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Forensic DNA evidence and the death penalty in the Philippines

Article  in  Forensic Science International: Genetics · October 2008

DOI: 10.1016/j.fsigen.2008.04.004 · Source: PubMed

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Forensic Science International: Genetics 2 (2008) 329–332

www.elsevier.com/locate/fsig

Forensic DNA evidence and the death penalty in the Philippines

M.C.A. De Ungria a,*, M.S. Sagum a, G.C. Calacal a, F.C. Delfin a, K.A. Tabbada a,
M.R.M. Dalet a, T.O. Te b,c, J.I. Diokno b, M.S.I. Diokno b, C.A. Asplen d
a
DNA Analysis Laboratory, Natural Sciences Research Institute, University of the Philippines, Diliman, Quezon City, Philippines
b
Free Legal Assistance Group, Cabrera II Building, Timog Avenue, Quezon City, Philippines
c
College of Law, University of the Philippines, Diliman, Quezon City, Philippines
d
Gordon Thomas Honeywell Governmental Affairs, 122 C Street NW Suite 220 Washington, DC, USA
Received 4 February 2008; received in revised form 31 March 2008; accepted 20 April 2008

Abstract
The death penalty remains a contentious issue even though it has been abolished in countries such