
b.   Administratrix Melencia waived application of the law
when she cross-exmained them
2.   Administratrix Melecia’s contentions:
a.   The law speaks of "parties or assignors of parties to a
case."
b.   The testimonies of Sanson and Saquin on each other’s
behalf, as co-parties to the same case, falls under the
prohibition.
3.   DEAD MAN’S STATUTE: The Court ruled that this does not
apply.
4.   Felecito and Celedonia’s claims against the same estate arose
from the separate transactions. Felecito is a third party with
respect to Celedonia’s claim and vice versa. One is not thus
 disqualified to testify on the other’s transaction.
5.   In any event, what the Dead Man’s Statute proscribes is the
admission of testimonial evidence upon a claim, which arose
before the death of the deceased. The incompetency is
confined to the giving of testimony.
6.   Since the separate claims of Felecito and Celedonia are
supported by checks-documentary evidence, their claims can
be prosecuted on the bases of said checks.
7.   SIGNATURE: Both Felecito and Celedonia testified that they
“know” the signature of the deceased.
8.   While the testimonies of the siblings did not faithfully
discharge the quantum of proof under Section 22, Rule 1324,
Administratrix Melecia failed to controvert the same.
9.   COMPARISON OF THE SIGNATURE OF JUAN SY ON
ALL THE CHECKS: with the naked eye of the deceased’s
signature appearing on each of the checks-exhibits of the
Montinolas with that of the checks-exhibits of the Sanson
siblings all of which checks were drawn from the same
account, they appear to have been affixed by one and the same
hand.
10.  Felicito et al have substantiated their claims against the estate
of the deceased Juan Sy, the burden of evidence had shifted to
Administratrix Melecia.
11.  Adminitratrix Melecia expressly dispensed with the
presentation of evidence against the claims.
12.  Hence, intestate estate of Juan Sy must pay Felicitas et al.

4 Section 22. How genuineness of handwriting proved. – The handwriting of a person may be proved by
any witness who believes it to be the handwriting of such person because he has seen the person write, or
has seen writing purporting to be his upon which the witness has acted or been charged and has thus
acquired knowledge of the handwriting of such person.
 002 ZIEGLER v. MOORE (APASAN)
February, 9, 1959 | Badt, J. | Dead Man’s Statute
PETITIONER: Eula Lovell Zeigler
RESPONDENTS: Robert MOORE, Administrator of the Estate of Al Christ,
Deceased
SUMMARY: Eula Lovell Zeigler (Zeigler), sued one Al Christ (Christ) for
damages alleging that her automobile was struck in the rear by a car negligently
operated by Christ in August 1955 on Highway 40 about one and one-half miles
west of Winnemucca, she was driving easterly toward that city. Christ
answered, denying negligence but admitting a collision between the two cars.
Christ also pleaded Zeigler's contributory negligence. Christ died in May 1957
and Robert Moore (Moore) was substituted as his administrator before trial. At
the trial, the court excluded under the dead man's rule certain testimony of the
Zeigler and the latter’s witness, sheriff Delbert Moore (Sheriff). Hence, this
appeal.
Issue: WoN the court erred in excluding the testimonies of Zeigler and the
latter’s witness under the dead man’s statute – (read doctrine)
First, there is no dispute that Zeigler is an “interested party” because as a
plaintiff, she would either gain or lose by direct legal operation of the judgment.
However, distinction must still be made with regard to the matters that she
testified. Zeigler’s testimony as to her medical bills, her pain and suffering and
matters of like nature which the decedent could not have contradicted of his
own knowledge, was clearly admissible and the rejection of such testimony was
prejudicial error.
Second, the testimony of the Sheriff was erroneously excluded since the latter is
a disinterested party in the case. He did not have anything to gain or loss
whatever may be the outcome of the judgment.
Lastly, Ziegler insists that she is not precluded from testifying because the
decedent cannot be said to be "the other party to the transaction" inasmuch as no
"transaction" was involved; that a tort action is not a transaction. However, the
court ruled that the term "transaction" was broader than "contract" and broader
than "tort" and that it might include either or both.
DOCTRINE: The Dead Man’s Statute is a rule of law the purpose of which is
to prevent an interested party (surviving) from testifying on matters which the
decedent could have contradicted of his own knowledge. An interested party
means that the witness would either gain or lose by direct legal operation of the
judgment. The rule does not apply therefore to disinterested third persons.
Furthermore, the word “transaction” under the statute is broad enough to
include both contracts and torts.
FACTS:
1.   Plaintiff-appellant, Eula Lovell Zeigler (Zeigler), sued one Al Christ
(Christ) for damages alleging that her automobile was struck in the rear by a
car negligently operated by Christ in August 1955 on Highway 40 about
one and one-half miles west of Winnemucca, she was driving easterly
toward that city. Christ answered, denying negligence but admitting a
collision between the two cars. Christ also pleaded Zeigler's contributory
negligence.
2.   Christ died in May 1957 and Robert Moore (Moore) was substituted as his
administrator before trial.
a.   Delbert Moore, sheriff of Humboldt County, testified that Christ,
after the accident, had come to the office and made an "accident
report" and, in his conversation in making the report, talked to him
(Sheriff) "about how the accident happened." The sheriff was then
asked (perhaps during trial): "What did he tell you?", and objection
on the ground "that this witness is rendered incompetent by reason
of § 48.010 NRS" was sustained.
3.   At the trial, the court excluded under the dead man's rule certain testimony
of the Zeigler and the latter’s witness, sheriff Delbert Moore (Sheriff).
4.   Hence, this appeal.
ISSUE:
1.   WoN the Court erred in excluding the testimonies of Zeigler and the latter’s
witness under the dead man’s statute – With regard to the testimonies as to
Ziegler’s medical bills, her pain and suffering and matters of like nature
which the decedent could not have contradicted of his own knowledge, was
clearly admissible and the rejection of such testimony was prejudicial error.
Other than these matters, her testimonies was properly excluded. The
testimony of the sheriff was erroneously excluded since he was a
disinterested third party.
RULING: Reversed and Remanded for new trial (perhaps for the inclusion of the
testimony of the Sheriff and reception of other pieces of evidence such as to Zeigler’s
medical bills, her pain and suffering and matters of like nature which were
improperly excluded).
RATIO:
5.   *428 The statute commonly known as the dead man's rule now appears, in
pertinent part, in our codes as NRS 48.010 and 48.030, as follows:
"48.010 1. All persons, without exception, otherwise than as specified in this
chapter, who, having organs of sense, can perceive, and perceiving can make known
their perceptions to others, may be witnesses in any action or proceeding in any
court of the state. Facts which, by the common law, would cause the exclusion of
witnesses, may still be shown for the purpose of affecting their credibility. No
person shall be allowed to testify: "(a) When the other party to the transaction
is dead. "(b) When the opposite party to the action, * * * is the representative of a
deceased person, when the facts to be proven transpired before the death of such
deceased person; * * * "48.030 The following persons cannot be witnesses: "3.
Parties (Zieglier) to an action * * * against an executor or administrator
(Moore) upon a claim or demand against the estate of a deceased person
(Christ), as to any matter of fact occurring before the death of such deceased
person."
6.   The present statute as thus quoted is its present form after having been
subjected to a number of amendments, all of which modified the common
law rule disqualifying as witnesses all persons interested in the event of
the action, generally recognized to mean that the witness would either
gain or lose by direct legal operation or effect of the judgment. It should
be noted that such rule was one of disqualification of witnesses and did
NOT relate to the witness's testimony.
7.   The error assigned in sustaining the objection to the testimony of sheriff
Delbert Moore as to statements made to him by the decedent (Christ) is well
taken (basically the testimony of the sheriff should NOT have been
excluded). The statutory exclusion of the testimony of witnesses under
the sections above quoted has been consistently held by this court NOT
to apply to disinterested third persons.
8.   Moore contends that even if the order excluding the Sheriff’s testimony was
error, it could not possibly have prejudiced Zeigler, thus, it was harmless
error and not ground for reversal. Moore bases this contention upon the
offer of proof that followed the court's ruling, namely, that the sheriff would
testify that Christ told him shortly after the accident "that he, Christ, hit
Ziegler's car in the rear end, and that's the end of the offer of proof, your
Honor." Moore contends that such testimony would establish the mere fact
that an accident had occurred without any inference of negligence. At this
point, however, there had been no evidence in the case that Christ's car had
struck Ziegler’s car in the rear. While it is true that this fact alone would not
necessarily establish negligence on Christ's part, there can be no doubt that
it would constitute a part of such proof. The exclusion of the evidence was
therefore prejudicial. New trial must be ordered.
9.   Ziegler assigns as error the court's ruling precluding her from testifying as
to any fact prior to Christ's death. The position taken by the respective
parties is somewhat confusing. Moore, in support of the court's ruling,
recites the way the issue arose as follows: "At the trial Ziegler was called as
a witness in her own behalf to testify to the facts of the accident" and says
that the question presented is "whether the survivor (Zeigler) of an
automobile accident can give uncontradicted testimony as to the manner in
which the collision occurred when the lips of the other party (Christ) are
sealed by death." However, Moore's objection as made in the trial court and
the rulings *429 which the trial court was prevailed on to make by reason of
such objection were far broader than the enunciation of the proper rule
sought from this court and as expressed in italics above. Ziegler took the
stand and was asked, "Will you please state your name?" Objection was
made that Ziegler "is rendered incompetent to testify under the so-called
Nevada dead man's statute." Thereupon the jury was excused and over thirty
pages of the transcript are devoted to argument, whereupon the objection
was sustained. Thereupon the following took place:
10.   Ziegler then proceeded to make an offer of proof including her age, place of
employment, rate of employment, nature and hours of employment, her
leaving of her place of employment, the route pursued by her, the nature of
the road, visibility, traffic, the striking of her car from behind, her
confinement in the hospital, her doctor bills, the amount of her lost wages
and her pain and suffering. She also offered to testify that, presumably at
the time when Christ was close enough behind her to have observed the
matters testified to and could have contradicted the same of his own
knowledge, "at no time prior to the time of collision did she cause the
brakes to be applied in a sudden manner, nor did she indicate that she was
going to make either a left or a right turn * * * that her car was suddenly
and without warning hit from the rear."
11.   The offer of proof was objected to in its entirety and was denied in its
entirety.
12.   Ziegler now contends as follows: "She is not attempting to testify that the
decedent's car was driven in a reckless manner. She is not by any direct
statement or inference attempting to fix blame or attach fault to any person.
Stating it succinctly, she merely desires to testify that she was driving down
the highway in the proper lane, at a speed reasonable under the
circumstances and that thereafter her car was struck in the rear. (she wants
to prove that did not commit any contributory negligence)"
13.   It will thus be seen that on the one hand Moore obtained an exclusionary
 ruling far broader than the one he now seeks to sustain; and on the other evidence is not limited to the testimony).
hand Ziegler sought, by her offer of proof, to testify in far wider scope than 19.   Ziegler further contends that inasmuch as the application of the dead man's
she now claims admissible. rule is condemned by all writers of the law of evidence as leading to harsh
14.   Ziegler insists first in this respect that she is not precluded from testifying and unjust results this court should not, in a situation that is res integra
under NRS 48.010 (1) (a) because the decedent cannot be said to be "the (novel) in this state, extend its application to tort actions. This, however, is a
other party to the transaction" inasmuch as no "transaction" was involved; matter of public policy, in which are balanced against each other the
that a tort action is not a transaction. There is indeed some authority to chance of injustice in individual cases on the one hand and the protection of
support this view. In many cases this is based upon the wording of the estates from fraudulent demands on the other. A change of policy having
particular state statute involved and is of no assistance here. The Maryland such far-reaching results should be a matter for consideration by the
case just cited, for example, expresses a preference for the New York rule. legislature rather than of the court.
The New York statute, however, definitely fixed the exclusion as applying
to testimony concerning "a personal transaction or communication" with the
decedent. The overwhelming weight of authority supports the rule that
the dead man's statute applies to actions ex delicto (torts) and that such
actions are embraced within the statutory use of the word
"transactions."
15.   In Warren v. DeLong, 59 Nev. 481, 97 P.2d 792, this court had under
consideration our statute providing that if the defendant omit to set up a
counterclaim arising "out of the transaction" he could not afterward
maintain an action against the plaintiff therefor. This court there held that
the term "transaction" was broader than "contract" and broader than
"tort" and that it might include either or both. It approved the setting up
of a counterclaim for conversion under such statute.
16.   If then we apply the (dead man’s) statute to tort actions as well as
personal transactions between the parties, the testimony of Zeigler was
properly excluded under the holdings of this court in earlier cases,
defining the purpose and extent of the rule with reference to those
matters which the decedent (Christ) could have contradicted of his own
knowledge.
17.   By the same token, Zeigler’s testimony as to her medical bills, her pain
and suffering and matters of like nature which the decedent could not
have contradicted of his own knowledge, was clearly admissible and the
rejection of such testimony was prejudicial error.
18.   Finally it is contended by Ziegler that the effect of the statute providing for
the survival of tort actions against the estate of a decedent (NRS 41.110) is
entirely destroyed by application of the dead man's rule in cases such as the
present one where the collision occurs in the desert without witnesses other
than the parties. This is not necessarily so. In virtually all cases much
physical evidence is available skid marks, tire tracks, the condition of
the respective cars involved showing the nature of the collision, etc (the
 003 ZULUETA v. CA (Arcenas) 3.   The documents and papers were seized for use in evidence in a case for
February 20, 1996 | Mendoza, J. | Privileged communication – spousal privilege legal separation and for disqualification from the practice of medicine
which Zulueta filed against Martin in RTC Pasig.
4.   ACTION: Martin brought this action for recovery of the documents and
PETITIONER/S: Cecilia Zulueta
papers and for damages against Zulueta with the RTC Manila
RESPONDENT/S: CA and Alfredo Martin
5.   RTC RULING: in favor of Martin, declaring him the exclusive owner of the
properties described in paragraph 3 of plaintiff's Complaint or those further
SUMMARY: Cecilia Zulueta and Dr. Aflredo Martin are husband and wife. Zulueta
described in the Motion to Return and Suppress
forcibly opened the drawers and cabinet of Martin’s clinic in the presence of her
a.   Ordered Zulueta and any person acting in her behalf to
mother, her driver and Martin’s secretary. She took 157 documents (private
immediately return the properties to Martin
correspondence of Martin and his alleged paramours) suc as greeting cards,
b.   Pay him P5,000.00 as nominal damages, P5,000.00 as moral
cancelled checks, diaries, Martin’s passport and photographs. She used the
damages and attorney's fees and to pay the costs of the suit
documents in evidence for legal separation in the RTC of Pasig. In that case, the writ
c.   The writ of preliminary injunction earlier issued was made final
of preliminary injunction was issued enjoining Zulueta and her attorneys and
and Zulueta and her attorneys and representatives were enjoined
representatives from using or submitting/admitting as evidence the documents and
from using or submitting/admitting as evidence the documents and
papers in question. Later, Martin filed a suit for recovery of the documents and
papers in question. RTC Pasig also prohibited Zulueta from using
papers and damages against Zulueta and also filed a case for disbarment against
the documents
Atty. Felix Jr (Zulueta’s counsel) for using said evidence despite the injunction in the
d.   Also, Martin filed a case for disbarment against Atty Felix Jr
RTC of Manila. RTC MNL ruled in favor of Martin and made final the earlier issued
(Zulueta’s lawyer) for committing malpractice or gross misconduct
injunction order prohibiting the use of the documents in evidence. CA affirmed the
because of the injunctive order by using Martin’s documents in
RTC. Hence this petition. The issue in this case is W/N the documents and papers
evidence.
taken from Martin’s clinic can be used as evidence by Zulueta. The court held for
6.   CA RULING: affirmed RTC ruling. There is no question that the
Martin. SC held that the documents and papers in question are inadmissible in
documents and papers in question belong to Martin, and that they were
evidence. The constitutional injunction declaring the privacy of communication and
taken by his wife without his knowledge and consent.
correspondence to be inviolable is enforceable even against one’s spouse. In thise
7.   Hence, this petition.
case, it is the wife (who thinks herself aggrieved by her husband's infidelity who is
the party against whom the constitutional provision is to be enforced. The law
ISSUE/s: W/N the documents and papers taken from Martin’s clinic can be used as
insures absolute freedom of communication between the spouses by making it
evidence by Zulueta – NO. A person, by contracting marriage, does not shed his/her
privileged.
integrity or his right to privacy as an individual and the constitutional protection is
ever available to him or to her. The law insures absolute freedom of communication
DOCTRINE: A person, by contracting marriage, does not shed his/her integrity or
between the spouses by making it privileged.
his right to privacy as an individual and the constitutional protection is ever available
to him or to her. Neither may be examined without the consent of the other as to any
RULING: The petition for review is DENIED for lack of merit.
communication received in confidence by one from the other during the marriage,
RATIO:
save for specified exceptions.
No malpractice by Zulueta’s counsel
1.   Notably, Martin finally admitted the truth and authenticity of the questioned
FACTS: annexes and Martin’s admission was done not thru his counsel but by Dr.
1.   Cecilia Zulueta (Zulueta) and Alfredo Martin (Martin) are husband and Martin himself under oath
wife. a.   Such verified admission constitutes an affidavit, and, therefore,
2.   March 26, 1982 – Zulueta entered the clinic of Martin, a doctor of receivable in evidence against him. Petitioner became bound by his
medicine. In the presence of her mother, her driver, and Martin’s secretary, admission. For Cecilia to avail herself of her husband's
Zulueta forcibly opened the drawers and cabinet in Martin’s clinic and took admission and use the same in her action for legal separation
157 documents consisting of private correspondence between Dr. Martin cannot be treated as malpractice.
and his alleged paramours, greetings cards, cancelled checks, diaries, Dr. b.   The acquittal of Atty. Felix, Jr. in the administrative case amounts
Martin's passport, and photographs. to no more than a declaration that his use of the documents and
papers for the purpose of securing Dr. Martin's admission as to
 their genuiness and authenticity did not constitute a violation of the
injunctive order of the trial court.
c.   The TRO issued by SC was eventually lifted as the petition
for certiorari filed by Zulueta against the trial court's order was
dismissed and, therefore, the prohibition against the further use of
the documents and papers became effective again.
PRIVACY OF COMMUNICATION BETWEEN SPOUSES (IMPT)
2.   SC held that the documents and papers in question are inadmissible in
evidence. The constitutional injunction declaring the privacy of
communication and correspondence to be inviolable is enforceable even
against one’s spouse
a.   In thise case, it is the wife (who thinks herself aggrieved by her
husband's infidelity) who is the party against whom the
constitutional provision is to be enforced.
b.   EXCEPTION: is if there is a lawful order from a court or when
public safety or order requires otherwise, as prescribed by law.
c.   IMPT:Any violation of this provision renders the evidence
obtained inadmissible for any purpose in any proceeding.
3.   APPLICATION: The intimacies between husband and wife do not justify
any one of them in breaking the drawers and cabinets of the other and in
ransacking them for any telltale evidence of marital infidelity.
a.   A person, by contracting marriage, does not shed his/her integrity
or his right to privacy as an individual and the constitutional
protection is ever available to him or to her.
4.   The law insures absolute freedom of communication between the
spouses by making it privileged.
a.   Neither husband nor wife may testify for or against the other
without the consent of the affected spouse while the marriage
subsists.
b.   Neither may be examined without the consent of the other as to
any communication received in confidence by one from the
other during the marriage, save for specified exceptions.
c.   One thing is freedom of communication; quite another is a
compulsion for each one to share what one knows with the other.
And this has nothing to do with the duty of fidelity that each owes
to the other
 People v. Francisco (Linds)
July 16, 1947 | Hilado, J. | Competency of a witness; Marital incapacity
PETITIONER: People of the Philippines
RESPONDENTS: Juan Francisco
SUMMARY: Juan was convicted of parricide by the CFI, now appeals before
the SC to reverse the decision. What transpired was, Juan was previously
arrested on robbery charges and was being held at a jail in Mindoro. He
requested the permission of the chief, which he was allowed to go with
Pimentel, who was tasked to guard him. Upon reaching their house, Pimentel
allowed Juan to see his wife, after which Pimentel heard a scream. Pimentel saw
a girl running out and holding her breast which was bleeding, then he saw Juan
holding his son lying down, dead. Juan had a wound in his belly. The
prosecution recommended capital punishment.
Prosecution relies on these pieces of evidence: affidavit containing accused’s
confession (Exh C), saying that he unconsciously killed his son using a scissor;
record made by the justice of the peace in the arraignment (Exh D), noting that
during arraignment, Juan told him that he executed the confession voluntarily;
and rebuttal testimony of Juan’s wife (since Juan subsequently contradicted his
own confession accusing his wife of killing their child).
Issue is whether Juan should be convicted. Yes.
Exhibit C was signed and sworn to by Juan the day following the fatal
event. Presumably, on making this confession Juan had not yet had time to
reflect upon the consequences of such a confession to himself — egoism was
not yet allowed to operate against the promptings of his conscience. His
subsequent repudiation of the confession one year after its execution must have
been caused by fear of the consequences of his acts, an act of self-preservation.
As regards the marital incompetency to testify against one’s spouse, The wife
did not testify in the direct evidence for the prosecution but under circumstances
presently to be stated. It will be noted that the wife only testified against her
husband after the latter, testifying in his own defense, imputed upon her
the killing of their son. Various possible consequences might flow from her
silence, namely: (1) a criminal prosecution against her which might be
instituted by the corresponding authorities upon the basis of her husband's
aforesaid testimony; (2) in the moral and social sense, her being believed by
those who heard the testimony orally given, as well as by those who may
read the same, once put in writing, to be the killer of her infant child. It has
been aptly said that the law of evidence is the law of common sense.
The SC is of the opinion that Juan might be suffering from an illness which
diminishes his will and consciousness, reducing Juan’s penalty from death to
reclusion perpetua.
DOCTRINE: Marital incompetency to testify does not apply when the
testimony elicited is an act of self-defense.
FACTS:
1.   Convicted of the crime of parricide by the Court of First Instance of
Mindoro, Juan Francisco appeals to this Court and asks us to reverse the
decision of the trial court and to acquit him of the crime charged.
2.   On March 4, 1945, Francisco, who had been previously arrested on charges
of robbery, was being held as detention prisoner in the municipal jail of
Mansalay, Mindoro.
3.   On that date he requested permission from the chief of police, and he was
allowed to go with Sergeant Pacifico Pimentel, who was detailed to guard
him.
4.   Upon their reaching the house, the sergeant allowed the prisoner to see his
wife who was at the time in a room of said house, while said sergeant
remained at the foot of the stairs. After a few moments, Pimentel heard the
scream of a woman.
5.   Running upstairs, he met defendant's wife running out of the room and
holding her right breast which was bleeding.
6.   Still moments later, Pimentel saw defendant lying down with his little son
Romeo, aged one year and a half, on his breast.
7.   Pimentel also found defendant to have a wound in his belly while his child
had a wound in the back. Pimentel found the child dead.
8.   The prosecution, in recommending the imposition of the capital penalty
upon the accused, relies mainly on:
a.   (1) the affidavit, Exhibit C (translation, Exhibit C-1), which is a
virtual confession of the accused;
b.   (2) Exhibit D, which is the record made by the justice of the peace
of Mansalay of the arraignment of the defendant upon which the
latter entered a plea of guilty; and
c.   (3) the rebuttal testimony of Emilia Taladtad, wife of the appellant.
9.   Exhibit C is an affidavit signed and sworn to by the appellant before the
justice of the peace of Mansalay on March 5, 1945,. Exhibit C-1 is its
English translation.
a.   In said affidavit appellant declares that: "I asked permission from
the chief of police so that I may be able to raise my bond and to
indicate to me the house of one Guillermo Gervasio, a policeman,
and I was consented and the sergeant of police accompanied me to
my house; that upon arriving at the house, Sgt. Pacifico Pimentel
allowed me to go up in order that I may be able to talk to my wife
and the sergeant of police awaited me in the stairs of the house;
when I was in the house, I remembered what my uncle told me
to the effect that he would order someone to kill me because I
 am a shame and a dishonor to our family and suddenly I lost
my sense and I thought to myself that if someone would kill me
it would be more preferable for me to kill myself; when I looked
at the bed I saw a scissor near my wife and unconsciously I
picked up the said scissor and immediately stabbed my wife
whereupon I looked for my child on the bed and stabbed him;
I killed my son Romeo Francisco whose age is more or less two
years and after that I stabbed myself; after stabbing myself, I
heard a shot and the sergeant of police asked me if I would
surrender to him or not; I replied him "yes" then I lost my
consciousness."
10.   Pimentel, whose veracity we find in the evidence no reason to doubt,
declared that the accused confessed to him that because he was already tired
or disgusted with his life "on account of the accusation of his father-in-law"
against him, he wanted to wipe out his family by stabbing his wife, his son
and himself, and killing the three of them. The same witness also stated that
the accused confessed to him that he stabbed his wife, his child and himself
because he was ashamed, as his father-in-law told him that he should rather
die than live in shame for having dishonored the family of his wife.
11.   The voluntariness and spontaniety of the confession contained in Exhibit
C was testified to by the justice of the peace of Mansalay and police
sergeant Pimentel, one Sebastian Punzalan, and the chief of police Alfredo
Iwahi; that said justice of the peace had previously read the contents of the
same affidavit to the accused and that the accused signed without any
intimidation having been exerted in the presence of said justice of the
peace.
ISSUE: Whether Francisco should be convicted. Yes, because Exhibit C, containing
his confession, is believed to be the truth since his conscience at the time of
execution of the confession prevails over his egoism.
RULING: Judgment affirmed.
RATIO:
Defense counsel’s arguments
1.   Defense counsel attacks the value of Exhibit C as evidence of guilt for the
reason that the statements contained therein were not, counsel contends,
given spontaneously but through use of violence and intimidation. He also
questions the admissibility of Exhibit D on the ground that it has not been
properly identified; and, with more vigor and stronger emphasis, he
impugns the admissibility of the testimony of appellant's wife, invoking the
provision of section 26 (d) of Rule 123 prohibiting the wife and the husband
from testifying for or against each other.
2.   As to Exhibit C, this document was sworn to and subscribed by said
accused before the justice of the peace of Mansalay. This official testified
that he asked the prisoner before the latter signed said exhibit whether he
understood the contents thereof, and that said latter answered in the
affirmative. The witness further declared that appellant signed the
exhibit voluntarily and that said appellant said that the said affidavit
was his. There is a total absence of evidence, besides the testimony of
appellant himself, to show that his statements contained in said exhibit
were extracted form him by the use of violence and intimidation.
As regards the admissibility of Juan’s confession
3.   Under these circumstances, besides the complete absence of proof of any
reason or motive why Pimentel should so threaten the accused, we find the
accused's version incredible. On page 16 of the same transcript, answering a
question by the Court of First Instance, the accused testified that he
understands English and the translation Exhibit C-1 of the affidavit Exhibit
C is in that language.
4.   we believe that Exhibit C contains the truth, as narrated by the accused
himself who, at the time of making it, must have been moved only by the
determination of a repentant father and husband to acknowledge his guilt
for facts which, though perhaps done under circumstances productive of a
diminution of the exercise of will-power, fell short of depriving the offender
of consciousness of his acts.
5.   Exhibit C was signed and sworn to by appellant the day following the
fatal event. Presumably, on making this confession appellant had not yet
had time to reflect upon the consequences of such a confession to himself
— egoism was not yet allowed to operate against the promptings of his
conscience. But when on February 23, 1946 — almost one year after — this
man testified in his own defense in the Court of First Instance, he already
had had ample opportunity to reflect upon those consequences. And what
happened? As in similar cases, he repudiated his confession, and alleged
torture and violence to have been exerted upon his person and his mind in
order, so he now pretends, to extract it from him. As we find the confession
to have been given voluntarily, we feel justified in concluding that its
subsequent repudiation by the accused almost a year after must have
been due to his fear of its consequences to himself, which he not
improbably thought might cost him his own life. It was the struggle
between the noble and the ignoble in the man, and the latter, aided by
instinct of self-preservation, won.
6.   Furthermore, the statements of appellant in said Exhibit C were
corroborated by the testimony of his wife on rebuttal. This leads us to the
consideration of the admissibility of the wife's testimony.
As regards the marital incompetency to testify against his/her spouse
7.   The wife did not testify in the direct evidence for the prosecution but under
 circumstances presently to be stated. It will be noted that the wife only question." So that if the waiver that we here declare to flow from the above-
testified against her husband after the latter, testifying in his own mentioned testimony of appellant does not happen to be among those which
defense, imputed upon her the killing of their son. were mentioned in the cases cited by Mr. Wharton, that is no reason against
8.   By all rules of justice and reason this gave the prosecution, which had the existence of said waiver.
theretofore refrained from presenting the wife as a witness against her
husband, the right to do so, as it did in rebuttal; and the the wife herself the As regards Exh D, the record of the justice in arraignment that Juan voluntarily
right to so testify, at least, in self-defense, not of course, against being confessed
subjected to punishment in that case in which she was not a defendant but
against any or all of various possible consequences which might flow 12.   But after all has been said and done, in justice to the accused, we believe
from her silence, namely: (1) a criminal prosecution against her which that, whether we are dealing with a simpleton or an eccentric, or we have
might be instituted by the corresponding authorities upon the basis of here one of those well-nigh inexplicable phenomena in human conduct
her husband's aforesaid testimony; (2) in the moral and social sense, where the judge finds himself at a loss to discover an adequate motivation
her being believed by those who heard the testimony orally given, as for the proven acts of the accused, — indulging all reasonable intendments
well as by those who may read the same, once put in writing, to be the in favor of appellant, we are of opinion that when he committed the crime
killer of her infant child. It has been aptly said that the law of evidence is charged against him he must have been suffering from some illness (of the
the law of common sense. body, the mind, the nerves, or the moral faculty) as is contemplated in
9.   At this point, it behooves us to emphasize the all-important role of the State paragraph 9 of article 13 of the Revised Penal Code as a mitigating
in this case. The State being interested in laying the truth before the courts circumstance, namely, "such illness of the offender as would diminish the
so that the guilty may be punished and the innocent exonerated, must have exercise of the will-power of the offender without however depriving him
the right to offer the rebutting testimony in question, even against the of consciousness of his acts."
objection of the accused, because it was the latter himself who gave rise to 13.   Penalty lowered from death to reclusion perpetua.
its necessity. It may be said that the accused husband thought that he would
have more chances of convincing the court of his pretended innocence if he
pointed to his wife as having caused the death of their child, instead of
simply denying that he was the author of the fatal act. To this we would
counter by saying that if he was to be allowed, for his convenience, to make
his choice and thereby impute the act upon his spouse, justice would be
partial and one-sided if both the State and the wife were to be absolutely
precluded from introducing the latter's rebutting testimony.
10.   To add, marital incompetency may be waived. Mr Wharton said this in his
commentary.
11.   To illustrate, Mr. Wharton says above that the accused waives his or her
privilege by calling the other spouse as a witness for him or her, thereby
making the spouse subject to cross-examination in the usual manner, the
reason being that the State is entitled to question the spouse so presented as
to all matters germane and pertinent to the direct testimony. In the same
way, and for a similar reason, when the herein appellant gave his testimony
in question in his defense, the State had the right to rebut the new matter
contained in that testimony consisting in the imputation upon his wife of the
death of the little boy. And that rebuttal evidence, which was rendered
necessary by appellant's own testimony, could be furnished only by his wife
who, as he fully knew, was alone with him and their son at the precise place
and time of the event. This right to rebut is secured to the State, no less than
to the accused, by Rule 115, section 3, paragraph (c), the provision further
authorizing the court, in furtherance of justice, to permit one or the other
party to offer "new additional evidence bearing upon the main issue in
 005 REGALA v. SANDIGANBAYAN (Peliño edited by Balisong)
September 20, 1996 | Kapunan, J. | Privileged Communication; Client’s name
not privileged, exceptions
G.R. No. 105938
PETITIONERS: Teodoro R. Regala, Edgardo J. Angara, Avelino V.
Cruz, Jose C. Concepcion, Rogelio A. Vinluan, Victor P. Lazatin, and
Eduardo U. Escueta
RESPONDENTS: The Honorable Sandiganbayan, First Division,
Republic of the Philippines, acting through the Presidential Commission
on Good Government, and Raul S. Roco
G.R. No. 108113
PETITIONER: Paraja G. Hayudini
RESPONDENTS: The Sandibayan and The Republic of the Philippines
SUMMARY: ACCRA lawyers were made defendants in a
Sandiganbayan case when they did not disclose the name of their
principal since their lawyers were used as nominee-stockholders for
corporations in the coco levy fund scandal. The lawyers now seek to be
excluded from the case on the basis that non-disclosure of the identity of
their client is within the ambit of the attorney-client privilege. The issue
in this case is whether the non-disclosure of the identity of their client is
within the ambit of the attorney-client privilege. The SC held in the
affirmative. The general rule is a client’s identity should not be shrouded
in mystery since the court has the right to know that the client whose
privileged information is sought to be protected is flesh and blood, the
privilege exists only after an attorney-client relationship is established,
and the privilege generally pertains to the subject matter, and that the
opposing party should know his adversary. HOWEVER, the name of the
client will be considered privileged matter:
(a)   Where the circumstances of the case are such that the name of
the client is material only for the purpose of showing an
acknowledgment of guilt on the part of such client of the very
offenses on account of which the attorney was employed.
(b)   When the person invoking the privilege is able to show that a
strong possibility exists that disclosure of the information would
implicate the client in the very matter for which legal advice was
sought in the first case.
(c)   Where disclosure of the identity would be tantamount to
disclosing an otherwise protected confidential communication.
(d)   Where so much of the actual communication has already been
disclosed that identification of the client amounts to disclosure of
a confidential communication.
(e)   Where so much of the actual communication has already been
disclosed
(f)   When disclosure of the identity of the client would provide the
"last link" of evidence.
Information relating to the identity of a client may fall within the ambit
of the privilege when the client’s name itself has an independent
significance, such that disclosure would then reveal client confidence.
The crux of the ACCRA lawyers’ objections hinges on their
expectiation that if the prosecution has a case against their clients,
the latter’s case should be built upon evidence painstakingly
gathered by them from their own sources and not from compelled
testimony requiring them to reveal the name of their clients,
information which unavoidably reveals much about the nature of the
transaction which may or may not be illegal. A lawyer cannot reveal
such communication without exposing himself to charges violating a
principle which forms the bulwark of the entire attorney-client
relationship. To sustain the PCGG’s contentions, it would expose the
lawyers to possible litigation from their clients in view of the strict
fiduciary responsibilities imposed on them in the exercise of their duties.
By compelling, ACCRA lawyers would form the chaim of testimony
necessary to convict their clients of a crime.
DOCTRINE: Information relating to the identity of a client may fall
within the ambit of the privilege when the client’s name itself has an
independent privilege where the client’s name itself has an independent
significance, such that disclosure would then reveal client confidence.
Dissent, Puno, J.: The person claiming the privilege or its exception has
the obligation to present the underlying facts demonstrating the existence
of the privilege. When these facts can be presented only by revealing the
very information sought to be protected by the privilege, the procedure is
for the lawyer to move for an inspection of the evidence in an in camera
hearing. The hearing can even be in camera and ex-parte . Thus, it has
been held that "a well-recognized means for an attorney to demonstrate
the existence of an exception to the general rule, while simultaneously
 preserving confidentiality of the identity of his client, is to move the assignments ACCRA lawyers executed in favor of its client
court for an in camera ex-parte hearing. Without the proofs adduced in covering their respective shareholdings.
these in camera hearings, the Court has no factual basis to determine 43.   PCGG presented supposed proof to substantiate compliance by
whether petitioners fall within any of the exceptions to the general rule. Roceo of the conditions set by them.
a.   Sandiganbayan promulgated the Resolution denying the
exclusion of the ACCRA lawyers for their refusal to comply with
FACTS:
the conditions set forth by PCGG since the ACCRA lawyers
37.   This case was an offshoot of a complaint filed before the
never complied with the conditions, so they can’t be excluded,
Sandiganbayan by the Republic through the PCGG against Eduardo
unlike Roco who complied.
Cojuangco for the recovery of ill-gotten wealth.
44.   ACCRA lawyers moved for a reconsideration, but was denied.
a.   Among the defendants are the petitioners here (ACCRA lawyers
45.   Hence, this petition.
for short).
38.   ACCRA lawyers performed legal services for its clients, and in the ISSUE/s:
performance of these services, they delievered documents which
12.   Whether ACCRA lawyers should be excluded on the ground that the
substantiate the client’s equity holdings.
attorney-client privilege prohibits ACCRA lawyers from revealing
a.   In their dealings, ACCRA lawyers acquired information as to the
the identity of their clients. – YES, jurisprudence has provided that
assets of their clients and their personal and business
the identity of the client, when it can be used as a fishing expedition
circumstances.
to file cases, can be considered as privileged.
b.   And that they assisted in the organization and acquisition of the
companies in the case of Cojuangco and these ACCRA lawyers
RULING: WHEREFORE, in view of the foregoing, the Resolutions of the
acted as nominee-stockholders in the corporations subject of the
Sandiganbayan are hereby ANNULLED and SET ASIDE. Sandiganbayan is
sequestration proceedings.
further ordered to EXCLUDE petitioners Teodoro Regala, Edgardo Angaram
39.   PCGG filed a Motion to Admit Third Amended Complaint and a Avelino Cruz, Jose Concepcion, Victor Lazatin, Eduardo Escueta, and Paraja
Third Amended Complaint, since they moved to exclude Raul Roco
Hayudini as parties-defendants in the case entitled “Republic v. Cojuangco,
(Roco) from the complaint.
Jr., et. al.”
a.   Basis was that Roco complied with the condition that he will
reveal the identity of the principal/s for whom he acted as
RATIO:
nominee/stockholder in the companies involved in the PCGG
On whether ACCRA lawyers should be excluded on the ground that the
case.
attorney-client privilege prohibits ACCRA lawyers from revealing the
b.   ACCRA lawyers were included in the Third Amended
identity of their clients
Complaint since ACCRA lawyers conspired in setting up,
1.   ACCRA laywers: Exclusion of Roco grants him a favorable
through the coco levy funds, the companies subject of the
treatment.
sequestration proceedings.
a.   Even assuming that such an undertaking has been assumed by
40.   ACCRA lawyers in their answer said in essence that their
Roco, they are prohibited from revealing the identity of their
participation was in furtherance of legitimate lawyering.
principal under their sworn mandate and fiduciary duty as
41.   Hayudini was also implicated.
lawyers to uphold at all times the confidentiality of information
42.   ACCRA lawyers filed a comment and/or opposition with counter-
obtained during such lawyer-client relationship.
motion that PCGG should grant them the same treatment as how they
2.   PCGG: Revelation of the identity of the client is not within the ambit
treated Roco (since PCGG dropped Roco).
of lawyer-client confidentiality privilege, nor are the documents it
a.   PCGG’s comment set out the conditions for the exclusion of the required protected, because they are evidence of nominee status.
ACCRA lawyers, namely: (i) disclosure of the identity of its
3.   SC: Contentions of ACCRA lawyers are impressed with merit.
clients, (ii) submission of documents substantiating the lawyer-
a.   ACCRA lawyers were impleaded as co-defendants to force them
client relationship, and (iii) submission of the deeds of
 to disclose the identity of their clients. So PCGG is not after the
ACCRA lawyers but the “bigger fish” as evidenced by their
willingness to cut a deal with the ACCRA lawyers.
b.   Nature of the lawyer-client relationship is premised on the
concept of location conductio operarum (contract of lease of
services) and mandato (contract of agency); but the relationship
itself is more than that of the principal-agent and lessor-lessee.
c.   An attorney is more than a mere agent or servant because he
possesses special powers of trust and confidence reposed on
him by his client.
d.   In the creation of lawyer-client relationship, there are rules,
ethical conduct and duties that breathe life into it.
e.   This duty of the lawyer is enunciated in Rules 138, Canon 17
and 15 of the CPR.
f.   Encouraging full disclosure to a lawyer by one seeking legal
services opens the door to a whole spectrum of legal options
which would otherwise be circumscribed by limited
information engenedered by a fear of disclosure.
g.   Effective lawyer-client relationship is largely dependent upon the
degree of confidence which exists between lawyer and client
which in turn requires a situation which encourages a dynamic
and fruitful exchange and flow of information.
h.   GENERAL RULE: A client’s identity should not be
shrouded in mystery since the court has the right to know
that the client whos privileged information is sought to be
protected is flesh and blood, the privilege exists only after an
attorney-client relationship is established, and the privilege
generally pertains to the subject matter, and that the
opposing party should know his adversary. EXCEPTIONS:
i.   Where the circumstances of the case are such that the
name of the client is material only for the purpose of
showing an acknowledgment of guilt on the part of such
client of the very offenses on account of which the
attorney was employed.
ii.   When the person invoking the privilege is able to show
that a strong possibility exists that disclosure of the
information would implicate the client in the very matter
for which legal advice was sought in the first case.
iii.   Where disclosure of the identity would be tantamount to
disclosing an otherwise protected confidential
communication.
iv.   Where so much of the actual communication has already
been disclosed that identification of the client amounts to
disclosure of a confidential communication.
v.   Where so much of the actual communication has already
been disclosed
vi.   When disclosure of the identity of the client would
provide the "last link" of evidence.
i.   The case at bar falls under the exceptions, considering that the
clients of ACCRA lawyers consulted them in their capacity as
lwayers regarding the financial and corporate structure,
framework, and set-up of the corporation in question, and in turn,
the lawyers gave their professional advice.
j.   Revelation of the client’s name would obviously provide the
necessary link for the prosecution to build a case where none
exists. It is the link that would form the chain of testimony
necessary to convict the client of a crime. (As stated in the US
case of Baird).
k.   But there are distinctions where: (1) a case were a client takes on
the services of a lawyer for illicit purposes, and (2) where the
client thinks he might have previously committed something
illegal and consults his attorney about it. The first one is not
privileged but the other one is. Because whether or not the act is
illegal, his name can’t be used or disclosed if the disclosure leads
to evidence, not yet in the hands of the prosecution, which might
lead to a possible action against him. This results to a fishing
expedition.
l.   The crux of the ACCRA lawyers’ objections hinges on their
expectiation that if the prosecution has a case against their
clients, the latter’s case should be built upon evidence
painstakingly gathered by them from their own sources and not
from compelled testimony requiring them to reveal the name of
their clients, information which unavoidably reveals much about
the nature of the transaction which may or may not be illegal.
m.   A lawyer cannot reveal such communication without exposing
himself to charges violating a principle which forms the bulwark
of the entire attorney-client relationship.
n.   Ubbermei fide relationship – imposes strict liability; ethical
duties owing to the client including confidentiality, loyalty,
competence, diligence, as well as responsibility to keep clients
informed and protect their rights to make decisions have been
zealously sustained.
o.   To sustain the PCGG’s contentions, it would expose the lawyers
to possible litigation from their clients in view of the strict
 fiduciary responsibilities imposed on them in the exercise of 4.   In addition, they merely just asserted the privilege without showing
their duties. proof that they are entitled to it, unlike Roco who actually showed
p.   By compelling, ACCRA lawyers would form the chaim of proof.
testimony necessary to convict their clients of a crime.

Vitug, Concurring:
1.   Protection of confidentiality of the lawyer-client relationship is one
and it has since been an accepted firmament in the profession.
2.   It allows the lawyer and the client to institutionalize a unique
relationship based on full trust and confidence essential in a justice
system that works on the basis of substantive and procedural due
process.

Davide, Jr., Dissenting:

1.   The rule of confidentiality under the lawyer-client relationship is not
a cause to exclude a party. It is merely a ground for disqualification
of a witness and may only be invoked at a proper time.
2.   None of the lawyers in this case were required to testify, but in fact,
were made defendants.
3.   In essence, he dissented, saying that if they allow the ACCRA
lawyers to be excluded, then they, in effect, allow a defiance of the
law or at lessening confidence in the legal system.

Puno, Dissenting:
1.   General Rule, the attorney-client privilege does not include non-
disclosure of client identity. But there are exceptions.
2.   The person claiming the privilege or its exception has the
obligation to present the underlying facts demonstrating the
existence of the privilege. When these facts can be presented only
by revealing the very information sought to be protected by the
privilege, the procedure is for the lawyer to move for an
inspection of the evidence in an in camera hearing. The hearing
can even be in camera and ex-parte . Thus, it has been held that
"a well-recognized means for an attorney to demonstrate the
existence of an exception to the general rule, while
simultaneously preserving confidentiality of the identity of his
client, is to move the court for an in camera ex-parte hearing.
Without the proofs adduced in these in camera hearings, the
Court has no factual basis to determine whether petitioners fall
within any of the exceptions to the general rule.
3.   However, for Justice Puno, this case actually falls under a case were
a client takes on the services of a lawyer for illicit purposes.
 006 People v. Sandiganbayan (BRUZON)
16 July 1997 | Regalado, J. | Chain of Custody
PETITIONER: People of the Philippines
RESPONDENTS: Honorable Sandiganbayan, Mansueto Honrada, Ceferino
Paredes, Jr. and Generoso Sansaet
SUMMARY: Paredes applied for a free patent over a land situated in
Agusan del Sur. The application was approved and OCT was issued in his
favor. The director of lands filed an action to cancel the title because the land
was reserved as a school site finding that the application of Paredes was
tainted with fraud and misrepresentation. Sansaet was the counsel of Paredes
in this civil case. Subsequently, an information for perjury was filed against
Paredes but the case was dismissed because of prescription. Again, Sansaet
was the counsel of Paredes in this criminal case. Paredes was charged with
violation of the RA 3019 for using his former position as Provincial Attorney
to influence and induce the Bureau of Lands officials to favorably act on his
application for free patent. The case was dismissed because of prescription.
For the third time, Sansaet was the counsel of record. One Teofilo Gelacio,
who initiated the perjury and graft charges, sought the investigation of
Paredes, Sansaet and Honrada before the Ombudsman for the falsification of
public documents. Honrada was the Clerk of Court and Acting Stenographer
of the First Municipal Circuit Trial Court. Honrada, in conspiracy with
Paredes and Sansaet, simulated and certified certain documents purporting to
be a notice of arraignment, and transcripts of stenographic notes supposedly
taken during the arraignment of Paredes on the perjury charge in order to
support his contention that the same would constitute double jeopardy. No
notice of arraignment was received by the Office of the Provincial Fiscal in
connection with that perjury case and the perjury case in his court did not
reach the arraignment stage since action thereon was suspended pending the
review of the case by the Department of Justice. A motion was filed by the
people to discharge Sansaet as a state witness. Sandiganbayan, hewing to the
theory of the attorney-client privilege, resolved to deny the desired
discharge. Issue: W/N the testimony of Sansaet, as proposed state witness, is
barred by the attorney-client privilege? NO. The privilege is not confined to
verbal or written communications made by the client to his attorney but
extends as well to information communicated by the client to the attorney by
other means. There was a confidential communication made by Paredes to
Sansaet in connection with Criminal Cases for falsification before
Sandiganbayan, and this may reasonably be expected since Paredes was the
accused and Sansaet his counsel therein. For the application of the attorney-
client privilege, the period to be considered is the date when the
privileged communication was made by the client to the attorney. The
privileged confidentiality does not attach with regard to a crime which a
client intends to commit thereafter or in the future and for purposes of which
he seeks the lawyer's advice. The testimony sought to be elicited from
Sansaet as state witness are the communications made to him by physical
acts and/or accompanying words of Parades at the time he and Honrada,
either with the active or passive participation of Sansaet, were about to
falsify, or in the process of falsifying, the documents. The confidential
communications made by Paredes to Sansaet were for purposes of and in
reference to the crime of falsification which he, in confederacy with his
Honrada and Sansaet, later committed. Moreover, Sansaet was a conspirator
in the commission of that crime of falsification. The existence of an unlawful
purpose prevents the privilege from attaching.
DOCTRINE: For the application of the attorney-client privilege, the period
to be considered is the date when the privileged communication was made by
the client to the attorney.
FACTS:
1.   In 1976, Paredes applied for a free patent over a lot of the Rosario
Public Land Subdivision Survey. His application was approved and
an original certificate of title was issued in his favor.
2.   In 1985, the Director of Lands filed an action for the cancellation of
respondent Paredes' patent and certificate of title since the land had
been designated and reserved as a school site. The trial court
nullified said patent and title after finding that respondent Paredes
had obtained the same through fraudulent misrepresentations in his
application. Sansaet served as counsel of Paredes in that civil case.
3.   An information for perjury was filed against Paredes in the MCTC.
However, the Fiscal was directed to move for the dismissal of the
case because of prescription, hence the proceedings were terminated.
In this criminal case, Paredes was likewise represented by Sansaet.
4.   Paredes was haled before the Tanodbayan for preliminary
investigation on the charge that, by using his former position as
Provincial Attorney to influence and induce the Bureau of Lands
officials to favorably act on his application for free patent, he had
violated Section 3(a) of Republic Act No. 301.
5.   A criminal case was filed with the Sandiganbayan charging Paredes
with a violation of Section 3(a) of Republic Act No. 3019. However,
the case was dismissed on the ground of prescription. For the third
time, Sansaet was Paredes' counsel of record.
6.   Teofilo Gelacio, who initiated the perjury and graft charges against
Paredes, sent a letter to the Ombudsman seeking the investigation of
Paredes, Sansaet and Honrada for falsification of public documents.
7.   He avers that Honrada, in conspiracy with Paredes and Sansaet,
simulated and certified as true copies certain documents purporting
to be a notice of arraignment, and transcripts of stenographic notes
supposedly taken during the arraignment of Paredes on the perjury
charge. These falsified documents were annexed to Paredes' motion
for reconsideration of the Tanodbayan resolution for the filing of a
graft charge against him, in order to support his contention that the
same would constitute double jeopardy.
8.   Gelacio attached to his letter a certification that no notice of
arraignment was ever received by the Office of the Provincial Fiscal
in connection with that perjury case; and a certification of Presiding
Judge that said perjury case in his court did not reach the
arraignment stage since action thereon was suspended pending the
review of the case by the Department of Justice.
9.   Sansaet revealed that Paredes contrived to have the graft case under
preliminary investigation dismissed on the ground of double
jeopardy by making it appear that the perjury case had been
dismissed by the trial court after he had been arraigned therein. The
documents which were later filed by respondent Sansaet in the
preliminary investigation were prepared and falsified by his
Honradas and Paredes.
10.   Ombudsman approved the filing of falsification charge against all the
Paredes, Honradas and Sansaet. The proposal for the discharge of
Sansaet as a state witness was rejected by the Ombudsman.
11.   Thereafter, a motion was filed by the people to discharge Sansaet as
a state witness. Sandiganbayan, hewing to the theory of the attorney-
client privilege, resolved to deny the desired discharge.
ISSUE/s:
13.   Whether the projected testimony of Sansaet, as proposed state
witness, is barred by the attorney-client privilege? NO — The
confidential communications were in reference to the crime of
falsification which the three accused later committed.
14.   Whether an accused who was held guilty by reason of membership in
a conspiracy is eligible to be a state witness? YES — The rule of
equality in the penalty to be imposed upon conspirators is an affair of
substantive law which should not be equated with the procedural rule
on the discharge of particeps criminis.
RULING: WHEREFORE, the writ of certiorari prayed for is hereby granted
SETTING ASIDE the impunged resolutions an ORDERING that the present
reliefs sought in these cases by petitioner be allowed and given due course by
respondent Sandiganbayan.
RATIO:
Issue 1
1.   In the American jurisdiction from which our present evidential rule
was taken, there is no particular mode by which a confidential
communication shall be made by a client to his attorney. The
privilege is not confined to verbal or written communications made
by the client to his attorney but extends as well to information
communicated by the client to the attorney by other means.
2.   There was a confidential communication made by Paredes to Sansaet
in connection with Criminal Cases for falsification before
Sandiganbayan, and this may reasonably be expected since Paredes
was the accused and Sansaet his counsel therein.
3.   The acts and words of the parties during the period when the
documents were being falsified were necessarily confidential since
Paredes would not have invited Sansaet to his house and allowed him
to witness the same except under conditions of secrecy and
confidence.
4.   A distinction must be made between confidential communications
relating to past crimes already committed, and future crimes intended
to be committed, by the client. Announced intention of a client to
 commit a crime is not included within the confidences which his
attorney is bound to respect.
5.   For the application of the attorney-client privilege, the period to be
considered is the date when the privileged communication was made
by the client to the attorney in relation to either a crime committed in
the past or with respect to a crime intended to be committed in the
future.
6.   If the client seeks his lawyer's advice with respect to a crime that the
former has theretofore committed, he is given the protection of a
virtual confessional seal which the attorney-client privilege declares
cannot be broken by the attorney without the client's consent. The
same privileged confidentiality, however, does not attach with regard
to a crime which a client intends to commit thereafter or in the future
and for purposes of which he seeks the lawyer's advice.
7.   The testimony sought to be elicited from Sansaet as state witness are
the communications made to him by physical acts and/or
accompanying words of Parades at the time he and Honrada, either
with the active or passive participation of Sansaet, were about to
falsify, or in the process of falsifying, the documents which were
later filed in the Tanodbayan by Sansaet and culminated in the
criminal charges now pending in Sandiganbayan.
8.   The confidential communications made by Paredes to Sansaet were
for purposes of and in reference to the crime of falsification which
had not yet been committed in the past by Paredes but which he, in
confederacy with his Honrada and Sansaet, later committed. Having
been made for purposes of a future offense, those communications
are outside the pale of the attorney-client privilege.
9.   Moreover, Sansaet was a conspirator in the commission of that crime
of falsification. The existence of an unlawful purpose prevents the
privilege from attaching.
Issue 2
1.   The rule on the discharge of an accused to be utilized as state witness
clearly looks at his actual and individual participation in the
commission of the crime, which may or may not have been
perpetrated in conspiracy with the other accused.
2.   One of the requirements for a state witness is that he "does not
appear to be the most guilty." By "most guilty" the Court mean the
highest degree of culpability in terms of participation in the
commission of the offense and not necessarily the severity of the
penalty imposed. While all the accused may be given the same
penalty by reason of conspiracy, yet one may be considered least
guilty if the court takes into account his degree of participation in the
perpetration of the offense.
3.   The rule of equality in the penalty to be imposed upon conspirators
found guilty of a criminal offense is based on the concurrence of
criminal intent in their minds and translated into concerted physical
action although of varying acts or degrees of depravity. Since the
Revised Penal Code is based on the classical school of thought, it is
the identity of the mens rea which is considered the predominant
consideration and, therefore, warrants the imposition of the same
penalty on the consequential theory that the act of one is thereby the
act of all.
4.   This [rule of equality in the penalty to be imposed upon conspirators]
is an affair of substantive law which should not be equated with the
procedural rule on the discharge of particeps criminis. This is an
affair of substantive law which should not be equated with the
procedural rule on the discharge of particeps criminis.
5.   Sansaet is the only cooperative eyewitness to the actual commission
of the falsification charged in the criminal cases pending before the
Sandiganbayan, and the prosecution is faced with the formidable task
of establishing the guilt of the two other co-respondents who
steadfastly deny the charge and stoutly protest their innocence. There
is no other direct evidence available for the prosecution of the case,
hence there is absolute necessity for the testimony of Sansaet whose
discharge is sought precisely for that purpose.
 007 BARTON vs. LEYTE (Buenaventura)
March 22, 1924 | Street, J. | Privileged communication
PETITIONER: James D. Barton
RESPONDENTS: Leyte Asphalt & Mineral Oil Company
SUMMARY: Barton was authorized by LEYTE to sell its products, bituminous
limestone from the Lucio Mine. Barton then went to different countries and
contracted “sub-agents”in San Francisco, Australia, and Japan. He got multiple
orders from these sub-agents, and he notified Leyte of such. The president of LEYTE
informed Barton that due to a delay in construction, the company cannot provide for
big orders. It will be noted that the only written communications between Barton and
LEYTE in which the former gave notice of having any orders for the sale of
bituminous limestone are the four letters; a) 5k tons for San Francisco, b) 5k tons for
Australia, c) 10k for Japan, with initial 1k delivery, and d) additional 5k for
Australia.However LEYTE said that they will only accept the orders if "no orders
can be entertained unless cash has been actually deposited with either the
International Banking Corporation or the Chartered Bank of India, Australia and
China, Cebu."
Barton now questioned this condition and filed a case for breach of contract against
LEYTE and as damages for breach of contract, the sum of $318,563.30, and to
secure a judicial pronouncement to the effect that Barton is entitled to an extension
of the terms of the sales agencies specified in the contract. LEYTE answered with a
general denial, and the cause was heard upon the proof, both documentary and oral,
In the trial, A carbon copy of a letter which was offered in evidence by LEYTE,
written by Barton to his attorney and in which he states, among other things, that his
profit from the San Francisco contract would have been at the rate of 85 cents (gold)
per ton. The counsel of Barton objected the admission of the letter stating that unless
such an explanation is made, explaining fully how this carbon copy came into the
possession of the defendant company that it is a confidential communication between
client and lawyer." The counsel for LEYTE stated that it was handed to him by the
previous counsels for Leyte and no further information was then given by the
attorney for LEYTE as to the manner in which the letter had come to his hands and
the trial judge thereupon excluded the document, on the ground that it was a
privileged communication between client and attorney.
The trial judge entered a judgment ]t for Barton to recover the sum of $202,500 with
legal interest from June 2, 1921, and with costs. And LEYTE appealed this.
The issue in this case is WoN the letter orders are sufficient to support the judgment
rendered by the trial court. -NO, the orders should be excluded from the breach of
contract case since the orders came from sub-agents, and not bonafide buyers.
And WoN the carbon copy of Barton’s letter to his attorney stating the supposed
profit from the contracts should be admitted in evidence- YES, this is not covered by
the privilege of communication.
The SC held that The law protects the client from the effect of disclosures made by
him to his attorney in the confidence of the legal relation, but when such a document,
containing admissions of the client, comes to the hand of a third party, and reaches
the adversary, it is admissible in evidence.
DOCTRINE: When papers are offered in evidence a court will take no notice of
how they were obtained, whether legally or illegally, properly or improperly; nor
will it form a collateral issue to try that question.
FACTS:
1.   This action was instituted in the Court of First Instance of the City of
Manila by James D. Barton, to recover of the Leyte Asphalt & Mineral Oil
Co., Ltd., (LEYTE) as damages for breach of contract, the sum of
$318,563.30, and to secure a judicial pronouncement to the effect that
Barton is entitled to an extension of the terms of the sales agencies specified
in the contract. LEYTE answered with a general denial, and the cause was
heard upon the proof, both documentary and oral, after which the trial judge
entered a judgment absolving the defendant corporation from four of the six
causes of action set forth in the complaint and giving judgment for Barton
to recover the sum of $202,500 with legal interest from June 2, 1921, and
with costs.
2.   Barton is a citizen of the United States, resident in the City of Manila, while
LEYTE is a corporation organized under the law of the Philippine Islands
with its principal office in the City of Cebu. LEYTE is the owner of a
valuable deposit of bituminous limestone and other asphalt products, in
Leyte known as the Lucio mine. William Anderson, as president and
general manager of LEYTE addressed a letter to Barton, authorizing him to
sell the products of the Lucio mine in the Commonwealth of Australia and
New Zealand to bonafide buyers
3.   In a letter dated October 1, 1920, the board of directors of LEYTE
approved it and was formally accepted by the Barton
4.   Upon careful perusal of the fourth paragraph from the end of the letter it is
apparent that some negative word has been inadvertently omitted before
"prepared," so that the full expression should be "unless we should notify
you specifically prior to that date that we are unprepared to load at that
rate," or "not prepared to load at that rate."
5.   Very soon after the aforesaid contract became effective, Barton requested
LEYTE to give him a similar selling agency for Japan. To this request Wm.
Anderson, replied that they do not feel like giving him a regular agency for
Japan until Barton can make some large sized sales there, because some
other people have given them assurances that they can handle the Japanese
sales, therefore we have decided to leave this agency open for a time.
6.   Meanwhile the Barton went to San Francisco and entered into an agreement
with Ludvigsen & McCurdy, whereby said firm was constituted a subagent
and given the sole selling rights for the bituminous limestone products of
the LEYTE for the period of one year from November 11, 1920. The
territory assigned to Ludvigsen & McCurdy included San Francisco and all
 territory in California. Upon an earlier voyage during the same year to
Australia, Barton had already made an agreement with Frank B. Smith, of
Sydney, whereby the latter was to act as the sales agent for bituminous
limestone mined in Leyte, until February 12, 1921. Later the same
agreement was extended for the period of one year from January 1, 1921.
7.   Ludvigsen & McCurdy, of San Francisco, addressed a letter to Barton
advising him that he might enter an order for 5,000 tons of bituminous
limestone to be loaded at Leyte not later than May 5, 1921. Barton
immediately indorsed his acceptance.
8.   Barton then returned to Manila; and on March 2, 1921, Anderson wrote to
him from Cebu, to the effect that the company was behind with construction
and was not then able to handle big contracts. They had an interview in
Manila Hotel and Anderson said that, owing to lack of capital, adequate
facilities had not been provided by the company for filling large orders and
suggested that Barton hold up in the matter of taking orders. Barton was
surprised at this and told Anderson that he had not only the San Francisco
order but other orders for large quantities of bituminous limestone to be
shipped to Australia and Shanghai.
9.   Three days later Barton addressed a letter to LEYTE notifying it to be
prepared to ship five thousand tons of bituminous limestone to John
Chapman Co., San Francisco.
10.   Frank B. Smith, of Sydney, had an order for 5,000 tons of bituminous
limestone; Barton then notified LEYTE to be prepared to ship another five
thousand tons of bituminous limestone
11.   It will be noted in connection with this letter of Barton, no mention was
made of the names of the person, or firm, for whom the shipments were
really intended. The obvious explanation that occurs in connection with this
is that the plaintiff did not then care to reveal the fact that the two orders
had originated from his own subagents in San Francisco and Sydney.
12.   The assistant manager of LEYTE replied on March, 25, 1921,
acknowledging the receipt of an order for five thousand tons of bituminous
limestone to be consigned to John Chapman Co., of San Francisco, and the
further amount of five thousand tons of the same material to be consigned to
Henry E. White, and it was stated that "no orders can be entertained unless
cash has been actually deposited with either the International Banking
Corporation or the Chartered Bank of India, Australia and China, Cebu."
13.   Barton questioned the right of the defendant to insist upon a cash deposit in
Cebu prior to the filling of the orders. In conclusion the plaintiff gave orders
for shipment to Australia of five thousand tons, or more, about May 22,
1921, and ten thousand tons, or more, about June 1, 1921. He also said "I
have arranged for deposits to be made on these additional shipments if you
will signify your ability to fulfill these orders on the dates mentioned." No
name was mentioned as the purchaser, or purchases, of these intended
Australian consignments.
14.   Barton then went to Japan, he came in contact with one H. Hiwatari. He got
an order for 1,000 tons of bituminous limestone. It was stated that if the
material should prove satisfactory after being thoroughly tested by the
Paving Department of the City of Tokio, he would contract with the
plaintiff for a minimum quantity of 10,000 additional tons and that in this
event the contract was to be automatically extended for an additional four
years.
15.   It will be noted that the only written communications between Barton and
LEYTE in which the former gave notice of having any orders for the sale of
bituminous limestone are the four letters; a) 5k tons for San Francisco, b) 5k
tons for Australia, c) 10k for Japan, with initial 1k delivery, and d)
additional 5k for Australia.
16.   After the suit was brought, the Barton filed an amendment to his complaint
in which he set out, in tabulated form, the orders which he claims to have
received and upon which his letters of notification LEYTE were based. In
this amended answer the name of Ludvigsen & McCurdy appears for the
first time; and the name of Frank B. Smith, of Sydney, is used for the first
time as the source of the intended consignments of the letters, containing
the orders from Ludvigen & McCurdy, Frank B. Smith and H. Hiwatari
were at no time submitted for inspection to any officer of the company
ISSUES:
1.   WoN the letter orders in connection with the subsequent notification thereof
given by the Barton to LEYTE , are sufficient to support the judgment
rendered by the trial court. -NO, the orders should be excluded from the
breach of contract case since the orders came from sub-agents, and not
bonafide buyers.
2.   WoN the carbon copy of Barton’s letter to his attorney stating the supposed
profit from the contracts should be accepted in evidence- YES, this is not
covered by the privilege of communication.
RULING: Our conclusion upon the entire record is that the judgment appealed from
must be reversed; and the defendant will be absolved from the complaint. It is so
ordered, without special pronouncement as to costs of either instance.
RATIO:
1.   The transaction indicated in the orders from Ludvigsen, & McCurdy and
from Frank B. Smith must, in our opinion, be at once excluded from
consideration as emanating from persons who had been constituted mere
agents of the plaintiff. The San Francisco order and the Australian orders
are the same in legal effect as if they were orders signed by the Barton and
drawn upon himself; and it cannot be pretended that those orders represent
sales to bona fide purchasers found by the plaintiff. The original contract by
which the plaintiff was appointed sales agent for a limited period of time in
Australia and the United States contemplated that he should find reliable
and solvent buyers who should be prepared to obligate themselves to take
the quantity of bituminous limestone contracted for upon terms consistent
 with the contract. These conditions were not met by the taking of these obtain knowledge of the communications. One who overhears the
orders from his own subagents, which was as if Barton had bought for communication, whether with or without the client's knowledge, is
himself the commodity which he was authorized to sell to others. Article not within the protection of the privilege. The same rule ought to
267 of the Code of Commerce declares that no agent shall purchase for apply to one who surreptitiously reads or obtains possession of a
himself or for another that which he has been ordered to sell. document in original or copy. (5 Wigmore on Evidence, 2d ed.,
2.   We think, therefore, that the position LEYTE is indubitably sound in so far sec. 2326.)
as it rest upon the contention that Barton has not in fact found any bona
fide purchasers ready and able to take the commodity contracted for upon 5.   Although the precedents are somewhat confusing, the better doctrine is to
terms compatible with the contract which is the basis of the action. the effect that when papers are offered in evidence a court will take no
3.   A carbon copy of a letter which was offered in evidence by LEYTE, written notice of how they were obtained, whether legally or illegally, properly
by Barton to his attorney, Frank B. Ingersoll, Esq., of Manila, and in which or improperly; nor will it form a collateral issue to try that question.
he states, among other things, that his profit from the San Francisco contract
would have been at the rate of 85 cents (gold) per ton. The authenticity of Separate Opinion
this city document is admitted, and when it was offered in evidence by the MALCOLM, J., dissenting:
attorney for LEYTE the counsel for Barton announced that he had no
objection to the introduction of this carbon copy in evidence if counsel for The rule now announced by the Court that it makes no difference how the adversary
LEYTE would explain where this copy was secured. Upon this the attorney acquired possession of the document, and that a court will take no notice of how it
for LEYTE informed the court that he received the letter from the former was obtained, is destructive of the attorney's privilege and constitutes and obstacle to
attorneys of LEYTE without explanation of the manner in which the attempts at friendly compromise. In the case of Uy Chico vs. Union Life Assurance
document had come into their possession. Upon this the attorney for Barton Society, it was held that communications made by a client to his attorney for the
made this announcement: "We hereby give notice at this time that unless purpose of being communicated to others are not privileged if they have been so
such an explanation is made, explaining fully how this carbon copy came communicated. But here, there is no intimation that Exhibit 14 was sent by the client
into the possession of the defendant company, or any one representing it, to the lawyer for the purpose of being communicated to others. Statements in a letter
we propose to object to its admission on the ground that it is a confidential to a party's attorney handed by the latter to the opponent's attorney, are confidential
communication between client and lawyer." No further information was communications and must be excluded.
then given by the attorney for LEYTE as to the manner in which the letter
had come to his hands and the trial judge thereupon excluded the document,
on the ground that it was a privileged communication between client and
attorney.
4.   We are of the opinion that this ruling was erroneous; for even supposing
that the letter was within the privilege which protects communications
between attorney and client, this privilege was lost when the letter came to
the hands of the adverse party. And it makes no difference how the
adversary acquired possession. The law protects the client from the effect
of disclosures made by him to his attorney in the confidence of the legal
relation, but when such a document, containing admissions of the
client, comes to the hand of a third party, and reaches the adversary, it
is admissible in evidence. In this connection Mr. Wigmore says:
a.   The law provides subjective freedom for the client by assuring him
of exemption from its processes of disclosure against himself or
the attorney or their agents of communication. This much, but not
a whit more, is necessary for the maintenance of the privilege.
Since the means of preserving secrecy of communication are
entirely in the client's hands, and since the privilege is a derogation
from the general testimonial duty and should be strictly construed,
it would be improper to extend its prohibition to third persons who
 008 MERCADO v. VITRIOLO (CALLUENG)
26 May 2005 | Puno, J. | Attorney-Client Privilege
PETITIONER: Rosa F. Mercado
RESPONDENTS: Atty. Julito D. Vitriolo
SUMMARY: Mercado’s husband filed Civil Case No. 40537 entitled Ruben
G. Mercado v. Rosa C. Francisco, for annulment of their marriage with the
RTC of Pasig City. This annulment case had been dismissed by the trial
court, and the dismissal became final and executory on July 15, 1992. Atty.
Anastacio P. de Leon, counsel of Mercado, died. Vitriolo entered his
appearance before the trial court as collaborating counsel for Mercado.
Vitriolo filed his Notice of Substitution of Counsel informing the RTC that
he has been appointed as counsel for the Mercado, in substitution of Atty. de
Leon. Vitriolo filed a criminal action against Mercado before the Office of
the City Prosecutor, Pasig City, for violation of Articles 171 and 172
(falsification of public document) of the RPC. Vitriolo alleged that Mercado
made false entries in the Certificates of Live Birth of her children, Angelica
and Katelyn Anne. More specifically, Mercado allegedly indicated in said
Certificates of Live Birth that she is married to a certain Ferdinand
Fernandez, and that their marriage was solemnized on April 11, 1979, when
in truth, she is legally married to Ruben G. Mercado and their marriage took
place on April 11, 1978.
Mercado denied the accusations of Vitriolo against her. Mercado alleged that
said criminal complaint for falsification of public document disclosed
confidential facts and information relating to the civil case for annulment,
then handled by Vitriolo as her counsel. This prompted Mercado Mercado to
bring this action against Vitriolo. She claims that, in filing the criminal case
for falsification, Vitriolo is guilty of breaching their privileged and
confidential lawyer-client relationship, and should be disbarred. The IBP
Commission on Bar Discipline set two dates for hearing but Mercado failed
to appear in both. The IBP Board of Governors approved the report of
investigating commissioner finding the Vitriolo guilty of violating the rule
on privileged communication between attorney and client, and
recommending his suspension from the practice of law for one (1) year.
However, Mercado wrotde a letter of desistance.
ISSUE: WoN Vitriolo violated the rule on privileged communication
between attorney and client when he filed a criminal case for falsification of
public document against his former client. NO, because Mercado did not
even specify the alleged communication in confidence disclosed by Vitriolo.
All her claims were couched in general terms and lacked specificity. On the
rule on attorney-client privilege, the factors are: (1) There exists an attorney-
client relationship, or a prospective attorney-client relationship, and it is by
reason of this relationship that the client made the communication. (2) The
client made the communication in confidence and (3) The legal advice must
be sought from the attorney in his professional capacity.
We hold that the evidence on record fails to substantiate Mercados
allegations. We note that Mercado did not even specify the alleged
communication in confidence disclosed by Vitriolo. All her claims were
couched in general terms and lacked specificity. She contends that Vitriolo
violated the rule on privileged communication when he instituted a criminal
action against her for falsification of public documents because the criminal
complaint disclosed facts relating to the civil case for annulment then
handled by Vitriolo. She did not, however, spell out these facts which will
determine the merit of her complaint. The Court cannot be involved in a
guessing game as to the existence of facts which the Mercado must prove.
DOCTRINE: Factors essential to establish the existence of the
privilege, viz: (1) Where legal advice of any kind is sought (2) from a
professional legal adviser in his capacity as such, (3) the communications
relating to that purpose, (4) made in confidence (5) by the client, (6) are at
his instance permanently protected (7) from disclosure by himself or by the
legal advisor, (8) except the protection be waived.
FACTS:
1.   Rosa F. Mercado filed the instant administrative complaint
against Atty. Julito D. Vitriolo, seeking his disbarment from the
practice of law. The Mercado alleged that Vitriolo maliciously
instituted a criminal case for falsification of public document against
her, a former client, based on confidential information gained from
their attorney-client relationship.
2.   Mercado is a Senior Education Program Specialist of the Standards
Development Division, Office of Programs and Standards while
Vitriolo is a Deputy Executive Director IV of the Commission on
Higher Education (CHED)
3.   Mercado’s husband filed Civil Case No. 40537 entitled Ruben G.
Mercado v. Rosa C. Francisco, for annulment of their marriage with
the RTC of Pasig City. This annulment case had been dismissed by
the trial court, and the dismissal became final and executory on July
15, 1992.
4.   In August 1992, Atty. Anastacio P. de Leon, counsel of Mercado,
died. On February 7, 1994, Vitriolo entered his appearance
before the trial court as collaborating counsel for Mercado
5.   Vitriolo filed his Notice of Substitution of Counsel informing the
RTC that he has been appointed as counsel for the Mercado, in
substitution of Atty. de Leon.
6.   Vitriolo filed a criminal action against Mercado before the Office
of the City Prosecutor, Pasig City, entitled Atty. Julito Vitriolo,
et al. v. Rose Dela Cruz F. Mercado, for violation of Articles 171
and 172 (falsification of public document) of the Revised Penal
Code.
7.   Vitriolo alleged that Mercado made false entries in the
Certificates of Live Birth of her children, Angelica and Katelyn
Anne. More specifically, Mercado allegedly indicated in said
Certificates of Live Birth that she is married to a certain
Ferdinand Fernandez, and that their marriage was solemnized
on April 11, 1979, when in truth, she is legally married to Ruben
G. Mercado and their marriage took place on April 11, 1978.
8.   Mercado denied the accusations of Vitriolo against her. She denied
using any other name than Rosa F. Mercado. She also insisted that
she has gotten married only once, on April 11, 1978, to Ruben G.
Mercado.
9.   In addition, Mercado Mercado cited other charges against Vitriolo
that are pending before or decided upon by other tribunals: (1) libel suit
before the Office of the City Prosecutor, Pasig City; (2) administrative case for
dishonesty, grave misconduct, conduct prejudicial to the best interest of the service,
pursuit of private business, vocation or profession without the permission required
by Civil Service rules and regulations, and violations of the Anti-Graft and Corrupt
Practices Act, before the then Presidential Commission Against Graft and
Corruption; (3) complaint for dishonesty, grave misconduct, and conduct prejudicial
to the best interest of the service before the Office of the Ombudsman, where he was
found guilty of misconduct and meted out the penalty of one month suspension
without pay; and, (4) the Information for violation of Section 7(b)(2) of Republic
Act No. 6713, as amended, otherwise known as the Code of Conduct and Ethical
Standards for Public Officials and Employees before the Sandiganbayan.
10.   Mercado alleged that said criminal complaint for falsification of
public document (I.S. No. PSG 99-9823) disclosed confidential
facts and information relating to the civil case for annulment,
then handled by Vitriolo as her counsel. This prompted Mercado
Mercado to bring this action against Vitriolo. She claims that, in
filing the criminal case for falsification, Vitriolo is guilty of
breaching their privileged and confidential lawyer-client
relationship, and should be disbarred.
11.   Vitriolo filed his Comment/Motion to Dismiss where he alleged that
the complaint for disbarment was all hearsay, misleading and
irrelevant because all the allegations leveled against him are subject
of separate fact-finding bodies.
12.   Vitriolo claimed that the pending cases against him are not grounds
for disbarment, and that he is presumed to be innocent until proven
otherwise.
13.   He also states that the decision of the Ombudsman finding him guilty
of misconduct and imposing upon him the penalty of suspension for
one month without pay is on appeal with the Court of Appeals. He
adds that he was found guilty, only of simple misconduct, which he
committed in good faith.
14.   In addition, Vitriolo maintains that his filing of the criminal
complaint for falsification of public documents against Mercado
does not violate the rule on privileged communication between
attorney and client because the bases of the falsification case are
two certificates of live birth which are public documents and in
no way connected with the confidence taken during the
engagement of Vitriolo as counsel. According to Vitriolo, the
Mercado confided to him as then counsel only matters of facts
relating to the annulment case. Nothing was said about the alleged
falsification of the entries in the birth certificates of her two
daughters. The birth certificates are filed in the Records Division of
CHED and are accessible to anyone.
15.   The Court referred the administrative case to the IBP for
investigation, report and recommendation.
16.   The IBP Commission on Bar Discipline set two dates for hearing
but Mercado failed to appear in both. Investigating Commissioner
Rosalina R. Datiles thus granted Vitriolos motion to file his
memorandum, and the case was submitted for resolution based on
the pleadings submitted by the parties.
17.   The IBP Board of Governors approved the report of
investigating commissioner finding the Vitriolo guilty of violating
the rule on privileged communication between attorney and
client, and recommending his suspension from the practice of
law for one (1) year.
18.   On August 6, 2003, Mercado, upon receiving a copy of the IBP
report and recommendation, wrote Chief Justice Hilario Davide, Jr.,
a letter of desistance. She stated that after the passage of so many
years, she has now found forgiveness for those who have wronged
her.
19.   However, the Court is not bound by any withdrawal of the complaint
 or desistance by the Mercado. The letter of Mercado to the Chief
Justice imparting forgiveness upon Vitriolo is inconsequential in
disbarment proceedings.
ISSUE/s:
1.   WoN Vitriolo violated the rule on privileged communication
between attorney and client when he filed a criminal case for
falsification of public document against his former client. NO,
because Mercado did not even specify the alleged communication
in confidence disclosed by Vitriolo. All her claims were couched
in general terms and lacked specificity.
RULING: IN VIEW WHEREOF, the complaint against respondent
Atty. Julito D. Vitriolo is hereby DISMISSED for lack of merit.
RATIO:
Issue 1
2.   On the rule on attorney-client privilege. Dean Wigmore cites the
factors essential to establish the existence of the privilege, viz: (1)
Where legal advice of any kind is sought (2) from a professional
legal adviser in his capacity as such, (3) the communications relating
to that purpose, (4) made in confidence (5) by the client, (6) are at
his instance permanently protected (7) from disclosure by himself or
by the legal advisor, (8) except the protection be waived.
3.   In fine, the factors are as follows:
(1)   There exists an attorney-client relationship, or a
prospective attorney-client relationship, and it is by
reason of this relationship that the client made the
communication.
i.   Matters disclosed by a prospective client to a
lawyer are protected by the rule on privileged
communication even if the prospective client does
not thereafter retain the lawyer or the latter
declines the employment. The reason for this is to
make the prospective client free to discuss whatever
he wishes with the lawyer without fear that what he
tells the lawyer will be divulged or used against him,
and for the lawyer to be equally free to obtain
information from the prospective client.
ii.   On the other hand, a communication from a
(prospective) client to a lawyer for some purpose
other than on account of the (prospective)
attorney-client relation is not privileged.
Instructive is the case of Pfleider v. Palanca, where
the client and his wife leased to their attorney a 1,328-hectare
agricultural land for a period of ten years. In their contract, the
parties agreed, among others, that a specified portion of the lease
rentals would be paid to the client-lessors, and the remainder
would be delivered by counsel-lessee to client's listed creditors.
The client alleged that the list of creditors which he had
confidentially supplied counsel for the purpose of carrying out
the terms of payment contained in the lease contract was
disclosed by counsel, in violation of their lawyer-client relation,
to parties whose interests are adverse to those of the client. As
the client himself, however, states, in the execution of the terms
of the aforesaid lease contract between the parties, he furnished
counsel with the confidential list of his creditors. We ruled that
this indicates that client delivered the list of his creditors to
counsel not because of the professional relation then existing
between them, but on account of the lease agreement. We then
held that a violation of the confidence that accompanied the
delivery of that list would partake more of a private and civil
wrong than of a breach of the fidelity owing from a lawyer to his
client.
(2) The client made the communication in confidence.
i.   The mere relation of attorney and client does not
raise a presumption of confidentiality. The client
must intend the communication to be
confidential.
i.   A confidential communication refers to information
transmitted by voluntary act of disclosure between
attorney and client in confidence and by means
which, so far as the client is aware, discloses the
information to no third person other than one
reasonably necessary for the transmission of the
information or the accomplishment of the purpose
for which it was given.
ii.   Thus, a compromise agreement prepared by a lawyer
pursuant to the instruction of his client and delivered
to the opposing party, an offer and counter-offer for
settlement, or a document given by a client to his
counsel not in his professional capacity, are not
privileged communications, the element of
confidentiality not being present.
(3) The legal advice must be sought from the attorney in
his professional capacity.
i.   The communication made by a client to his attorney
must not be intended for mere information, but for
 the purpose of seeking legal advice from his attorney
as to his rights or obligations. The communication
must have been transmitted by a client to his
attorney for the purpose of seeking legal advice.
ii.   If the client seeks an accounting service, or business
or personal assistance, and not legal advice, the
privilege does not attach to a communication
disclosed for such purpose.
4.   Applying all these rules to the case at bar, we hold that the
evidence on record fails to substantiate Mercados allegations. We
note that Mercado did not even specify the alleged
communication in confidence disclosed by Vitriolo. All her
claims were couched in general terms and lacked specificity. She
contends that Vitriolo violated the rule on privileged communication
when he instituted a criminal action against her for falsification of
public documents because the criminal complaint disclosed facts
relating to the civil case for annulment then handled by Vitriolo. She
did not, however, spell out these facts which will determine the merit
of her complaint. The Court cannot be involved in a guessing game
as to the existence of facts which the Mercado must prove.
5.   Indeed, Mercado failed to attend the hearings at the IBP. Without
any testimony from Mercado as to the specific confidential
information allegedly divulged by Vitriolo without her consent, it is
difficult, if not impossible to determine if there was any violation of
the rule on privileged communication. Such confidential
information is a crucial link in establishing a breach of the rule
on privileged communication between attorney and client. It is
not enough to merely assert the attorney-client privilege. The
burden of proving that the privilege applies is placed upon the
party asserting the privilege.
 009 KROHN v. CA (CASTILLO)
14 June 1994 | Bellosillo, J. | Privileged Communication: Physician-Patient
PETITIONER: Ma. Paz Fernandez Krohn
RESPONDENTS: CA, Edgar Krohn, Jr.
SUMMARY: Edgar Krohn, Jr. married Ma. Paz Ferndandez. They had three
children. Despite this, marital problems started to surface and Paz submitted
herself to psychological testing, purportedly in an effort to ease the marital
strain. This proved futile and the couple became separated in fact. Edgar was
able to secure a copy of the confidential psychiatric report on Paz, prepared
and signed by Drs. Cornelio Banaag, Jr., and Baltazar Reyes. He then used
the report, among other documents, to obtain a decree from the Tribunal
Metropolitanum Matrimoniale in Manila nullifying his church marriage with
Paz on the ground of “incapacitas assumendi onera conjugalia due to lack of
due discretion existent at the time of the wedding and thereafter.” The decree
was confirmed and pronounced “Final and Definite.” Meanwhile, the Court of
First Instance of Pasig issued an order granting the voluntary dissolution of
the conjugal partnership. Then, Edgar filed a petition for the annulment of his
FACTS:
marriage with Paz before the trial court. He cited the Confidential Psychiatric
Evaluation Report, which Paz denied in her Answer as “either unfounded or
irrelevant.” Edgar took the witness stand and tried to testify on the contents of
the Report. This was objected to on the ground that it violated the rule on
privileged communication between physician and patient. Subsequently, Paz
filed a Manifestation expressing her “continuing objection” to any evidence,
oral or documentary, “that would thwart the physician-patient privileged
communication rule,” and thereafter submitted a Statement asserting that
“there is no factual or legal basis whatsoever for Edgar to claim
‘psychological incapacity’ to annul their marriage, such ground being
completely false, fabricated and merely an afterthought.” Edgar opposed Paz’
motion to disallow the introduction of the confidential psychiatric report as
evidence, and afterwards moved to strike out Paz’ Statement. Issue is WoN
the Confidential Psychiatric Evaluation Report should be allowed as
evidence. YES— The person against whom the privilege is claimed is not
one duly authorized to practice medicine, surgery or obstetrics. He is simply
the patient’s husband who wishes to testify on a document executed by
medical practitioners, hence not covered by the prohibition. It has been
observed that the psychotherapist-patient privilege is founded upon the notion
that certain forms of antisocial behavior may be prevented by encouraging
those in need of treatment for emotional problems to secure the services of a
psychotherapist. Plainly and clearly, Edgar does not fall within the claimed
prohibition. Neither can his testimony be considered a circumvention of the
prohibition because his testimony cannot have the force and effect of the
testimony of the physician who examined the patient and executed the report.
Counsel for petitioner invoked the rule on privileged communications but
never questioned the testimony as hearsay. In failing o object to the testimony
on the ground that it was hearsay, counsel waived his right to make such
objection and, consequently, the evidence offered may be admitted.
DOCTRINE: Physician-Patient Relationship; Requisites in order that the
privilege may be successfully invoked: (a) the privilege is claimed in a civil
case; (b) the person against whom the privilege is claimed is one duly
authorized to practice medicine, surgery or obstetrics; (c) such person
acquired the information while he was attending to the patient in his
professional capacity; (d) the information was necessary to enable him to act
in that capacity; and, (e) the information was confidential and, if disclosed,
would blacken the reputation (formerly character) of the patient.
1.   This is a petition for review on certiorari.
2.   A confidential psychiatric evaluation report is being presented in
evidence before the trial court in a petition for annulment of marriage
grounded on psychological incapacity. The witness testifying on the
report is the husband who initiated the annulment proceedings, not
the physician who prepared the report.
3.   Ma. Paz Fernandez Krohn, invoking the rule on privileged
communication between physician and patient, seeks to enjoin her
husband from disclosing the contents of the report.
4.   Edgar Krohn, Jr., and Ma. Paz Fernandez were married at the Saint
Vincent de Paul Church in San Marcelino, Manila. The union
produced three children, Edgar Johannes, Karl Wilhelm and
Alexandra.
5.   In 1971, Ma. Paz underwent psychological testing purportedly in an
effort to ease the marital strain. The effort however proved futile. In
1973, they finally separated in fact.
6.   Edgar was able to secure a copy of the confidential psychiatric report
on Ma. Paz prepared and signed by Drs. Cornelio Banaag, Jr., and
Baltazar Reyes.
7.   Presenting the report among others, he obtained a decree
(“Conclusion”) from the Tribunal Metropolitanum Matrimoniale in
Manila nullifying his church marriage with Ma. Paz on the ground of
“incapacitas assumendi onera conjugalia due to lack of due
discretion existent at the time of the wedding and thereafter.”
a.   The decree was confirmed and pronounced “Final and
Definite”
8.   CFI of Pasig: issued an order granting the voluntary dissolution of
the conjugal partnership.
9.   Subsequently, Edgar filed a petition for the annulment of his
marriage with Ma. Paz before the trial court.
a.   He cited the Confidential Psychiatric Evaluation Report
which Ma. Paz merely denied in her Answer as “either
unfounded or irrelevant.”
10.   At the hearing, Edgar took the witness stand and tried to testify on
the contents of the Confidential Psychiatric Evaluation Report.
a.   Objected to on the ground that it violated the rule on
privileged communication between physician and patient.
11.   Ma. Paz filed a Manifestation expressing her “continuing objection”
to any evidence, oral or documentary, “that would thwart the
physician- patient privileged communication rule,” and submitted a
Statement for the Record asserting that “there is no factual or legal
basis whatsoever for petitioner (Edgar) to claim ‘psychological
incapacity’ to annul their marriage, such ground being completely
false, fabricated and merely an afterthought.”
a.   Before leaving for Spain where she has since resided after
their separation, Ma. Paz also authorized and instructed her
counsel to oppose the suit and pursue her counterclaim even
during her absence.
12.   Edgar opposed Ma. Paz’ motion to disallow the introduction of the
confidential psychiatric report as evidence, and afterwards moved to
strike out Ma. Paz’ Statement for the Record.
13.   Trial Court: Admitted the Confidential Psychiatric Evaluation Report
in evidence.
a.   Ma. Paz originally did not object on the ground of the
supposed privileged communication between patient and
physician, ONLY ON THE GROUND THAT IT WAS
IRRELEVANT.
b.   Denied Motion to Reconsider Order, and directed the
Statement for the Record filed by Ma. Paz be stricken off the
record.
14.   CA: dismissed the petition for certiorari, and also denied the motion
to reconsider.
15.   Hence, this instant petition for review.
ISSUE/s:
1.   Whether or not the Confidential Psychiatric Evaluation Report
should be allowed as evidence. YES— The person against whom the
privilege is claimed is not one duly authorized to practice medicine,
surgery or obstetrics. He is simply the patient’s husband who wishes
to testify on a document executed by medical practitioners, hence not
covered by the prohibition.
RULING: WHEREFORE, the instant petition for review is DENIED for
lack of merit. The assailed Decision of respondent Court of Appeals
promulgated on 30 October 1992 is AFFIRMED.
RATIO:
Issue 1
 1.   Ma. Paz argues that since Sec. 24, par. (c), Rule 1305 prohibits a
physician from testifying on matters which he may have acquired in
attending to a patient in a professional capacity, “WITH MORE
REASON should a third person be PROHIBITED from testifying on
privileged matters between a physician and patient or from
submitting any medical report, findings or evaluation prepared by a
physician which the latter has acquired as a result of his confidential
and privileged relation with a patient.”
2.   She argues that to allow her husband to testify on the contents of the
psychiatric evaluation report “will set a very bad and dangerous
precedent because it abets circumvention of the rule’s intent in
preserving the sanctity, security and confidence to the relation of
physician and his patient.”
3.   Edgar Krohn, Jr contends that “the rules are very explicit: the
prohibition applies only to a physician. Thus x x x x the legal
prohibition to testify is not applicable to the case at bar where the
person sought to be barred from testifying on the privileged
communication is the husband and not the physician of the
petitioner.”
a.   Contends that a husband may testify against his wife in a
civil case filed by one against the other.
b.   Submits that privileged communication may be waived by
the person entitled, and Ma. Paz expressly did when she
gave her unconditional consent to the use of the psychiatric
evaluation report when it was presented to the Tribunal
Metropolitanum Matrimoniale which took it into account
among others in deciding the case and declaring their
marriage null and void.
5
Sec. 24. Disqualification by reason of privileged communication.—The following persons
cannot testify as to matters learned in confidence in the following cases: x x x x (c) A surgeon
authorized to practice medicine, surgery or obstetrics cannot in a civil case, without the
consent of the patient, be examined as to any advice or treatment given by him or any
information which he may have acquired in attending such patient in a professional capacity,
which information was necessary to enable him to act in that capacity, and which would
blacken the reputation of the patient.
c.   Ma. Paz failed to object because she merely said the report
was either unfounded or irrelevant.
d.   The Statement for the Record filed by Ma. Paz is in reality
an amendment of her Answer and should comply with the
provisions of the ROC, hence it was rightfully excluded.
4.   Indeed, statutes making communications between physician and
patient privileged are intended to inspire confidence in the patient
and encourage him to make a full disclosure to his physician of his
symptoms and condition.
5.   Consequently, this prevents the physician from making public
information that will result in humiliation, embarrassment, or
disgrace to the patient.
a.   For the patient should rest assured with the knowledge that
the law recognizes the communication as confidential, and
guards against the possibility of his feelings being shocked
or his reputation tarnished by their subsequent disclosure.
6.   Certain types of information communicated in the context of the
physician-patient relationship fall within the constitutionally
protected zone of privacy, including a patient’s interest in keeping
his mental health records confidential.
7.   Thus, it has been observed that the psychotherapist-patient privilege
is founded upon the notion that certain forms of antisocial behavior
may be prevented by encouraging those in need of treatment for
emotional problems to secure the services of a psychotherapist.
8.   Lim v. CA clearly lays down the requisites in order that the privilege
may be successfully invoked:
a.   the privilege is claimed in a civil case;
b.   the person against whom the privilege is claimed is one duly
authorized to practice medicine, surgery or obstetrics;
c.   such person acquired the information while he was attending
 to the patient in his professional capacity;

d.   the information was necessary to enable him to act in that

capacity; and,

e.   the information was confidential and, if disclosed, would

blacken the reputation (formerly character) of the patient.

9.   In the instant case, the person against whom the privilege is claimed
is not one duly authorized to practice medicine, surgery or obstetrics.

10.   He is simply the patient’s husband who wishes to testify on a

document executed by medical practitioners. Plainly and clearly, this
does not fall within the claimed prohibition.

11.   Neither can his testimony be considered a circumvention of the

prohibition because his testimony cannot have the force and effect of
the testimony of the physician who examined the patient and
executed the report.

12.   Counsel of Ma. Paz indulged heavily in objecting to the testimony of

private respondent on the ground that it was privileged. In failing to
object to the testimony on the ground that it was hearsay, counsel
waived his right to make such objection and, consequently, the
evidence offered may be admitted.
 010 GONZALES v. COURT OF APPEALS (CASTRO)
October 30, 1985 | Romero, J. | Testimonial evidence – Physian-patient privilege
PETITIONERS: CAROLINA ABAD GONZALES
RESPONDENTS: COURT OF APPEALS, HONORIA EMPAYNADO,
CECILIA H. ABAD, MARIAN H. ABAD and ROSEMARIE S. ABAD
SUMMARY: The ABADS (Ricardo Abads’s siblings) claim that they are the
only existing heirs of the decedent, Ricardo and therefore should inherit the
parcels of land he left. Furthermore, the ABADS claim that other properties were
only held by Ricardo but it rightfully belong to their mother, Lucia de Mesa.
Hence they sought the cancellation of title in their favor and for the extrajudicial
paritition to be approved Meanwhile, the EMPAYNADOS ( Ricardo Abad’s
natural children) wanted to annul the cancellation of titles and the extrajudicial
partition for they are the rightful heirs which were deprived of ther rights to the
estate. The Lower Court and the CA ruled in favor of the EMPAYNADOS. -The
evidence related part here is when the ABADS presented Dr. Aranas as their
FACTS:
witness to testify that it is impossible for Ricardo to be the father of the
EMPAYNADOS because of his sterility due to gonorrhea. The EMPAYNADOS
objected to this on the basis of rule 130 section 24 (c) on privileged
communication. The issue is WoN Dr. Aranas statement is inadmissible in
evidence – Yes because the following requisites for a privileged communication
are present in this case: a.) the action in which the advice or treatment given or
any information is to be used is a civil case; b.) the relation of physician and
patient existed between the person claiming the privilege or his legal
representative and the physician; c.) the advice or treatment given by him or any
information was acquired by the physician while professionally attending the
patient; d.) the information was necessary for the performance of his
professional duty; and e.) the disclosure of the information would tend to
blacken the reputation of the patient. The ABADS were also claiming that the
information as to Ricardo’s sterility will not blacken the reputation of the latter,
but the court said that that Ricardo Abad’s sterility arose when the latter
contracted gonorrhea, a fact which most assuredly blackens his reputation. In
fact, given that society holds virility at a premium, sterility alone, without the
attendant embarrassment of contracting a sexually-transmitted disease, would be
sufficient to blacken the reputation of any patient
DOCTRINE: The following are the requisites for a physician’s testimony to be
under the physician-patient privileged communication
a. the action in which the advice or treatment given or any information is to be
used is a civil case;
b. the relation of physician and patient existed between the person claiming the
privilege or his legal representative and the physician;
c. the advice or treatment given by him or any information was acquired by the
physician while professionally attending the patient;
d. the information was necessary for the performance of his professional duty;
and
e. the disclosure of the information would tend to blacken the reputation of the
patient.
1.   On April 18, 1972, petitioners Carolina Abad Gonzales, Dolores de
Mesa Abad and Cesar de Mesa Tioseco sought the settlement of the
intestate estate of their brother, Ricardo de Mesa Abad (Herein referred as
the ABADS), before the then Court of First Instance of Manila.
2.   In their petition, docketed as Special Proceedings No. 86792, the ABADS
claimed that they were the only heirs of Ricardo de Mesa Abad, as the latter
allegedly died a bachelor, leaving no descendants or ascendants, whether
legitimate or illegitimate
3.   The ABADS then amended their petition by alleging that the real properties
covered by TCT Nos. 13530, 53671, and 64021, listed therein as belonging
to the decedent, were actually only administered by the latter, the true
owner being their late mother, Lucila de Mesa.
4.   On June 16, 1972, the trial court appointed Cesar de Mesa Tioseco as
administrator of the intestate estate of Ricardo de Mesa Abad.
5.   Meanwhile, on May 2, 1972, the ABADS executed an extrajudicial
settlement of the estate of their late mother Lucila de Mesa, copying therein
the technical descriptions of the lots covered by TCT Nos. 13530, 53671,
and 64021. By virtue thereof, the Register of Deeds cancelled the above-
mentioned TCTs in the name of Ricardo Abad and issued, in lieu thereof,
TCT No. 108482 in the name of Dolores de Mesa Abad, TCT No. 108483
in the name of Cesar de Mesa Tioseco and TCT No. 108484 in the name of
Carolina Abad Gonzales. The three promptly executed real estate mortgages
over the real properties in favor of Mrs. Josefina Viola, the wife of their
counsel, Escolastico Viola.
6.   On July 7, 1972, private respondents Honoria Empaynado, Cecilia
Abad Empaynado, and Marian Abad Empaynado (herein referred to as
 EMPAYNADOS) filed a motion to set aside proceedings and for leave to
file opposition in Special Proceedings No. 86792. In their motion, they
alleged that Honoria Empaynado had been the common-law wife of Ricardo
Abad for twenty-seven years before his death, or from 1943 to 1971, and
that during these period, their union had produced two children, Cecilia
Abad Empaynado and Marian Abad Empaynado. The EMPAYNADOS also
disclosed the existence of Rosemarie Abad, a child allegedly fathered by
Ricardo Abad with another woman, Dolores Saracho. As the law awards the
entire estate to the surviving children to the exclusion of collateral relatives,
the EMPAYNADOS charged the ABADS with deliberately concealing the
existence of said three children in order to deprive the latter of their rights
to the estate of Ricardo Abad.
7.   Later on the EMPAYNADOS filed a motion to withdraw their first motion
and, in lieu thereof, filed a motion for reconsideration praying that Cecilia
Abad be appointed administrator instead of Cesar Tioseco.
8.   The trial court denied the EMPAYNADOS motion to remove Cesar
Tioseco as administrator, but allowed them to appear in the proceedings to
establish their right as alleged heirs of Ricardo Abad.
9.   The EMPAYNADOS later discovered that the ABADS had managed to
cancel TCT Nos. 13530, 53671, and 64021 through the stratagem of extra-
judicially partitioning their mother’s estate.
10.   Accordingly, on October 4, 1973, the EMPAYNADOS filed a motion to
annul the extra-judicial partition executed by ABADS, as well as TCT Nos.
108482, 108483, and 108484, the Torrens titles issued in substitution of
TCT Nos. 13530, 53671, and 64021 and the real estate mortgages
constituted by the latter on said properties.
11.   After due trial the lower court rendered the following judgment:
(1) Declaring Cecilia E. Abad, Marian E. Abad and Rosemarie S. Abad
acknowledged natural children of the deceased Ricardo M. Abad;
(2) Declaring said acknowledged natural children, namely: Cecilia E.
Abad, Marian E. Abad, and Rosemarie S. Abad the only surviving legal
heirs of the deceased Ricardo M. Abad and as such entitled to succeed
to the entire estate of said deceased, subject to the rights of Honoria
Empaynado, if any, as co-owner of any of the property of said estate that
may have been acquired thru her joint efforts with the deceased during the
period they lived together as husband and wife;
(3) Denying the petition of decedents collateral relatives, namely:
Dolores M. Abad, Cesar M. Tioseco and Carolina M. Abad to be
declared as heirs and excluding them from participating in the
administration and settlement of the estate of Ricardo Abad;
(4) Appointing Honoria Empaynado as the administratrix in this intestacy
with a bond of THIRTY THOUSAND (P30,000.00) PESOS; and
(5) Ordering Cesar Tioseco to surrender to the new administratrix all
property or properties, monies and such papers that came into his
possession by virtue of his appointment as administrator, which
appointment is hereby revoked.
12.   The trial court, likewise, found in favor of EMPAYNADOS with respect to
the latters motion for annulment of certain documents. On November 19,
1974, it rendered the following judgment: (in summary, declaring the
cancellation of title by the ABADS and their extrajudicial settlement void)
13.   The ABADS then filed a motion for reconsideration of the first decision of
the trial court which was denied by the trial court. Their notice of appeal
was also denied for being filed out of time. (several appeals were made
subsequent to this which were also dismissed because they were filed out of
time) but later on the trial court elevated to the appellate court the issue as
the ABADS instituted a certiorari and mandamus proceedings with the CA.
14.   CA Rendered judgment denying the appeal for lack of merit
a.   Declaring Cecilia, Marian, and Rosemarie as the only surviving
heirs of Ricardo
b.   Declaring the extrajudicial parititon and cancellation of TCT’s null
and void
c.   Denying the appeal of the ABAD siblings and CESAR TIOSECO
15.   Hence this petition
ISSUE/s:
1.   WoN CA and Trial Court erred in holding that respondents
(EMPAYNADOS) are the acknowledged natural children of the deceased -
No because sufficient evidence were proven (statement of income,
insurance policies, trust fund showing that Ricardo recognized his daughters
with Honoria)
2.   WoN the statement of DR. ARENAS saying that RICARDO is sterile
because of gonorrhea and therefore impossible to be the EMPAYNADOs’
father is admissible in evidence – No, because the four requisistes of
privilege communication are present and it clearly blackens the reputation
of the deceased
RULING: WHEREFORE, premises considered, the instant petition is hereby
DENIED. The decision of the Court of Appeals in CA-G.R. CV No. 30184 dated
October 19, 1994 is AFFIRMED with the MODIFICATION that the affirmance of
the Order dated March 21, 1975 denying the appeal of Dolores de Mesa Abad and
Cesar de Mesa Tioseco for being filed out of time is SET ASIDE. Costs against
petitioners.
SO ORDERED.
RATIO:
1.   The ABADS in contesting the respondent EMPAYNADOS filiation
submits the following startling theoy that the husband of Honoria
Empaynado, Jose Libunao was still alive when Cecilia and Marian were
born
2.   It is undisputed that prior to her relationship with Ricardo Abad, Honoria
Empaynado was married to Jose Libunao, their union having produced three
children, Angelita, Cesar, and Maria Nina, prior to the birth of Cecilia and
Marian. But while the EMPAYNADOS claim that Jose Libunao died in
1943, ABADS claim that the latter died sometime in 1971.
3.   The date of Jose Libunaos death is important, for if he was still alive in
1971, and given that he was legally married to Honoria Empaynado, the
presumption would be that Cecilia and Marian are not Ricardo Abads
children with the latter, but of Jose Libunao and Honoria Empaynado.
Article 256, the applicable provision of the Civil Code, provides: The child
shall be presumed legitimate, although the mother may have declared
against its legitimacy or may have been sentenced as an adulteress.
4.   To bolster their theory, the ABADS presented in evidence the application
for enrolment at MAPUA of Angelita accomplished in 1956
5.   The ABADS claim that ad Jose Libunao been dead during the time when
said applications were accomplished, the enrolment forms of his children
would have stated so. These not being the case, they conclude that Jose
Libunao must have still been alive in 1956 and 1958.
6.   Additionally, the ABADS presented the joint affidavit of Juan Quiambao
and Alejandro Ramos stating that to their knowledge Jose Libunao had died
in 1971, leaving as his widow, Honoria Empaynado, and that the former had
been interred at the Loyola Memorial Park.
7.   Lastly, Dr. Pedro Arenas, Ricardo Abad’s physician was presented by the
ABADS and he declared that in 1935, he had examined Ricardo Abad and
found him to be infected with gonorrhea, and that the latter had become
sterile as a consequence thereof.
8.   The court finds no justifiable reason to reverse the findings of RTC and CA
9.   First, the evidence presented by the ABADS to prove that Jose Libunao
died in 1971 are, to say the least, far from conclusive. Failure to indicate on
an enrolment form that one’s parent is deceased is not necessarily proof that
said parent was still living during the time said form was being
accomplished. Furthermore, the joint affidavit of Juan Quiambao and
Alejandro Ramos as to the supposed death of Jose Libunao in 1971 is
not competent evidence to prove the latters death at that time, being
merely secondary evidence thereof. Jose Libunaos death certificate
would have been the best evidence as to when the latter died.
10.   The ABADS have, however, inexplicably failed to present the same,
although there is no showing that said death certificate has been lost or
destroyed as to be unavailable as proof of Jose Libunaos death. More
telling, while the records of Loyola Memorial Park show that a certain Jose
Bautista Libunao was indeed buried there in 1971, this person appears to be
different from Honoria Empaynados first husband, the latters name being
Jose Santos Libunao. Even the name of the wife is different. Jose Bautista
Libunaos wife is listed as Josefa Reyes while the wife of Jose Santos
Libunao was Honoria Empaynado.
11.   IMPORTANT ON TESTIMONIAL EVIDENCE: As to Dr. Arenas
affidavit, the same was objected to by the EMPAYNADOS as being
privileged communication under Section 24 (c), Rule 130 of the Rules of
Court.
12.   The rule on confidential communications between physician and patient
requires that:
a.   the action in which the advice or treatment given or any
information is to be used is a civil case;
b.   the relation of physician and patient existed between the person
claiming the privilege or his legal representative and the physician;
c.   the advice or treatment given by him or any information was
acquired by the physician while professionally attending the
patient;
d.   the information was necessary for the performance of his
professional duty; and
e.   the disclosure of the information would tend to blacken the
 reputation of the patient.
13.   The ABADS do not dispute that the affidavit meets the first four requisites.
They assert, however, that the finding as to Ricardo Abads sterility does not
blacken the character of the deceased.
earlier, the findings of fact by the trial court are entitled to great weight and
should not be disturbed on appeal, it being in a better position to examine
the real evidence, as well as to observe the demeanor of the witnesses while
testifying in the case.

14.   The ABADS conveniently forget that Ricardo Abads sterility arose
when the latter contracted gonorrhea, a fact which most assuredly
blackens his reputation. In fact, given that society holds virility at a
premium, sterility alone, without the attendant embarrassment of
contracting a sexually-transmitted disease, would be sufficient to
blacken the reputation of any patient. We thus hold the affidavit
inadmissible in evidence. And the same remains inadmissible in evidence,
notwithstanding the death of Ricardo Abad.

15.   In the case of Westover vs. Aetna Life Insurance Company, 99 N.Y. 59, it
was pointed out that: The privilege of secrecy is not abolished or terminated
because of death as stated in established precedents. It is an established rule
that the purpose of the law would be thwarted and the policy intended to be
promoted thereby would be defeated, if death removed the seal of secrecy,
from the communications and disclosures which a patient should make to
his physician. After one has gone to his grave, the living are not permitted
to impair his name and disgrace his memory by dragging to light
communications and disclosures made under the seal of the statute.

16.   Given the above disquisition, it is clearly apparent that ABADS have failed
to establish their claim by the quantum of evidence required by law. On the
other hand, the evidence presented by EMPAYNADOS overwhelmingly
prove that they are the acknowledged natural children of Ricardo Abad.

17.   First, Ricardo declared in his statements of income and assets that his
legitimate wife was Honoria Empaynado and his legitimate dependents
Cecilia, Marian, and Rosemaria

18.   Second, Ricaro insured his daughters Cecilia and Marian and also the
opening of the trust fund wherein the said trust fund is payable to the
daughters

19.   As to ABADS claim that the properties in the name of Ricardo Abad
actually belong to their mother Lucila de Mesa, both the trial court and the
appellate court ruled that the evidence presented by private respondents
proved that said properties in truth belong to Ricardo Abad. As stated
 ALMONTE v. VASQUEZ (Salve)
May 23, 1995 | Mendoza, J. | Government privilege
PETITIONER: Commissioner Jose T. Almonte et al
RESPONDENTS: Cornado M. Vasquez et al
SUMMARY: Ombudsman issued a subpoena duces tecum to EIIB, specifically
Rogado and Rivera, chief accountant and record custodian, to produce "all
documents relating to Personal Services Funds for the year 1988" and all evidence
such as vouchers from enforcing his orders pursuant to an anonymous letter letter
alleging that funds representing savings from unfilled positions in the EIIB had been
illegally disbursed. Almonte, as the former Commissioner of EIIB, moved to quash
the said subpoena duces tecum arguing that Rogado and Rivera were EIIB
employees under their supervision and that the Ombudsman was doing indirectly
what he could not do directly, i.e., compelling them to produce evidence against
themselves. 1. WoN Almonte et al can be ordered to produce documents relating to
personal services and salary vouchers of EIIB employees on the plea that such
documents are classified. – YES, because no claim that military or diplomatic secrets
will be disclosed by the production of records pertaining to the personnel of the EIIB
nor any law or regulation considers personnel records of the EIIB as classified
information. The need for the documents outweighs the claim of confidentiality of
Almonte et al as the Ombudsman’s duty to investigate the complaint that there were
in 1988 unfilled positions in the EIIB for which continued funding was received by
its officials and put to illegal use still remains, unlike the reasons for claim
confidentiality must have faded 7 years later.
Kapunan, dissenting: Disclosure of the documents as required by the Ombudsman
would necessarily defeat the legal mandate of the EIIB as the intelligence arm of the
executive branch of government relating to matters affecting the economy of the
nation. As such, EIIB’s functions are related to matters affecting national security.
DOCTRINE: At common law a governmental privilege against disclosure is
recognized with respect to state secrets bearing on military, diplomatic and similar
matters. This privilege is based upon public interest of such paramount importance as
in and of itself transcending the individual interests of a private citizen, even though,
as a consequence thereof, the plaintiff cannot enforce his legal rights.
Where the claim of confidentiality does not rest on the need to protect military,
diplomatic or other national security secrets but on a general public interest in the
confidentiality of his conversations, courts have declined to find in the Constitution
an absolute privilege of the President against a subpoena considered essential to the
enforcement of criminal laws.
FACTS:
1.   This is a petition for certiorari, prohibition, and mandamus to annul the
subpoena duces tecum and orders issued by Ombudsman, requiring Nerio
Rogado and Elisa Rivera, as chief accountant and record custodian, respectively,
of the Economic Intelligence and Investigation Bureau (EIIB) to produce "all
documents relating to Personal Services Funds for the year 1988" and all
evidence such as vouchers from enforcing his orders.
2.   Jose T. Almonte was formerly Commissioner of the EIIB, while Villamor C.
Perez is Chief of the EIIB’s Budget and Fiscal Management Division.
3.   The subpoena duces tecum was issued by the Ombudsman in connection with
his investigation of an anonymous letter alleging that funds representing savings
from unfilled positions in the EIIB had been illegally disbursed.
4.   The letter, purporting to have been written by an employee of the EIIB and a
concerned citizen, was addressed to the Secretary of Finance, with copies
furnished several government offices, including the Office of the Ombudsman.
5.   The letter mentioned of 190 dismissed personnel, question on the disbursement
of savings, amounts given to payments of 35 mini UZI (firearms), Maxima ‘87
for personal use of the Commissioner.
6.   Almonte denied that as a result of the separation of personnel, the EIIB had
made some savings. he averred that the only funds released to his agency by the
Department of Budget and Management (DBM) were those corresponding to
947 plantilla positions which were filled. he also denied that there were "ghost
agents" in the EIIB and claimed that disbursements for "open" (i.e., "covert"
personnel) plantillas of the agency had been cleared by the Commission on
Audit (COA); that the case of the 30 Uzis had already been investigated by
Congress, where it was shown that it was not the EIIB but an agent who had
spent for the firearms and they were only loaned to the EIIB pending
appropriation by Congress; that, contrary to the charge that a Maxima car had
been purchased for his use, he was using a government issued car from the
NICA
7.   The Graft Investigation Officer of the Ombudsman’s office, Jose F. Saño, found
the comments unsatisfactory, being "unverified and plying only on
generalizations without meeting specifically the points raised by complainant as
constitutive of the alleged anomalies
8.   Saño ordered a preliminary investigation, subpoena to Almonte and Perez,
requiring them to submit their counter-affidavits and the affidavits of their
witnesses and subpoena duces tecum to the Chief of the EIIB’s Accounting
Division ordering him to bring "all documents relating to Personal Services
Funds for the year 1988 and all evidence, such as vouchers (salary) for the
whole plantilla of EIIB for 1988."
9.   Almonte moved to quash the subpoena. Ombudsman granted the granted the
motion to quash the subpoena in view of the fact that there were no affidavits
filed against petitioners.
10.   But he denied their motion to quash the subpoena duces tecum. Ombudsman
ruled that Almonte were not being forced to produce evidence against
themselves, since the subpoena duces tecum was directed to the Chief
Accountant, Nerio Rogado.
11.   Almonte and Perez moved for a reconsideration, arguing that Rogado and
 Rivera were EIIB employees under their supervision and that the Ombudsman
was doing indirectly what he could not do directly, i.e., compelling them to
produce evidence against themselves.
ISSUE/s:
30.   1. WoN Almonte et al can be ordered to produce documents relating to personal
services and salary vouchers of EIIB employees on the plea that such documents
are classified. – YES, because no claim that military or diplomatic secrets will
be disclosed by the production of records pertaining to the personnel of the EIIB
nor any law or regulation considers personnel records of the EIIB as classified
information.
RULING: WHEREFORE, the petition is DISMISSED, but it is directed that the
inspection of subpoenaed documents be made personally in camera by the
Ombudsman, and with all the safeguards outlined in this decision.
RATIO:
31.   Disclosure of the documents in question is resisted on the ground that
"knowledge of EIIB’s documents relative to its Personal Services Funds and its
plantilla . . . will necessarily [lead to] knowledge of its operations, movements,
targets, strategies, and tactics and the whole of its being" and this could "destroy
the EIIB."
32.   At common law a governmental privilege against disclosure is recognized with
respect to state secrets bearing on military, diplomatic and similar matters. This
privilege is based upon public interest of such paramount importance as in and
of itself transcending the individual interests of a private citizen, even though, as
a consequence thereof, the plaintiff cannot enforce his legal rights.
33.   Where the claim of confidentiality does not rest on the need to protect military,
diplomatic or other national security secrets but on a general public interest in
the confidentiality of his conversations, courts have declined to find in the
Constitution an absolute privilege of the President against a subpoena
considered essential to the enforcement of criminal laws.
34.   In the case at bar, there is no claim that military or diplomatic secrets will be
disclosed by the production of records pertaining to the personnel of the EIIB.
Indeed, EIIB’s function is the gathering and evaluation of intelligence reports
and information regarding "illegal activities affecting the national economy,
such as, but not limited to, economic sabotage, smuggling, tax evasion, dollar
salting.
35.   Nor has our attention been called to any law or regulation which considers
personnel records of the EIIB as classified information.
36.   The only item of expenditure which should be treated as strictly confidential
because it falls under the category of classified information is that relating to
purchase of information and payment of rewards. However, reasonable records
should be maintained and kept for inspection of the Chairman, Commission on
Audit or his duly authorized representative. All other expenditures are to be
considered unclassified supported by invoices, receipts and other documents,
and, therefore, subject to reasonable inquiry by the Chairman or his duly
authorized representative.
37.   Ombudsman is investigating a complaint that several items in the EIIB were
filled by fictitious persons and that the allotments for these items in 1988 were
used for illegal purposes
38.   His need for the documents thus outweighs the claim of confidentiality of
petitioners. What is more, while there might have been compelling reasons for
the claim of privilege in 1988 when it was asserted by Almonte et al, now, seven
years later, these reasons may have been attenuated, if they have not in fact
ceased.
39.   Ombudsman’s duty to investigate the complaint that there were in 1988 unfilled
positions in the EIIB for which continued funding was received by its officials
and put to illegal use, remains.
40.   Above all, even if the subpoenaed documents are treated as presumptively
privileged, this decision would only justify ordering their inspection in camera
but not their nonproduction.
41.   Nor is there violation of petitioners’ right to the equal protection of the laws.
Petitioners complain that "in all forum and tribunals . . . the aggrieved parties . .
. can only hale respondents via their verified complaints or sworn statements
with their identities fully disclosed," while in proceedings before the Office of
the Ombudsman anonymous letters suffice to start an investigation. In the first
place, there can be no objection to this procedure because it is provided in the
Constitution itself.
42.   Finally, it is contended that the issuance of the subpoena duces tecum would
violate petitioners’ right against self-incrimination. It is enough to state that the
documents required to be produced in this case are public records and those to
whom the subpoena duces tecum is directed are government officials in whose
possession or custody the documents are. Moreover, if, as petitioners claim the
disbursement by the EII of funds for personal service has already been cleared
by the COA, there is no reason why they should object to the examination of the
documents by respondent Ombudsman.chanrobles law library : red
43.   Kapunan, dissenting: Disclosure of the documents as required by the
Ombudsman would necessarily defeat the legal mandate of the EIIB as the
intelligence arm of the executive branch of government relating to matters
affecting the economy of the nation. As such, EIIB’s functions are related to
matters affecting national security.
44.   The determination, by the executive branch, through its appropriate agencies, of
a question as affecting the national security is a policy decision for which this
Court has neither the competence nor the mandate to infringe upon.
45.   In the absence of a clear showing a grave abuse of discretion on the part of the
Executive, acting through its (national security) agencies, I am of the opinion
that we cannot interfere with a determination, properly made, on a question
affecting economic security lest we are prepared to ride roughshod over certain
prerogatives of our political branches.
46.   In an area obviously affecting the national security, disclosure of confidential
information on the promptings of some dissatisfied employees would potentially
 disturb a number of carefully laid-out operations dependent on secrecy and I am
not prepared to do this
47.   The confidentiality privilege invoke by Almonte et al attaches in the exercise of
the functions of the EIIB, as presidential immunity is bestowed by reason of the
political functions of the Chief Executive, as a separate and co-equal branch of
government.
48.   In the present case, disclosure of information to any other agency would
unnecessarily expose the covert operations of EIIB, as a government agency
charged with national security functions.chanrobles law lib
 012 NERI VS. SENATE COMMITTEE ON ACCOUNTABILITY OF PUBLIC
OFFICERS (Chung)
March 25, 2008 | Leonardo-De Castro | Executive Privilege
PETITIONER: Romulo L. Neri
RESPONDENT: Senate Committee on Accountability of Public Officers and
Investigations, Senate Committee on Trade and Commerce, and Senate Committee
on National Defense and Security
SUMMARY:
On September 26, 2007, Neri; appeared before the respondent committees and
testified for about 11 hours on the matters concerning the National Broadband
Project, a project awarded to a Chinese company ZTE. Neri therein disclosed that
when he was offered by Abalos a bribe of 200 million pesos to approve the project,
he informed PGMA of the attempt and she instructed him not to accept the bribe.
However when he was probed further on PGMA’s and petitioner’s discussions
relating to the NBN Project, petitioner refused to answer, invoking exec privilege.
The questions that he refused to answer were:
1.   whether or not PGMA followed up the NBN Project.
2.   whether or not PGMA directed him to prioritize it.
3.   whether or not PGMA directed him to approve it.
Neri did not appear before the respondent committees upon orders of the President
invoking exec privilege. He explained that the questions asked of him are covered
by exec privilege. He was cited in contempt of respondent committees and an order
for his arrest and detention until such time that he would appear and give his
testimony.
ISSUE: Whether or not the three questions that petitioner Neri refused to answer
were covered by executive privilege, making the arrest order issued by the
respondent Senate Committees void.
RULING:
The three elements needed to be complied with in order for the claim to executive
privilege to be valid:
1.)   the protected communication must relate to a quintessential and non-
delegable presidential power;
2.)   it must be authored, solicited, and received by a close advisor of the
President or the President himself. The judicial test is that an advisor must
be in “operational proximity” with the President; and,
3.)   it may be overcome by a showing of adequate need, such that the
information sought “likely contains important evidence,” and by the
unavailability of the information elsewhere by an appropriate investigating
authority.
As the the first element: SATISFIED à Executive Secretary Ermita claimed
executive privilege on the argument that the communications elicited by the three
questions “fall under conversation and correspondence between the President and
public officials” necessary in “her executive and policy decision-making process,”
and that “the information sought to be disclosed might impair our diplomatic as well
as economic relations with the People’s Republic of China.”
SECOND ELEMENT: SATISFIED à the communications were received by a
close advisor of the President. Under the “operational proximity” test, petitioner
Neri can be considered a close advisor, being a member of the President’s Cabinet.
THIRD ELEMENT: SATISFIED à there is no adequate showing of a compelling
need that would justify the limitation of the privilege and of the unavailability of the
information elsewhere by an appropriate investigating authority.
DOCTRINE: The three elements needed to be complied with in order for the claim
to executive privilege to be valid:
1.)   the protected communication must relate to a quintessential and non-
delegable presidential power;
2.)   it must be authored, solicited, and received by a close advisor of the
President or the President himself. The judicial test is that an advisor must
be in “operational proximity” with the President; and,
3.)   it may be overcome by a showing of adequate need, such that the
information sought “likely contains important evidence,” and by the
unavailability of the information elsewhere by an appropriate investigating
authority.
FACTS:
•   Petitioner Romulo Neri, then Director General of the National Economic
and Development Authority (NEDA), was invited by the respondent Senate
Committees to attend their joint investigation on the alleged anomalies in
the National Broadband Network (NBN) Project. This project was
contracted by the Philippine Government with the Chinese firm Zhong Xing
Telecommunications Equipment (ZTE), which involved the amount of
US$329,481,290.
•   When he testified before the Senate Committees, he disclosed that then
Commission on Elections Chairman Benjamin Abalos, brokering for ZTE,
offered him P200 million in exchange for his approval of the NBN Project.
•   He further narrated that he informed President Gloria Macapagal-Arroyo
about the bribery attempt and that she instructed him not to accept the bribe.
•   However, when probed further on what they discussed about the NBN
Project, petitioner refused to answer, invoking “executive privilege.” In
•   particular, he refused to answer the questions on
1.) whether or not the President followed up the NBN Project,
2.) whether or not she directed him to prioritize it, and
3.) whether or not she directed him to approve it.
•   Later on, respondent Committees issued a Subpoena Ad Testificandum to
petitioner, requiring him to appear and testify on 20 November 2007.
However, Executive Secretary Eduardo Ermita sent a letter dated 15
November to the Committees requesting them to dispense with Neri’s
testimony on the ground of executive privilege. Ermita invoked the
 privilege on the ground that “the information sought to be disclosed might
impair our diplomatic as well as economic relations with the People’s
Republic of China,” and given the confidential nature in which these
information were conveyed to the President, Neri “cannot provide the
Committee any further details of these conversations, without disclosing the
very thing the privilege is designed to protect.” Thus, on 20 November, Neri
did not appear before the respondent Committees.
•   On 22 November, respondents issued a Show Cause Letter to Neri requiring
him to show cause why he should not be cited for contempt for his failure to
attend the scheduled hearing on 20 November. On 29 November, Neri
replied to the Show Cause Letter and explained that he did not intend to
snub the Senate hearing, and requested that if there be new matters that
were not yet taken up during his first appearance, he be informed in advance
so he can prepare himself. He added that his non-appearance was upon the
order of the President, and that his conversation with her dealt with delicate
and sensitive national security and diplomatic matters relating to the impact
of the bribery scandal involving high government officials and the possible
loss of confidence of foreign investors and lenders in the Philippines.
Respondents found the explanation unsatisfactory, and later on issued an
Order citing Neri in contempt and consequently ordering his arrest and
detention at the Office of the Senate Sergeant-At-Arms until he appears and
gives his testimony.
•   Neri filed the petition asking the Court to nullify both the Show Cause
Letter and the Contempt Order for having been issued with grave abuse of
discretion amounting to lack or excess of jurisdiction, and stressed that his
refusal to answer the three questions was anchored on a valid claim to
executive privilege in accordance with the ruling in the landmark case of
Senate vs. Ermita (G.R. No. 169777, 20 April 2006).
•   For its part, the Senate Committees argued that they did not exceed their
authority in issuing the assailed orders because there is no valid justification
for Neri’s claim to executive privilege. In addition, they claimed that the
refusal of petitioner to answer the three questions violates the people’s right
to public information, and that the executive is using the concept of
executive privilege as a means to conceal the criminal act of bribery in the
highest levels of government.
ISSUE: Whether or not the three questions that petitioner Neri refused to answer
were covered by executive privilege, making the arrest order issued by the
respondent Senate Committees void.
HELD: The divided Supreme Court (voting 9-6) was convinced that the three
questions are covered by presidential communications privilege, and that this
privilege has been validly claimed by the executive department, enough to shield
petitioner Neri from any arrest order the Senate may issue against him for not
answering such questions.
The petition was granted. The subject Order dated January 30, 2008, citing petitioner
in contempt of the Senate Committee and directing his arrest and detention was
nullified.
RULING:
•   Citing the case of United States vs. Nixon, the Court laid out the three
elements needed to be complied with in order for the claim to executive
privilege to be valid. These are:
1.) the protected communication must relate to a quintessential and
non-delegable presidential power;
2.) it must be authored, solicited, and received by a close advisor
of the President or the President himself. The judicial test is that an
advisor must be in “operational proximity” with the President; and,
3.) it may be overcome by a showing of adequate need, such that
the information sought “likely contains important evidence,” and
by the unavailability of the information elsewhere by an
appropriate investigating authority.
•   It must be stressed that the revocation of E.O. 464 does not in any way
diminish our concept of executive privilege. This is because this concept
has Constitutional underpinnings. Unlike the United States which has
further accorded the concept with statutory status by enacting the Freedom
of Information Act and the Federal Advisory Committee Act, the
Philippines has retained its constitutional origination, occasionally
interpreted only by this Court in various cases. The most recent of these is
the case of Senate v. Ermita where this Court declared unconstitutional
substantial portions of E.O. 464. In this regard, it is worthy to note that
Executive Ermitas Letter dated November 15, 2007 limits its bases for the
claim of executive privilege to Senate v. Ermita, Almonte v. Vasquez, and
Chavez v. PEA. There was never a mention of E.O. 464.
•   While these cases, especially Senate v. Ermita, have comprehensively
discussed the concept of executive privilege, we deem it imperative to
explore it once more in view of the clamor for this Court to clearly define
the communications covered by executive privilege.
•   The Nixon and post-Watergate cases established the broad contours of the
presidential communications privilege. In United States v. Nixon, the U.S.
Court recognized a great public interest in preserving the confidentiality of
conversations that take place in the Presidents performance of his official
duties. It thus considered presidential communications as presumptively
privileged. Apparently, the presumption is founded on the Presidents
generalized interest in confidentiality. The privilege is said to be necessary
to guarantee the candor of presidential advisors and to provide the President
and those who assist him with freedom to explore alternatives in the process
of shaping policies and making decisions and to do so in a way many would
be unwilling to express except privately.
•   In In Re: Sealed Case, the U.S. Court of Appeals delved deeper. It ruled that
there are two (2) kinds of executive privilege; one is the presidential
 communications privilege and, the other is the deliberative process answers to the three questions in the enactment of any law under Sec. 21,
privilege. The former pertains to communications, documents or other Art. VI. Instead, the questions veer more towards the exercise of the
materials that reflect presidential decision-making and deliberations and legislative oversight function under Sec. 22, Art. VI. As ruled in Senate vs.
that the President believes should remain confidential. The latter includes Ermita, “the oversight function of Congress may be facilitated by
advisory opinions, recommendations and deliberations comprising part of a compulsory process only to the extent that it is performed in pursuit of
process by which governmental decisions and policies are formulated. legislation.”
•   Accordingly, they are characterized by marked distinctions. •   Neri’s refusal to answer based on the claim of executive privilege does
Presidential communications privilege applies to decision-making of the not violate the people’s right to information on matters of public
President while, the deliberative process privilege, to decision-making concern simply because Sec. 7, Art. III of the Constitution itself
of executive officials. The first is rooted in the constitutional principle of provides that this right is “subject to such limitations as may be
separation of power and the Presidents unique constitutional role; the provided by law.”
second on common law privilege. Unlike the deliberative process privilege,
the presidential communications privilege applies to documents in their
entirety, and covers final and post-decisional materials as well as pre-
deliberative ones As a consequence, congressional or judicial negation of
the presidential communications privilege is always subject to greater
scrutiny than denial of the deliberative process privilege.
•   Turning on who are the officials covered by the presidential
communications privilege, In Re: Sealed Case confines the privilege only to
White House Staff that has operational proximity to direct presidential
decision-making. Thus, the privilege is meant to encompass only those
functions that form the core of presidential authority, involving what the
court characterized as quintessential and non-delegable Presidential power,
such as commander-in-chief power, appointment and removal power, the
power to grant pardons and reprieves, the sole-authority to receive
ambassadors and other public officers, the power to negotiate treaties, etc.
•   In the present case, Executive Secretary Ermita claimed executive privilege
on the argument that the communications elicited by the three questions
“fall under conversation and correspondence between the President and
public officials” necessary in “her executive and policy decision-making
process,” and that “the information sought to be disclosed might impair our
diplomatic as well as economic relations with the People’s Republic of
China.” It is clear then that the basis of the claim is a matter related to the
quintessential and non-delegable presidential power of diplomacy or foreign
relations.
•   As to the second element, the communications were received by a close
advisor of the President. Under the “operational proximity” test, petitioner
Neri can be considered a close advisor, being a member of the President’s
Cabinet.
•   And as to the third element, there is no adequate showing of a compelling
need that would justify the limitation of the privilege and of the
unavailability of the information elsewhere by an appropriate investigating
authority. Presidential communications are presumptive privilege and that
the presumption can be overcome only by mere showing of public need by
the branch seeking access to such conversations. In the present case,
respondent Committees failed to show a compelling or critical need for the
 000 IN RE: Production of Court Records and Documents and the
Attendance of Court Officials and Employees as Witnesses under the
Subpoenas of February 10, 2012 and the Various Letters of the
Impeachment Prosecution Panel dated January 19 and 25, 2012.
(COSCOLLUELA)
14 February 2012 | Per Curiam | Judicial Privilege
SUMMARY: During the impeachment proceedings agains CJ Corona, the
Prosecution Panel sent letters to the SC requesting that the proseutors be
permitted to examine rollos of various cases and certified copies of the
Agenda Minutes of the Deliberations of FASAP v. PAL be given to the
House Impeachment Panel. The Impeachment Panel also requested for the
issuance of subpoena duces tecum and ad testificandum for the production of
records of cases and the attendance of Justices, officials and employees of
the SC, to testify on these records and cases. Presiding Senator Judge Enrile
denied the request as to the Justices. The Clerk of Court then brought the
Court’s attention to Subpeona Ad Testificandum et Duces Tecum and
Subpoena Ad Testificandum she received, commanding her to appear with
the documents.
The issue is WoN the the Court employees may be compelled to appear as
witnesses before the Impeachment Court and present the requested
documents and testify on these records.
NO.
1.   Because of the separation of powers of each branch of the
government and principle of comity. Just as much as the courts tread
lightly in exercising its discretion on executive/legislative matters,
the other branches of government should observe the principle of
comity by refraining from continuing with the acts questioned before
the courts. Where doubt exists, it is a weighing of the public interests
involved, as against guaranteed individual rights and the attendant
larger public interests, and it is the latter that should prevail.
2.   The right to information is not absolute. The Court has adopted a
policy of transparency with respect to documents in its custody. This
grant, however, is not as open nor as broad as its plain terms appear
to project, as it is subject to the limitations the laws and the Court’s
own rules provide. The basic underlying limitation is the need to
preserve and protect the integrity of the Court and the Judiciary’s
main adjudicative function. certain informations contained in the
records of cases before the SC are confidential and are exempt from
disclosure. The need arises from the dictates of the integrity of the
Court’s decision-making function which may be affected by the
disclosure of information. What applies to magistrates applies with
equal force to court officials and employees who are privy to these
deliberations. While the rules only speak of court deliberations, the
rule extends to documents and other communications which are part
of or are related to the deliberative process. The privilege insulates
the Judiciary from an improper intrusion into the functions of the
judicial branch. Two other grounds for denying access: 1)
disqualification by reason of privileged communication and 2)
pendency of an action or matter. The New Code of Judicial
Conduct for the Philippine Judiciary prohibits disclosure of
confidential information. This rule complements the rule of
evidence that disqualifies public officials from testifying on
information they acquire in confidence in the course of their
duties.
DOCTRINE: Members of the Court may not be compelled to testify in the
impeachment proceedings against the CJ or other Members of the Court
about information they acquired in the performance of their official function
of adjudication, such as information on how deliberations were conducted or
the material inputs that the justices used in decision-making, because the
end-result would be the disclosure of confidential information that could
subject them to criminal prosecution. Such act violates judicial privilege as it
pertains to the exercise of the constitutional mandate of adjudication. With
respect to Court officials and employees, the same rules on confidentiality
that apply to justices and judges apply to them.
FACTS:
46.   During the impeachment proceedings against CJ Corona, the
Prosecution Panel manifested that it would present 100 witnesses and
almost a thousand documents, the witnesses included Justices of the
SC, Court officials and employees.
47.   It was about this time that Hon. Joseph Emilio A. Abaya,
Congressman and Impeachment Prosecution Panel Manager of the
Impeachment Panel, sent the following letters to the SC requesting
the following actions:
a.   That the public prosecutors and private prosectors be
permitted to examine the rollo of FASAP v. PAL
b.   That certified copies of the Agenda and Minutes of the
Deliberations of FASAP v. PAL be given to the House
Impeachment Panel
 c.   That the public prosecutors and private prosecutors be
permitted to examine the rollo of Navarro v. Ermita
d.   That the public prosecutors and private prosecutors be
permitted to examine the rollo of Gutierrez v. House of
Representatives
e.   That the public prosecutors and private prosecutors be
permitted to examine the rollo of League of Cities v.
COMELEC.
48.   The Impeachment Panel requested for the issuance of subpoena
duces tecum and ad testificandum for the production of records of
cases and the attendance of Justices, officials and employees of the
SC, to testify on these records and cases.
49.   Presiding Senator Judge Juan Ponce Enrile issued an Order denying
the request for subpoena ad testificandum to Justices Villarama,
Sereno, Reyes and Velasco. Thus, the attendance of SC Justices
under compulsory process appears to be moot and academic.
50.   Clerk of Court Enriqueta Vidal brought the Court’s attention to the
Subpeona Ad Testificandum et Duces Tecum and Subpoena Ad
Testificandum she received, commanding her to appear with the
documents. The Impeachment Court directed the attendance of
witnesses Vidal nd Deputy Clerk of Court Felipa Anama, and the
production of documents per the subpoena ad testificandum et duces
tecum dated Feb. 9, 2012 in the case of FASAP v. PAL. There was
another subpoena ad testificandum dated Feb. 10, 2012 which
directed Vidal, in the case of former Pres. Arroyo and former First
Gentlemen Arroyo, to bring with her also various documents.
ISSUE/s:
45.   Whether or not the Court employees may be compelled to appear as
witnesses before the Impeachment Court and present the documents
and testify on these records — NO, the judicial privilege insulates
the Judiciary from an improper intrusion into the functions of the
judicial branch and shields the justices, judges and the court officials
and employees from public scrutiny or the pressure of public opinion
that would impare a judge’s ability to render impartial decisios.
RULING: WHEREFORE, on the basis of the above-cited laws, rules, jurisprudence and
principles, the Court resolves the matter of the House Impeachment Panel’s letters through as
follows:
A.
1.   On the letters dated January 19 and 25, 2012 sent in behalf of the House
Impeachment Panel, the Court cannot grant the requested examination of the FASAP
v. PAL38 rollo as this is still a pending case and the rollo contains privileged and
confidential materials. The Court, however, can issue certified true copies of the
Decisions, Orders and Resolutions it issued in the case and which have been
released to the parties, and certified copies of the parties’ pleadings and the letters of
Atty. Estelito Mendoza.
2.   On the letter of January 25, 2012, regarding the examination of the rollo of Navarro
v. Ermita39 (Dinagat case), the Court — although the Dinagat case is closed and
terminated — cannot grant the requested examination as the rollo contains
privileged and confidential information. The Court, however, can issue certified true
copies of the Decisions, Orders and Resolutions it issued in the case and which have
been released to the parties, and certified copies of the parties’ pleadings.
3.   On the letter of January 25, 2012, regarding the examination of the rollo of the case
of Ma. Merceditas N. Gutierrez v. The House of Representatives Committee on
Justice,40 this is a closed and terminated case. However, the court cannot still allow
examination of the rollo as it contains materials that are still covered by privilege or
are still considered confidential. The Court, however, if requested by the Prosecution
Panel, can issue certified true copies of the Decisions, Orders and Resolutions that
are now matters of public record, as well as certified copies of the parties’ pleadings.
4.   On the letter of January 19, 2012 in behalf of the Prosecution Panel in the case of
League of Cities v. COMELEC,41 this is still a pending case and the Court cannot
allow the examination of the rollo. The Court, if requested by the Prosecution Panel,
can provide certified true copies of its Decisions, Orders and Resolutions that have
been furnished the parties, and certified copies of the parties’ pleadings.
B. On the subpoena duces tecum et ad testificandum in the FASAP v. PAL case that is the
subject of the subpoena, the case is still pending. Therefore, all the requested documents
cannot be produced as discussed above.
The witness can consequently provide certified true copies to the Impeachment
Court of the Decisions, Orders and Resolutions furnished to the parties, as well as certified
copies of the parties’ pleadings and the letters of Atty. Estelito Mendoza.
The Court cannot as well waive the privileges attendant to the proposed testimony of
Clerk of Court Enriqueta E. Vidal and of the other Court officials and employees on matters
covered by privilege and confidentiality.
The documents directed to be produced by the subpoena duces tecum in the GMA
and Arroyo cases (G.R. Nos. 199034 and 199046) are listed in the attached Annex “A” hereof,
and are resolved in accordance with this listing. The witness can only testify on the documents
or records allowed under this listing.
C. The Clerk of Court is hereby DIRECTED:
1.   to PHOTOCOPY the non-confidential documents and records requested in the
letters of the House Impeachment Panel, if requested by the Prosecution Panel. She
shall as well provide these certified copies to the Impeachment Court pursuant to the
subpoena duces tecum, but shall exclude therefrom the documents and records
considered as confidential or privileged;
2.   to SERVE a copy of this Resolution immediately to the House Impeachment Panel
and to the Impeachment Court;
3.   to REPORT to the Court the results of its actions, under (1) and (2) above, as soon
as they are completed and no later than the deadline imposed by the Impeachment
 Court.
D. The Court’s Internal Rules and Revision of Rules Committees shall forthwith meet for the
alignment of the above discussed laws, rules and policies with the Internal Rules of the
Supreme Court and the Rules of Court, and to further discuss these rules and policies to the
end that the needs of transparency can fully meet, and be harmonized with, the requirements
of confidentiality.”
Given by the Supreme Court of the Philippines, this 14th day of February 2012. JJ. Leonardo-
De Castro, Brion, Peralta, Bersamin, Del Castillo, Abad, Villarama, Jr., Perez, Mendoza and
Reyes, concurring;
Notice of Resolution - 28 - February 14, 2012
Presiding Officer Carpio and J. Sereno, concurring under Separate Opinions; Chief Justice
Corona, inhibiting; JJ. Velasco, Jr. and Perlas- Bernabe, on official leave of absence.”
RATIO:
46.   Each branch is considered separate, co-equal, coordinate and
supreme within its own sphere, under the legal and political reality of
one overarching Constitution that governs one government and one
nation for whose benefit all the three separate branches must act with
unity.
47.   A lesser known but no less important aspect of the principle of
separation of powers is the principle of comity or the practice of
voluntarily observing inter-departmental courtesy in undertaking
their assigned constitutional duties for the harmonious working of
government.
a.   In appreacting the areas wholly assigned to a particular
branch for its sole and supreme exercise of discretion, the
courts tread carefully; they exercise restraint and intervene
only when the GAD is clear and even then must act with
carefully calibrated steps, safely and surely made within
constitutional bounds. The two other branches may also
observe the principle of comity by refraining from
continuing with the acts questioned before the courts. Where
doubt exists, it is a weighing of the public interests involved,
as against guaranteed individual rights and the attendant
larger public interests, and it is the latter that should prevail.
b.   A case in point is on the matter of impeachment whose trial
has been specifically assigned by the Constitution to the
Senate. Where doubt exists in an impeachment case, a
standard rule that should not be forgoteen is the need to
preserve the structure of a democratic and republican
government, particularly the check and balance that should
prevail.
48.   The right to information is not absolute. The Court has adopted a
policy of transparency with respect to documents in its custody. This
policy is embodied in Sec. 11 of Rule 136 of the Rules of Court.6
This grant, however, is not as open nor as broad as its plain terms
appear to project, as it is subject to the limitations the laws and the
Court’s own rules provide. The basic underlying limitation is the
need to preserve and protect the integrity of the Court and the
Judiciary’s main adjudicative function.
49.   Accordingly, certain informations contained in the records of cases
before the SC are confidential and are exempt from disclosure. The
need arises from the dictates of the integrity of the Court’s decision-
making function which may be affected by the disclosure of
information.
a.   The Internal Rules of the Supreme Court (IRSC) prohibits
the disclosure of:
i.   Result of the raffle of cases: only available to the
parties and their counsels
ii.   Actions taken by the Court on each cases included in
the agenda of the Court’s session: made available
only after the official release of the resolution
emobodying the Court action
iii.   Deliberation of the Members in court sessions on
cases and matters pending before it: traditionally
recognized as privileged communication so that the
Members of the Court may freely dicuss the issues
without fear of criticism (deliberative process
privilege).
50.   What applies to magistrates applies with equal force to court officials
and employees who are privy to these deliberations.
51.   While the IRSC only speaks of court deliberations, the rule extends
to documents and other communications which are part of or are
related to the deliberative process. The Code of Conduct for Court
Personnel provides that access shall be denied with respect to
information or records relating tod rafts of decisions, rulings, orders
or internal memorandums or internal reports. The Court excluded the
same information and records from public in the 2007 Resolution on
Access to Justice for the Poor Project.
a.   To qualify under the deliberative process privilege, the
document must be: 1) predicisional: precedes, in temporal
sequence, the decision to which it relates; 2) deliberative:
6 Section. 11. Certified copies.—The clerk shall prepare, for any person demanding the same,
a copy certified under the seal of the court of any paper, record, order, judgment, or entry in
his office, proper to be certified, for the fees prescribed by these rules.
 whether disclosure of the information would discourage
candid discussion
52.   The privilege insulates the Judiciary from an improper intrusion into
the functions of the judicial branch and shields the justices, judges
and the court officials and employees from public scrutiny or the
pressure of public opinion that would impare a judge’s ability to
render impartial decisios.
53.   Two other grounds for denying access: 1) disqualification by reason
of privileged communication and 2) pendency of an action or matter
a.   The New Code of Judicial Conduct for the Philippine
Judiciary prohibits disclosure of confidential information.7
b.   The rule complements the rule of evidence that disqualifies
public officials from testifying on information they acquire
in confidence in the course of their duties.8
c.   To ensure compliance, improper disclosure is punishable
under the RPC (Art. 229), RA 3019 or the Anti-Grant and
Corrupt Practices Act (Section 3 (k)), and RA 6713 or the
Code of Conduct and Ethical Standards for Public Official
Employees.
54.   Under the law, therefore, the Members of the Court may not be
compelled to testify in the impeachment proceedings against the
CJ or other Members of the Court about information they
acquired in the performance of their official function of
adjudication, such as information on how deliberations were
conducted or the material inputs that the justices used in
decision-making, because the end-result would be the disclosure
of confidential information that could subject them to criminal
prosecution. Such act violates judicial privilege (or the
equivalent of executive privilege) as it pertains to the exercise of
the constitutional mandate of adjudication. Justices of the Court
cannot be compelled to testify on matters relating to the internal
deliberations and actions of the Court, in the exercise of their
adjudicatory functions and duties. This is to be differentiated
from a situation where the testimony is on a matter which is
7 Section 9. Confidential information acquired by judges in their judicial capacity shall not be
used or disclosed for any other purpose related to their judicial duties.
8 Rules of Court, Rule 130, Section 24. Disqualification by reason of privileged
communication. – The following persons cannot testify as to matters learned in confidence in
the following cases:
(e) A public officer cannot be examined during his term of office or afterwards, as to
communications made to him in official confidence, when the court finds that the public
interest would suffer by the disclosure.
external to their adjudicatory functions and duties.
55.   Inter-departmental courtesy demands that the highest levels of each
department be exempt from the compulsory processes of the other
departments on matters related to the functions and duties of their
office.
56.   With respect to Court officials and employees, the same rules on
confidentiality that apply to justices and judges apply to them. They
are barred from disclosing (1) the result of the raffle of cases, (2) the
actions taken by the Court on each case included in the agenda of the
Court’s session, and (3) the deliberations of the Members in court
sessions on cases and matters pending before it. They are subject as
well to the disqualification by reason of privileged communication
and the sub judice rule.
57.   These privileges belong to the Judiciary and are for the Supreme
Court, and not for the individual justice, judge, or court official or
employees to waive. Thus, every proposed waiver must be referred
to the Supreme Court for its consideration and approval.
58.   Witnesses need not be summoned to testify on matters of public
record. These are the records that a government unit is required by
law to keep or which it is compelled to keep in the discharge of
duties imposed by law. A record is a public record within the
purview of a statute providing that books and records required by
law to be kept by a clerk may be received in evidence in any court if
it is a record which a public officer is required to keep and if it is
filled in such a manner that it is subject to public inspection. These
records, however, may be presented and marked in evidence only
where they are not excluded by reasons of privilege and the other
reasons discussed above.
ANNEX
Just in case Atty. Toto asks
List of privileged documents or communications not subject to disclosure:
1.   Court actions such as the result of the raffle of cases and the actions
taken by the Court on each case included in the agenda of the Court’s
session on acts done material to pending cases, except where a party
litigant requests information on the result of the raffle of the case,
pursuant to Rule 7, Section 3 of the IRSC;
2.   Court deliberations or the deliberations of the Members in court
sessions on cases and matters pending before the Court;
3.   Court records which are “predecisional” and “deliberative” in
nature, in particular, documents and other communications which are
part of or related to the deliberative process, i.e., notes, drafts,
research papers, internal discussions, internal memoranda, records of
internal deliberations, and similar papers.
4.   Confidential Information secured by justices, judges, court officials
and employees in the course of their official functions, mentioned in
(2) and (3) above, are privileged even after their term of office.
5.   Records of cases that are still pending for decision are privileged
materials that cannot be disclosed, except only for pleadings, orders
and resolutions that have been made available by the court to the
general public.
6.   The principle of comity or inter-departmental courtesy demands that
the highest officials of each department be exempt from the
compulsory processes of the other departments.
7.   These privileges belong to the Supreme Court as an institution, not to
any justice or judge in his or her individual capacity. Since the Court
is higher than the individual justices or judges, no sitting or retired
justice or judge, not even the Chief Justice, may claim exception
without the consent of the Court.
Documents requested:
February 9, 2012
1.   Records/Logbook of the Raffle Committee showing the assignent of
the FASAP case
2.   Letter of Atty. Estelito Mendoza addressed to the Clerk of Court
dated September 13, 2011 (copy furnished: The Hon. Chief Justice
Renato C. Corona), in connection with the FASAP case;
3.   Letter of Atty. Estelito Mendoza addressed to the Clerk of Court
dated September 20, 2011 (copy furnished: The Hon. Chief Justice
Renato C. Corona), in connection with the FASAP case;
4.   Letter of Atty. Estelito Mendoza addressed to the Clerk of Court
dated September 22, 2011 (copy furnished: The Hon. Chief Justice
Renato C. Corona), in connection with the FASAP case;
5.   Letter of Atty. Estelito Mendoza addressed to the Clerk of Court
dated September 16, 2011 (copy furnished: The Hon. Chief Justice
Renato C. Corona; Hon. Arturo D. Brion, Hon. Jose P. Perez, Hon.
Lucas P. Bersamin and Hon. Jose C. Mendoza), in connection with
the FASAP case.
February 10, 2012
1.   Supreme Court received (with time and date stamp) Petition for
Special Civil Actions for Certiorari and Prohibition with Prayer for
the Issuance of a Temporary Restraining Order (TRO) and/or Writ of
Preliminary Injunction filed by Gloria Macapagal Arroyo (G.R. No.
199034) (GMA TRO Petition), including the Annexes thereto;
2.   Supreme Court received (with time and date stamp) Petition for
Special Civil Actions for Certiorari and Prohibition with Prayer for
the Issuance of a TRO and/or Writ of Preliminary Injunction
docketed as G.R. No. 199046 (Mike Arroyo TRO Petition),
including the Annexes thereto;
3.   Respondent Corona’s travel order or leave applied for within the
month of November 2011;
4.   Minutes of the Supreme Court Raffle Committee which handled the
GMA and Mike Arroyo TRO Petitions;
5.   Appointment or Assignment of the Member-in-Charge of the GMA
and Mike Arroyo TRO Petitions;
6.   Resolution dated November 15, 2011 in the GMA and Mike Arroyo
TRO Petitions;
7.   TRO dated November 15, 2011 issued in the GMA and Mike Arroyo
TRO Petitions;
8.   Logbook or receiving copy showing the time the TRO was issued to
the counsel of GMA and Mike Arroyo, as well as the date and time
the TRO was received by the Sheriff for service to the parties;
9.   Special Power of Attorney dated November 15, 2011 submitted by
GMA and Mike Arroyo in favor of Atty. Ferdinand Topacio and
Anacleto M. Diaz, in compliance with the TRO dated November 15,
2011;
 014 Banco Filipino v. Monetary Board (CRUZ)
July 8, 1986 | Gancayco, J. | bank deposit/ bank secrets
PETITIONER: Banco Filipino
RESPONDENTS: Monetary Board et al. (ganito lang talaga nakalagay sa case)
SUMMARY: Banco Filipino filed a motion for the production, inspection and
copy of certain documents from the Central Bank. These materials are said to
comprise of records of the administrative proceedings conducted by Central
Bank's officials and representatives from the inception of and preparation of the
challenged reports and the resolution placing petitioner under receivership and
thereafter under liquidation as it is the regularity and impartiality of these
administrative proceedings which are being assailed by Banco Filipino. The
lower court granted the motion and considered the documents sought to be
produced as not privileged because these constitute or contain evidence material
to the issues into by the Court. The issue in this case is WoN the documents
subject to the motion for production filed by Banco Filipino are privileged. The
SC ruled in the negative. The deliberations may be confidential but not
necessarily absolute and privileged. There is no specific provision in the Central
Bank Act, even in Sections 13 and 15 thereof, which prohibits absolutely the
courts from conducting an inquiry on said deliberations when these are relevant
or material to a matter subject of a suit pending before it. The disclosure is here
not intended to obtain information for personal gain. There is no indication that
such disclosure would cause detriment to the government, to the bank or to third
parties. Significantly, it is the bank itself here that is interested in obtaining what
it considers as information useful and indispensably needed by it to support its
position in the matter being inquired to by the lower court
DOCTRINE: a party is ordinarily entitled to the production of books,
documents and papers which are material and relevant to the establishment of
his cause of action or defense but On the ground of public policy, the rules
providing for production and inspection of books and papers do not authorize
the production or inspection of privileged matter, that is, books, papers which
because of their confidential and privileged character could not be received in
evidence.
FACTS:
1.   Banco Filipino filed a "Motion to Pay Back Salaries to All BF Officers and
Employees from February to August 29, 1985" in connection with its
"Opposition to Respondents" Motion for Reconsideration or for
Clarification of the Resolution of the Court En Banc of October 8, 1985."
2.   The RTC issued an order directing Monetary Board et. Al. herein "to pay all
officers and employees of Banco Filipino their back salaries and
wages corresponding to the period from February to August 29, 1985."
3.   Monetary Board et al filed an appeal to the SC "Appeal from, or Petition to
Set Aside, order to Pay Back Salaries" praying for the reversal and setting
aside of the aforestated trial court's Order.
4.   Subject of this "Petition to Set Aside Order to Produce Documents dated 17
February 1986", granting the motion of the Banco Filipino herein, based on
Section 1, Rule 27, of the Rules of Court, for the production, inspection,
and copying of certain papers and records which are claimed as needed by
the Banco Filipino for the preparation of its comments, objections, and
exceptions to the Conservator's report and Receiver's Report
5.   The documents now asked to be produced, inspected, and copied are the
following:
a.   Copies of tapes and transcripts of the Monetary Board (MB)
deliberations on the closure of Banco Filipino (BF) and its meeting
on July 27, 1984, and March 22, 1985;
b.   Copies of the letter and reports of first conservator, Mr. Basilio
Estanislao, to the MB and to Central Bank Governor Jose
Fernandez;
c.   Papers showing computations of all the interests and penalties
charged by the CB against BF;
d.   Schedule of recommended valuation of reserves per Mr. Tiaoqui's
report dated March 19, 1985;
e.   Adjustment per Annex "C" of Mr. Tiaoqui's report;
f.   Annexes"A","B",and"C"of the joint report of Mr. Tiaoqui, Mr.
Aurellano, and Mrs. Valenzuela;
g.   Schedule of devaluation of CB premises of Paseo de Roxas of
same report;
h.   Schedule of BF's realizable assets from P5,159.44 B to P3,909.23
B as of January 25, 1985;
i.   Documents listed in BF's letter to Mrs. Carlota Valenzuela dated
October 25, 1985.
6.   In issuing the challenged order, the court below took the view that the
Supreme Court's resolution referring to it the matters relative to the bank's
closure does not preclude Banco Filipino from availing of this mode of
discovery as an additional means of preparing for the hearing.
7.   It considered the documents sought to be produced as not privileged
because these constitute or contain evidence material to the issues into by
the Court. These materials are said to comprise of records of the
administrative proceedings conducted by Central Bank's officials and
representatives from the inception of and preparation of the challenged
reports and the resolution placing petitioner under receivership and
thereafter under liquidation as it is the regularity and impartiality of these
administrative proceedings which are being assailed by Banco Filipino, the
trial court saw no reason why said documents should be thus concealed
from it.
 8.   Monetary Board and Central Bank take exception to the said order and pray
in their petition before this Court for the reversal and setting aside of the
same.
9.   The grounds recited in support of their petition are the following:
a.   The ratiocination of the trial court is wholly in error because the
proceedings before it do not at all deal with either the
administrative proceedings conducted by the Central Bank or the
regularity and impartiality of the CB actions on BF; it does so
simply upon the charge that no "hearing" was given BF prior to
those actions of closure and liquidation. However, no such prior
hearing had been called as none is required by the law and by the
Supreme Court decisions in force to this date
b.   The tapes and transcripts of the Monetary Board deliberations are
confidential pursuant to Sections 139 and 1510 of the Central Bank
Act.
c.   The Monetary Board deliberations were necessarily held
subsequent to the submission of the CB reports. They did not enter
into the making of those reports and can have no materiality to any
question of fact that may be raised in relation to their contents.
10.   On April 16, 1986, Banco Filipino filed its Comment on Central Bank's
petition to set aside the order for the production of the documents. Banco
Filipino assails the petition on the following grounds:
a.   There is no reason why Banco Filipino should not be furnished the
documents, particularly Nos. 3 to 9 of its motion, when these are
merely attachments to the Supervision and Examination Sector,
Dept. It (SES) Reports, copies of which were given to it pursuant
to a Supreme Court order.
b.   The Supreme Court in its referral of October 8, 1985 to the RTC
Makati intended full evidence taking of the proceeding for judicial
review of administrative action filed with the Supreme Court, the
trial court being better equipped for evidence taking.
9 Sec. 13. Withdrawal of persons having a personal interest. Whenever any member attending a meeting
of the Monetary Board has a material personal interest, directly or indirectly, in the discussion or
resolution of any given matter, said member shall not participate in the discussion or resolution of the
matter and must retire from the meeting during the deliberation thereon. The subject matter, when
resolved, and the fact that a member had a personal interest in it, shall be made available to the public. The
minutes of the meeting shall note the withdrawal of the member concerned. (As amended by PD No.
1827).
10 Sec. 15. Responsibility. — Any member of the Monetary Board or officer or employee of the Central
Bank who wilfully violates this Act or who is guilty of gross negligence in the performance of his duties
shall be held liable for any loss or injury suffered by the Bank as a result of such violation or
negligence. Similar responsibility shall apply to the disclosure of any information of a confidential nature
about the discussion or resolutions of the Monetary Board, except as required in Section 13 of this Act, or
about the operations of the Bank, and to the use of such information for personal gain or to the detriment
of the Government, the Bank or third parties. (As amended by Presidential Decree No. 72). (Italics
supplied).
c.   The Monetary Board cannot claim privilege in refusing to produce
the Central Bank records because it is based only on the
generalized interest in confidentiality.
i.   Banco Filipino cites as a precedent the doctrine in U.S. vs.
Nixon which states that "when the ground for asserting
privilege as to subpoenaed materials sought for use in a
criminal case is based only on the generalized interest in
confidentiality, it cannot prevail over the fundamental
demands of due process of law."
d.   The requested documents and records of the Central Bank are
material and relevant because BF is entitled to prove from the CB
records
i.   that Governor Fernandez closed BF without a MB
resolution and without examiner's reports on the financial
position of BF;
ii.   that a MB resolution was later made to legalize the BF
closure but it had no supporting examiner's report;
iii.  that the earlier reports did not satisfy respondent
Governor Fernandez and he ordered the examiners and
the conservator, Gilberto Teodoro, to "improve" them;
and
iv.   that the reports were then fabricated.
11.   Banco Filipino adds that what the Monetary Board fears is disclosure of
their proceedings because Banco Filipino has accused the CB governor of
a.   covering 51% of its stockholding,
b.   encashing BF securities in trickles as fuel a run,
c.   appointing a conservator when the President ordered the MB to
grant petitioner a P 3 Billion credit line,
d.   replacing Estanislao with Gilberto Teodoro when the former
wanted to resume normal operations of BF, and
e.   changing the conservatorship to receivership when it appointed
Carlota Valenzuela as receiver again without hearing.
12.   The Monetary Board filed their Reply to Banco Filipino's Comment,
arguing that:
a.   The case of U.S. vs. Nixon and the other decisions cited by
petitioner are inapplicable because-
i.   The authorities cited refer only to a claim of privilege
based only on the generalized interest of confidentiality or
on an executive privilege that is merely presumptive.
1.   On the other hand, the so-called MB
deliberations are privileged communications
pursuant to Section 21, Rule 130 of the Rules of
Court because statements and opinions expressed
in the deliberation of the members of the MB are
specifically vested with confidentiality under
Secs. 13 and 15 of the Central Bank Act. The
 "public interest" requirement for non-disclosure
is evident from the fact that the statute punishes
any disclosure of such deliberations.
ii.   Banco Filipino has not in the least shown any relevance or
need to produce the alleged MB deliberations. What the
bank intends to prove are not "issues" raised in the
pleadings of the main petition.
b.   Banco Filipino is interested, not in discovering evidence, but in
practicing oppression by the forced publication of the MB
members' confidential statements at board meetings.
c.   The so-called deliberations of the Monetary Board are in truth
merely the individual statements and expressions of opinion of its
members. They are not statements or opinions that can be imputed
to the board itself or to the Central Bank. The transcripts of
stenographic notes on the deliberations of the MB are not official
records of the CB; they are taken merely to assist the Secretary of
the MB in the preparation of the minutes of the meetings. And as
advertedly also, the tape recordings are not available as these are
used over and over again.
ISSUE/s:
1.   WoN the documents subject to the motion for production filed by Banco
Filipino are privileged – No not privileged and that these constitute or
contain evidence material to the issues being inquired into by the Court
RULING: WHEREFORE, ruling that the Order of November 7, 1985 of Judge
Ricardo Francisco, granting salary to the officers and employees of Banco Filipino
for the period from February, 1985 to August 29, 1985, may now be deemed moot
and academic insofar as it relates to the period from January 25, 1985 to June, 1985
and as the remaining period, which is from June, 1985 up to August, 1985, covers
but a minimal span of two (2) months, the Court RESOLVES, for reasons of equity,
to allow the aforestated Order to remain undisturbed and to DISMISS the appeal
therefrom. This Order is immediately held executory
RATIO:
1.   The motion for the production of the subject documents was filed by Banco
Filipino pursuant to Section 1, Rule 27, of the Rules of Court.
2.   It has been held that "a party is ordinarily entitled to the production of
books, documents and papers which are material and relevant to the
establishment of his cause of action or defense"
3.   The test to be applied by the trial judge in determining the relevancy of
documents and the sufficiency of their description is one of reasonableness
and practicability"
4.   "On the ground of public policy, the rules providing for production and
inspection of books and papers do not authorize the production or
inspection of privileged matter, that is, books, papers which because of
their confidential and privileged character could not be received in
evidence".
5.   "In passing on a motion for discovery of documents, the courts should be
liberal in determining whether or not documents are relevant to the subject
matter of action" Likewise, "any statute declaring in general terms that
official records are confidential should be liberally construed, to have an
implied exception for disclosure when needed in a court of justice"
6.   In the light with these, this Court holds that no grave abuse of discretion
was committed by the RTC od Makati in granting Banco Filipino's motion
for the production of the documents enumerated herein.
7.   We view that the documents are not privileged and that these constitute or
contain evidence material to the issues being inquired into by the Court.
8.   With respect to Items Nos. 3 to 9, these are the annexes to the Supervision
and Examination Sector, Dept. II (SES) Reports submitted to the Central
Bank and Monetary Board which were taken into consideration by said
respondents in closing Banco Filipino.
a.   A copy of the SES Reports was furnished to Banco Filipino.
b.   We, therefore, fail to see any proper reason why the annexes
thereto should be withheld. Banco Filipino cannot adequately
study and properly analyze the report without the corresponding
annexes. Pertinent and relevant, these could be useful and even
necessary to the preparation by petitioner of its comment,
objections and exceptions to the Conservator's reports and
receiver's reports.
9.   Regarding copies of the letter and reports of first Conservator, Mr. Basilio
Estanislao, to the Monetary Board and to Central Bank Governor Fernandez
(Item No. 2) these appear relevant as Banco Filipino has asserted that the
above-named Conservator had in fact wanted to resume normal operations
of Banco Filipino but then he was thereafter replaced by Mr. Gilberto
Teodoro. The letter and reports could be favorable or adverse to the case of
petitioner but whatever the result may be, petitioner should be allowed to
photocopy the same.
10.   As to the tapes and transcripts of the Monetary Board deliberations on the
closure of Banco Filipino and its meetings on July 27, 1984, and March 22,
1985, (Item No. 1), Monetary Board et al contend that "it is obvious from
the requirement (Sections 13 and 15 of the Central Bank Act) that the
subject matter (of the deliberations), when resolved. . . shall be made
available to the public but the deliberations themselves are not open to
disclosure but are to be kept in confidence."
a.   This Court, however, sees it in a different light. The deliberations
may be confidential but not necessarily absolute and
privileged. There is no specific provision in the Central Bank
Act, even in Sections 13 and 15 thereof, which prohibits
absolutely the courts from conducting an inquiry on said
deliberations when these are relevant or material to a matter
subject of a suit pending before it.
 b.   The disclosure is here not intended to obtain information for
personal gain. There is no indication that such disclosure would
cause detriment to the government, to the bank or to third parties.
Significantly, it is the bank itself here that is interested in obtaining
what it considers as information useful and indispensably needed
by it to support its position in the matter being inquired to by the
court below.
11.   On the other hand, Monetary Board et al cite Section 2111, Rule 130, Rules
of Court
12.   But this privilege, as this Court notes, is intended not for the protection
of public officers but for the protection of public interest. Where there
is no public interest that would be prejudiced, this invoked rule will not
be applicable.
13.   The rule that a public officer cannot be examined as to communications
made to him in official confidence does not apply when there is nothing to
show that the public interest would suffer by the disclosure question.
14.   In the case at bar, Monetary Board et al have not established that public
interest would suffer by the disclosure of the papers and documents sought
by Banco Filipino. Considering that Banco Filipino was already closed as of
January 25, 1985, any disclosure of the aforementioned letters, reports, and
transcripts at this time pose no danger or peril to our economy. Neither will
it trigger any bank run nor compromise state secrets.
15.   Monetary Board et al's reason for their resistance to the order of production
are tenuous and specious. If the Central Bank public officials acted
rightfully and prudently in the performance of their duties, there should be
nothing at all that would provoke fear of disclosure
16.   On the contrary, public interests will be best served by the disclosure of the
documents. Not only the banks and its employees but also its numerous
depositors and creditors are entitled to be informed as to whether or not
there was a valid and legal justification for Banco Filipino’s closure.
17.   Public interest means more than a mere curiosity; it means something in
which the public, the community at large, has some pecuniary interest by
which their legal rights or liabilities are affected

11 Section 21. Privileged Communications. The following persons cannot testify as to matters learned in
confidence in the following cases:
xx xxx xxx
(e) A public officer cannot be examined during his term of office or afterwards, as to communications
made to him in official confidence, when the court finds that the public interest would suffer by
disclosure.
 015 AIR PHILIPPINES vs. PENSWELL (DAGUMAN)
December 13, 2007 | Chico-Nazario, J. | Trade secrets
PETITIONER: Air Philippines Corporation
RESPONDENTS: Penswell, Inc.
SUMMARY:
Air Philippines Corporations is a domestic corporation engaged in the business
of air transportation services. Meanwhile, Penswell, Inc. was engaged in the
business of manufacturing and selling industrial chemicals, solvents, and special
lubricants. On various dates, Penswell delivered and sold to Air Philippines its
goods in trade. The total outstanding obligation of Air Philippines under its
contract with Penswell is P449,864.98 with interest at 14% per annum until the
amount would be fully paid. Air Philippines allegedly did not pay this amount
so Penswell filed a collection case. In its answer, Air Philippines argued that it
refused to pay because it was defrauded by Penswell in the amount of P592,000.
It stated that Penswell had sold to it four items which allegedly belonged to their
“new line”. However, it turned out that these products were identical with the
products from the old line. Air Philippines asserted that it was deceived by
Penswell who merely altered the names and labels of such goods. It argued that
had it known that the products were identical with the old line, it would not
have purchased the said products. During the pendency of the trial, Air
Philippines filed a Motion to Compel Penswell to give a detailed list of the
ingredients and chemical components of the four products complained of. The
RTC granted this motion. Penswell sought reconsideration contending that it
cannot be compelled to disclose the components of its products because the
matter is confidential.it argued that what Air Philippines is asking for is part of
their trade secret; hence, it cannot be divulged. RTC reversed its ruling. Air
Philippines appealed, but the CA denied its motion; hence, this case. ISSUE:
WoN Penswell may be compelled to disclose the components of its products—
NO. The chemical composition, formulation, and ingredients of Penswell’s
special lubricants are trade secrets within the contemplation of the law.
RULING: In the creation of its lubricants, Penswell expended efforts, skills,
research, and resources. What it had achieved by virtue of its investments may
not be wrested from Penswell on the mere pretext that it is necessary for Air
Philippines’ defense against a collection for a sum of money. To compel its
disclosure would be to cripple Penswell’s business, and to place it at an undue
disadvantage. Under Sec. 1, Rule 27 of the Rules of Court, the court may order
any party: a) to produce and permit the inspection and copying or
photographing of any designated documents, papers, books, accounts, letters,
photographs, objects or tangible things, which are not privileged. In this case,
since Penswell’s products are protected by trade secret, they are considered
privileged, and thus cannot be disclosed. Furthermore, read doctrine.
DOCTRINE:
Section 24 of Rule 130 draws the types of disqualification by reason of
privileged communication, to wit: (a) communication between husband and
wife; (b) communication between attorney and client; (c) communication
between physician and patient; (d) communication between priest and penitent;
and (e) public officers and public interest. There are, however, other
privileged matters that are not mentioned by Rule 130. Among them are the
following: (a) editors may not be compelled to disclose the source of published
news; (b) voters may not be compelled to disclose for whom they voted; (c)
trade secrets; (d) information contained in tax census returns; and (d) bank
deposits.
FACTS:
1.   Air Philippines Corporations is a domestic corporation engaged in the
business of air transportation services. Meanwhile, Penswell, Inc. was
engaged in the business of manufacturing and selling industrial chemicals,
solvents, and special lubricants.
2.   On various dates, Penswell delivered and sold to Air Philippines sundry
goods in trade. This was covered by sales invoices. Under the contracts, the
total outstanding obligation of Air Philippines is P449,864.98 with interest
at 14% per annum until the amount would be fully paid.
3.   Air Philippines failed to comply with its obligation under the contract, so
Penswell filed a complaint for a sum of money with the RTC.
4.   In its answer, Air Philippines argued that it refused to pay because it was
defrauded by Penswell in the amount of P592,000. It stated that Penswell
had sold to it four items which allegedly belonged to their “new line”.
However, it turned out that these products were identical with the products
from the old line. Air Philippines asserted that it was deceived by Penswell
who merely altered the names and labels of such goods. It argued that had it
known that the products were identical with the old line, it would not have
purchased the said products. Moreover, Air Philippines alleged that when it
confronted Penswell regarding the matter, they had already agreed that
Penswell would return the amount that it had received as payment. Air
Philippines was therefore surprised when it received a letter demanding
payment of the amount of P449,864.94.
a.  Anti friction fluid vs. Excellent rust corrosion
b.   Contact grease vs. connector grease
c.  Trixohtropic grease vs. di-electric strength protective coating
d.  Dry lubricant vs. anti-seize compound
5.   During the pendency of the trial, Air Philippines filed a Motion to
Compel Penswell to give a detailed list of the ingredients and chemical
compenents of the four products complained of. Apparently, Air
Philippines had earlier requested the Philippines Institute of Pure and
Applied Chemistry (PIPAC) for the latter to conduct a comparison of the
goods.
6.   The RTC granted this motion.
7.   Penswell sought reconsideration contending that it cannot be compelled to
disclose the components of its products because the matter is confidential.it
 argued that what Air Philippines is asking for is part of their trade secret;
hence, it cannot be divulged. If their components were revealed, its business
competitors may easily imitate and market the same types of products, in
violation of its proprietary rights.
8.   RTC reversed its ruling.
9.   Air Philippines filed a petition for certiorari under rule 65 with the CA,
which denied the petition and affirmed the order of the RTC.
10.   Hence, this case where Air Philippines relies on Section 1, Rule 27 of the
Rules of Court, arguing that the use of modes of discovery operates with
desirable flexibility under the discretionary control of the trial court. It
posits that its request is not done in bad faith or in any manner as to annoy,
embarrass, or oppress Penswell.
ISSUES:
1.   WoN Penswell may be compelled to disclose the components of its
products—NO. The chemical composition, formulation, and ingredients of
Penswell’s special lubricants are trade secrets within the contemplation of
the law.
RULING: WHEREFORE, the Petition is DENIED. The Decision dated 16 February
2006, and the Resolution dated 25 May 2006, of the Court of Appeals in CA-G.R. SP
No. 86329 are AFFIRMED. No costs.
RATIO:
1.   A trade secret is defined as a plan or process, tool, mechanism or compound
known only to its owner and those of his employees to whom it is necessary
to confide it. The definition also extends to a secret formula or process not
patented, but known only to certain individuals using it in compounding
some article of trade having a commercial value. A trade secret may consist
of any formula, pattern, device, or compilation of information that: (1) is
used in one's business; and (2) gives the employer an opportunity to obtain
an advantage over competitors who do not possess the information.
2.   Generally, a trade secret is a process or device intended for continuous use
in the operation of the business, for example, a machine or formula, but can
be a price list or catalogue or specialized customer list. It is indubitable that
trade secrets constitute proprietary rights. The inventor, discoverer, or
possessor of a trade secret or similar innovation has rights therein
which may be treated as property, and ordinarily an injunction will be
granted to prevent the disclosure of the trade secret by one who
obtained the information "in confidence" or through a "confidential
relationship."
3.   American jurisprudence has utilized the following factors to determine if an
information is a trade secret, to wit:
a.   The extent to which the information is known outside of the
employer's business;
b.   The extent to which the information is known by employees and
others involved in the business;
c.   The extent of measures taken by the employer to guard the secrecy
of the information;
d.   The value of the information to the employer and to competitors;
e.   The amount of effort or money expended by the company in
developing the information; and
f.   The extent to which the information could be easily or readily
obtained through an independent source.
4.   In Cocoland, the parameters in the determination of trade secrets were set to
be such substantial factual basis that can withstand judicial scrutiny.
5.   In this case, the chemical composition, formulation, and ingredients of
Penswell’s special lubricants are trade secrets within the contemplation of
the law. Penswell was established to engage in the business of general
manufacturing and selling of, and to deal in, distribute, sell or otherwise
dispose of goods, wares, merchandise, products, including but not limited to
industrial chemicals, solvents, lubricants, acids, alkalies, salts, paints, oil,
varnishes, colors, pigments and similar preparations, among others.
6.   In the creation of its lubricants, Penswell expended efforts, skills, research,
and resources. What it had achieved by virtue of its investments may not be
wrested from Penswell on the mere pretext that it is necessary for Air
Philippines’ defense against a collection for a sum of money. To compel its
disclosure would be to cripple Penswell’s business, and to place it at an
undue disadvantage.
7.   Sec. 1, Rule 27 of the Rules of Court permits parties to inspect documents
or things upon a showing of good cause before the court in which an action
is pending. The court may order any party: a) to produce and permit the
inspection and copying or photographing of any designated documents,
papers, books, accounts, letters, photographs, objects or tangible things,
which are not privileged; which constitute or contain evidence material to
any matter involved in the action; and which are in his possession, custody
or control; or b) to permit entry upon designated land or other property in
his possession or control for the purpose of inspecting, measuring,
surveying, or photographing the property or any designated relevant object
or operation thereon.
8.   Hence, on the ground of public policy, the rules providing for production
and inspection of books and papers do not authorize the production or
inspection of privileged matter; that is, books and papers which,
because of their confidential and privileged character, could not be
received in evidence. Such a condition is in addition to the requisite that
the items be specifically described, and must constitute or contain evidence
material to any matter involved in the action and which are in the party’s
possession, custody or control.
9.   Section 24 of Rule 130 draws the types of disqualification by reason of
privileged communication, to wit: (a) communication between husband and
wife; (b) communication between attorney and client; (c) communication
 between physician and patient; (d) communication between priest and release information; however, the clear import of the law is that said
penitent; and (e) public officers and public interest. There are, however, authority is limited by the right to confidentiality of the manufacturer,
other privileged matters that are not mentioned by Rule 130. Among processor or distributor, which information may be released only to a
them are the following: (a) editors may not be compelled to disclose the medical research or scientific institution where the information is
source of published news; (b) voters may not be compelled to disclose for needed for the purpose of medical diagnosis or treatment of a person
whom they voted; (c) trade secrets; (d) information contained in tax census exposed to the chemical substance or mixture. In this case, Air
returns; and (d) bank deposits. Philippines has not made the slightest attempt to show that these
10.   As such, Penswell cannot be compelled to reveal its trade secrets. circumstances are availing in the case at bar.
11.   Furthermore, Air Philippines cannot rely on Section 77 of Republic Act
7394, or the Consumer Act of the Philippines, in order to compel Penswell
to reveal the chemical components of its products. While it is true that all
consumer products domestically sold, whether manufactured locally or
imported, shall indicate their general make or active ingredients in their
respective labels of packaging, the law does not apply to respondent.
Penswell’s specialized lubricants are not consumer products. Consumer
products, as it is defined in Article 4(q) of the said law, refers to goods,
services and credits, debts or obligations which are primarily for personal,
family, household or agricultural purposes, which shall include, but not be
limited to, food, drugs, cosmetics, and devices. This is not the nature of
Penswell’s products. Its products are not intended for personal, family,
household or agricultural purposes. Rather, they are for industrial use,
specifically for the use of aircraft propellers and engines.
12.   Neither does its products fall under RA 8203 or the Special Law on
Counterfiet Drugs which requires the disclosure of the active ingredients of
a drug. Penswell’s specialized lubricants are not drugs within the purview
of the said law. Under the said law, a drug is defined as any chemical
compound or biological substance, other than food, that is intended for use
in the treatment, prevention or diagnosis of disease in man or animals.
13.   What is clear from the factual findings of the RTC and the Court of Appeals
is that the chemical formulation of Penswell’s products is not known to the
general public and is unique only to it. Both courts uniformly ruled that
these ingredients are not within the knowledge of the public. Since such
factual findings are generally not reviewable by this Court, it is not duty-
bound to analyze and weigh all over again the evidence already considered
in the proceedings below.
14.   Air Philippines’ invocation of Section 12 of the Toxic Substances and
Hazardous and Nuclear Wastes Control Act of 1990, which grants the
public access to records, reports or information concerning chemical
substances and mixtures, including safety data submitted, and data on
emission or discharge into the environment is als not applicable in this case.
Section 12 of said Act deems as confidential matters, which may not be
made public, those that would divulge trade secrets, including
production or sales figures or methods; production or processes unique
to such manufacturer, processor or distributor, or would otherwise
tend to affect adversely the competitive position of such manufacturer,
processor or distributor. It is true that under the same Act, the DENR may
 016 In Re: Myron Farber (DAYU)
Sept. 21, 1978 | Mountain, J. | Newsman’s Privilege
PETITIONER: Myron Farber, The New York Times Company, State of New
Jersey
RESPONDENTS: Mario E. Jascalevich
SUMMARY: NY Times and Farber (NY Times Reporter) challenged a decision
saying they were in contempt of court because they failed to disclose
information sought by subpoenas duces tecum in a criminal case against Dr.
Jascalevich. NY Times and Farber claim a privilge to refrain from revealing
information sought by subpoenas duces tecum because, if this occurred,
newsgathering and the dissemination of news would be seriously impaired,
because much information would never be forthcoming to the news media unless
the persons who were the sources of such information could be entirely certain
that their identities would remain secret. They further contend that this privilege
to remain silent with respect to confidential information and the sources of such
information emanates from the “free speech” and “free press” clauses of the 1st
Amendment. They also argue that a New Jersey Shield Law applies. Issue is w/n
requiring newsmen to appear and testify abridges the freedom of speech and
press—NO, SC of New Jersey said that this issue has already been decided in the
the Branzburg which held that no such right stems from the 1st Amendment.
Also, w/n the Shield Law statute must yield to the New Jersey Constitution—
YES, it is subordinate to the Compulsory Process enshrined in the State
Constitution. The SC of New Jersey ruled that althought the shield law is
constitutional on its face; however, when applied to the facts of the case, it
would deny the criminal defendant Jascalevich the right to have compulsory
process for obtaining witnesses. Therefore, the State Constitutional guarantee of
a Jascalevich’s right to confront witnesses prevailed over the state statute
granting privilege to newspersons regarding their source of confidential
information.
DOCTRINE:
Art. 1, para 10 of New Jersey Constitution affords a defendant in a criminal
prosecution the right to compel the attendance of witnesses and the production of
documents and other material for which he may have, or may believe he has, a
legitimate need in preparing or undertaking his defense. It also means that
witnesses properly summoned will be required to testify and that material
demanded by a properly phrased subpoena duces tecum will be forthcoming and
available for appropriate examination and use.
COMPARE WITH SOTTO LAW (SHIELD LAW) – RA 53 AS
AMENDED BY RA 1477 (June 15, 1956):
Section 1. Section one of Republic Act Numbered Fifty- three is amended to
read as follows:
"Section 1. Without prejudice to his liability under the civil and criminal laws,
the publisher, editor, columnist or duly accredited reporter of any newspaper,
magazine or periodical of general circulation cannot be compelled to reveal the
source of any news-report or information appearing in said publication which
was related in confidence to such publisher, editor or reporter unless the court or
a House or committee of Congress finds that such revelation is demanded by the
security of the State."
New Jersey Shield Law (found in footnotes in case Sir asks, not mentioned
in case body):
The term "shield law" is commonly and widely applied to statutes granting
newsmen and other media representatives the privilege of declining to reveal
confidential sources of information. The New Jersey shield law reads as follows:
Subject to Rule 37, a person engaged on, engaged in, connected with, or
employed by news media for the purpose of gathering, procuring, transmitting,
compiling, editing or disseminating news for the general public or on whose
behalf news is so gathered, procured, transmitted, compiled, edited or
disseminated has a privilege to refuse to disclose, in any legal or quasi-legal
proceeding or before any investigative body, including, but not limited to, any
court, grand jury, petit jury, administrative agency, the Legislature or legislative
committee, or elsewhere:
a. The source, author, means, agency or person from or through whom any
information was procured, obtained, supplied, furnished, gathered, transmitted,
compiled, edited, disseminated, or delivered; and
b. Any news or information obtained in the course of pursuing his professional
activities whether or not it is disseminated.
The provisions of this rule insofar as it relates to radio or television stations shall
not apply unless the radio or television station maintains and keeps open for
inspection, for a period of at least 1 year from the date of an actual broadcast or
telecast, an exact recording, transcription, kinescopic film or certified written
transcript of the actual broadcast or telecast.
FACTS:
51.   The New York Times Company [NY Times] and Myron Farber (NY Times
reporter) challenged judgments entered against them in 2 related matters:
(1) a proceeding in aid of a litigant (civil contempt), the other (2) for
criminal contempt of court.
52.   Proceedings were instituted in an ongoing murder trial now it its 7th month
as a result of NY Times and Farber’s failure to comply with 2 subpoenas
duces tecum directing them to produce documents/materials compiled by
one or both of them in the course of Farber’s investigative reporting of
certain allegedly criminal activities.
53.   Farber’s investigations and reporting are said to have contributed largely to
the indictment and prosecution of Dr. Mario E. Jascalevich for murder.
54.   NY Times and Farber moved unsuccessfully for Judge Arnold (trial judge
in State v. Jascalevich) to quash the subpoenas. Eventually, order was
entered directing subpoenaed material to be produced for in camera
inspection.
55.   NY Times and Farber’s application for a stay of Judge Arnold’s order was
likewise denied by the appellate division of the superior court, by this court,
and by 2 separate Justices of the SC of the US.
56.   Impelled by NY Times and Farber’s persistent refusal to produce
subpoenaed materials for in camera inspection, Judge Arnold issued order
returnable before Judge Trautwein, directing them to show cause why they
should not be deemed in contempt of court.
57.   Judge Trautwein ordered Jascalevich’s counsel to apply to Judge Arnold for
additional order to show cause, this to be in aid of litigant’s rights.
58.   Order was issued, served, and the hearing on the matter consolidated with
the hearing on the criminal contempt charge.
59.   Judge Trautwein determined that NY Times and Farber has willfully
contemned Judge Arnold’s order directing material be produced for in
camera inspection and found them guilty. In order to compel production of
materials subpoenaed on behalf of Jascalevich, a fine of $5K per day for
every day that elapsed until compliance with order was imposed upon NY
Times; Farber fined $1k and sentenced to confinement in the county jail
until he complied with order.
60.   Appellate Division granted a stay of contempt orders but denied stay of
orders for relief of a litigant.
61.   NY Times and Farber’s initial motion for direct certification to this Court
was denied.
62.   Attorney General, designated by the Court to prosecute the contempt
charges against NY Times and Farber, moved before Appellate Division for
a remand in order that trial court might determine whether news media
privilege (asserted by NY Times and Farber) had been waived.
63.   This motion was denied and an appeal was taken to this Court.
64.   In response to an inquiry by the Court, the Atty. General filed a letter which
contained a motion for direct certification.
65.   The Atty. General’s motion for leave to appeal and for direct certification
were granted, as was NY Times and Farber’s motion for direct certification.
66.   NY Times and Farber claim a privilge to refrain from revealing information
sought by subpoenas duces tecum essentially for the reason that were they
to divulge this material, confidential sources of such information would be
made public.
67.   If this occurred, they argued that newsgathering and the dissemination of
news would be seriously impaired, because much information would never
be forthcoming to the news media unless the persons who were the sources
of such information could be entirely certain that their identities would
remain secret.
68.   NY Times and Farber claim that final result would be a substantial
lessening in the supply of available news on a variety of important and
sensitive issues, all to the detriment of the public interest. They further
contend that this privilege to remain silent with respect to confidential
information and the sources of such information emanates from the “free
speech” and “free press” clauses of the 1st Amendment.
ISSUE/s:
15.   WoN requiring newsmen to appear and testify abridges the freedom of
speech and press—NO, the Branzburg case decided that no such right stems
from the 1st Amendment.
16.   WoN statute must yield to the Constitution—YES, it is subordinate to the
Compulsory Process enshrined in the Constitution.
RULING: Judgment of conviction of criminal contempt and that in aid of litigants’
rights are affirmed.
RATIO:
The First Amendment
59.   The SC of US has clearly rejected this claim and has squarely held that no
such 1st Amendment right exists.
60.   In Branzburg v. Hayes, 3 news media reps argued that—for the same
reasons advanced in this case—they should not be required to appear and
testify before grant juries, and that this privilege to refrain from divulging
information, asserted to have been received from confidential sources,
derived from the 1st Amendment.
61.   In that case, Justice White noted that there was no common law privilege,
saying: “The issue in these cases is whether requiring newsmen to appear
and testify before state or federal grant juries abridges the freedom of
speech and press guaranteed by the 1st Amendment. We hold that it does
not.”
62.   In that case, one reporter from Frankfort, Kentucky, had witnessed
individuals making hashish from marijuana and had made a rather
comprehensive survey of the drug scene in Frankfort. He had written an
article in Louisville Courier-Journal describing this illegal activity.
63.   Another, a newsman-photographer employed by a New Bedford,
Massachusetts TV station had met with members of the Black Panther
movement at the time certain riots and disorders occurred in New Bedford.
Material he assembled formed basis for a TV program that followed.
64.   3rd investigative reporter had met with members of Black Panthers in north
California and had written an article about the nature and activities of the
movement. In each instance there had been a commitment on the part of the
media representative that he would not divulge the source of his article or
story.
65.   By a vote of 5-4, SC held that newspaper reporters or other media
representatives have no privilege deriving from the 1st Amendment to
refrain from divulging confidential information and the sources of such
 information when properly subpoenaed to appear before grand jury. Hence,
the 3 media representatives were directed to appear and testify.
66.   Justice White’s holding in that case: “There is no present authority in this
Court either that newsmen are constitutionally privileged to withhold duly
subpoenaed documents material to the prosecution or defense of a criminal
case or that defendant seeking subpoena must show extraordinary
circumstances before enforcement against newsmen will be had.”
67.   We pause to point out that, depite the holding in Branzburg, those who
gather and disseminate news are by no means without 1st Amendment
protections.
68.   They include, amonth others, the rights to publish what the press chooses to
publish, to refrain from publishing what it chooses to withhold, to seek out
news in any legal manner and to refrain from revealing its sources except
upon legitimate demand.
69.   Demand is not legitimate when the desired information is patently irrelevant
to the needs of the iquirer or his needs are not manifestly compelling. Nor
will the 1st Amendment sanction harassment of the press. These do not
exhaust the list of such 1st Amendment protective rights.
70.   Point to be made is that among many 1st Amendment protections that may
be invoked by press, there is not to be found the privilege of refusing to
reveal relevant confidental information and its sources to a grand jury,
which is engaged in the fundamental governmental function of “fair and
effective law enforcement aimed at providing security for the person and
property of the individual.” Reason for this is because majority of the
members of the US SC have so determined.
71.   The argument of NY Times and Farber that Justice Powell’s concurring
opinion in Branzburg disagrees with what Justice White said is of no merit.
Even if it did, it would not matter.
72.   The important and conclusive point is that 5 members of the Court have all
reached the conclusion that the 1st Amendment affordsno privilege to a
newsman to refuse to appear before a grand jury and testify as to relevant
information he possesses, even though in so doing he may divulge
confidential sources.
73.   Thus, we do no weighing or balancing of societal interests in reaching our
determination that the 1st Amendment does not afford NY Times and Farber
the privilege they claim. Our conclusion that they cannot derive protection
from the 1st Amendment rests upon the fact that Branzburg is binding upon
us.
The Shield Law
74.   In Branzburg, Court dealt with a newsman’s claim of privilege based solely
upon the 1st Amendment. This claim of privilege failed.
75.   In Branzburg, no shield law was involved. Here, we have a shield law, said
to be as strongly worded as any in the country.
76.   We read the legislative intent in adopting this statute in its present form as
seeking to protect the confidential sources of the press as well as
information so obtained by reporters and other news media representatives
to the greatest extent permitted by the Constitution of the US and that of the
State of New Jersey.
77.   It is abundantly clear that NY Times and Farber come fully within the literal
language of the enactment. Viewed solely as a matter of statutory
construction, they are clearly entitled to the protections afforded by the act
unless statutory exceptions including waiver are shown to apply.
[IMPT] Sixth Amendment and its New Jersey Counterpart
78.   Viewed on its face, this [Shield law] legislation is entirely constitutional.
79.   However, it is argued that if enforced under the facts of this case, the Shield
Law violated the 6th Amendment of the Federal Constitution as well as Art.
1, para. 10 of the New Jersey Constitution.
80.   Essentially, the argument is: Federal and State Constitutions each provide
that in all criminal prosecutions the accused shall have the right “to have
compulsory process for obtaining witnesses in his favor.” Dr. Jascalevich
seeks to obtain evidence to use in preparing and presenting his defense in
the ongoing criminal trial where he has been accused of multiple murders.
81.   Dr. Jascalevich invokes that where Constitution and statute collide, the
latter must yield. We find this argument unassailable.
82.   We have elected to employ an adversary system of criminal justice wherein
parties contest all issues before court of law. The ends of criminal justice
would be defeated if judgments were to be founded on partial or speculative
presentation of facts.
83.   The very integrity of the judicial system and public confidence in the
system depend on full disclosure of all the facts, within the framework of
the rules of evidence.
84.   Hence, it is imperative to the function of courts that compulsory process be
available for the production of evidence needed either by the prosecution or
the defense.
85.   Note: 6th Amendment affords rights to an accused but not to a prosecutor.
Compulsion to require production of privileged material derived form the
necessities of our system of administering criminal justice.
86.   Art. 1, para 10 of New Jersey Constitution contains exactly the same
language with respect to compulsory process found in 6th Amendment.
87.   We interpret it as affording a defendant in a criminal prosecution the right
to compel the attendance of witnesses and the production of documents and
other material for which he may have, or may believe he has, a legitimate
need in preparing or undertaking his defense. It also means that witnesses
properly summoned will be required to testify and that material demanded
by a properly phrased subpoena duces tecum will be forthcoming and
available for appropriate examination and use.
88.   We hold that Art. 1. para. 10 of our Constitution prevails over this statute,
but in recognition of the strongly expressed legislative viewpoint favoring
confidentiality, we prescribe the imposition of the safeguards.
[Not that IMPT] Procedural Mechanism (Safeguards)
89.   NY Times and Farber insist that they are entitled to a full hearing on the
issues of relevance, materiality and overbreadth of the subpoena. We agree.
The trial court recognized its obligation to conduct such a hearing, but the
NY Times and Farber have aborted that hearing by refusing to submit the
material subpoenaed for an in camera inspection by the court to assist it in
determining the motion to quash.
90.   That inspection is no more than a procedural tool, a device to be used to
ascertain the relevancy and materiality of that material. Such an in camera
inspection is not in itself an invasion of the statutory privilege. Rather it is a
preliminary step to determine whether, and if so to what extent, the
statutory privilege must yield to the defendant's constitutional rights.
91.   NY Times and Farber’s position is that there must be a full showing and
definitive judicial determination of relevance, materiality, absence of less
intrusive access, and need, prior to any in camera inspection. The obvious
objection to such a rule is that it would effectively stultify the judicial
criminal process.
92.   Jascalevich properly recognizes Myron Farber as a unique repository of
pertinent information. But he does not know the extent of this information
nor is it possible for him to specify all of it with particularity, nor to tailor
his subpoena to precise materials of which he is ignorant.
93.   The same objection applies to the contention that the subpoena is
overbroad. NY Times and Farber do not assert that the subpoena is vague
and uncertain, but that the data requested may not be relevant and material.
To deal effectively with this assertion it is not only appropriate but
absolutely necessary for the trial court to inspect in camera the subpoenaed
items so that it can make its determinations on the basis of concrete
materials rather than in a vacuum.
94.   While we agree, then, that NY Times and Farber should be afforded the
hearing they are seeking, one procedural aspect of which calls for their
compliance with the order for in camera inspection, we are also of the view
that they are entitled to a preliminary determination before being compelled
to submit the subpoenaed materials to a trial judge for such inspection.
95.   The threshold determination would normally follow the service of a
subpoena by a defendant upon a newspaper, a reporter or other
representative of the media. The latter foreseeably would respond with a
motion to quash. If the status of the movant newspaper or media
representative were not conceded, then there would follow the taking of
proofs leading to a determination that the movant did or did not qualify for
the statutory privilege. Assuming qualification, it would then become the
obligation of the defense to satisfy the trial judge, by a fair preponderance
of the evidence including all reasonable inferences, that there was a
reasonable probability or likelihood that the information sought by the
subpoena was material and relevant to his defense, that it could not be
secured from any less intrusive source, and that the defendant had a
legitimate need to see and otherwise use it.
96.   The manner in which the obligation of the defendant is to be discharged in
the proceedings leading to this threshold determination will depend largely
upon the facts of the particular case. We wish to make it clear, however,
that this opinion is not to be taken as a license for a fishing expedition in
every criminal case where there has been investigative reporting, nor as
permission for an indiscriminate rummaging through newspaper files.
97.   As of June 30, 1978, the date of the challenged decision to examine the
materials in camera, Judge Arnold had been trying the case for about 18
weeks. He had dealt with earlier pre-trial motions. His knowledge of the
factual background and of the part Farber had played was intimate and
pervasive
98.   Further support for the determination that there is a reasonable probability
that the subpoenaed materials meet the test formulated above appears in the
following factual circumstances pointed to by Jascalevich (see last page if
for points).
99.   We hasten to add that we need not, and do not, address the truth or falsity of
these assertions. The point to be made is that these are the assertions of the
criminal defendant supported by testimonial or documentary proof; and
based thereon it is perfectly clear that there was more than enough before
Judge Arnold to satisfy the tests formulated above.
100.  Accordingly we find that preliminary requirements for in camera inspection
have been met.
[Not Necessary] Jascalevich Points:
1.   A principal witness for the State is Dr. Michael Baden, a New York City
Medical Examiner, who testified that Farber communicated with him prior
to any official communication from the Prosecutor's office. The defendant
would have one infer from this that Farber stimulated Baden's research into
the causal connection among curare, the deaths, and Dr. Jascalevich, then
turned the results of this joint effort over to the Prosecutor. (Trial testimony
elicited from Dr. Baden after June 30th, the date of Judge Arnold's order, is
said to furnish further support for this inference.) While no sinister
implications need flow from this, it arguably serves to buttress the defense
assertion that the driving power behind this prosecution is Farber, and hence
such materials, if any, that he may be secreting are reasonably likely to bear
on the guilt or innocence of Dr. Jascalevich.
2.   Dr. Stanley Harris was a surgeon at the hospital where the criminal
activities are said to have occurred. His suspicions are said to have been
aroused by the unexplained deaths of some of his patients. Dr. Harris admits
having spoken to Farber five times before the New York Times articles
appeared and before his reinterview by the Prosecutor's office in 1976. He is
characterized by the criminal defendant as his "principal accuser," and
therefore whatever otherwise unavailable information Farber extracted from
him would, with reasonable probability, bear upon Dr. Jascalevich's guilt or
innocence.
3.   Lee Henderson was an attendant at Seton Hall Medical School at a time
when, according to one statement allegedly made by Dr. Jascalevich, the
latter was performing certain tests on dogs in the School laboratory. The
tests supposedly involved the effects of curare (a drug said to have been
administered by the criminal defendant in producing the deaths of the
victims). Henderson may very well have information touching upon Dr.
Jascalevich's activities, if any, in the laboratory. After considerable effort
Farber succeeded in tracking down Henderson in South Carolina. When a
Prosecutor's investigator was later able to communicate with Henderson
(having presumably been led to him by information furnished by Farber),
the witness initially refused to give a statement (later supplied) for fear that
it would conflict with a written statement previously furnished to Farber.
The criminal defendant wishes to examine this earlier statement.
4.   Herman Fuhr was an operating room attendant who opened Dr.
Jascalevich's locker at Riverdell Hospital, where curare was allegedly
stored. Farber interviewed him. He will not speak to defense
representatives.
5.   Dr. Charles Umberger was a toxicologist who worked on slides of one of
the alleged victims. He gave notes to Farber who did not return them. Some
of these notes are missing. Dr. Umberger died in 1977 before the defense
could interview him.
6.   Barbara Kenderes was a lab technician at the hospital. She gave a statement
to a Prosecutor's detective in 1966, which the State either has not furnished
or cannot furnish to the defense. She testified before the grand jury in
March, 1976. Several days later Mrs. Kenderes received a telephone call on
her private, unlisted number from Myron Farber. During the course of the
conversation he accused her of hiding something from him. She replied that,
indeed, she was. Shortly thereafter, she received a call from Assistant
Prosecutor Sybil Moses, who is handling the case. Mrs. Moses told Mrs.
Kenderes that Myron Farber called her and said Mrs. Kenderes was hiding
something. Mrs. Moses wanted to know what that was. Mrs. Kenderes
replied that it was only the fact that she had appeared before the grand jury,
which Mrs. Moses had cautioned her not to speak about. The only person to
whom Mrs. Kenderes had given her private phone number in connection
with this matter was Mrs. Moses. Again the inference defendant Jascalevich
would have us draw is that early on there was complete cooperation and
exchange of information between the Prosecutor's office and Farber, with
the resultant likelihood that Farber is now, and for some time has been, in
possession of material and relevant information not otherwise obtainable
bearing on the guilt or innocence of Dr. Jascalevich.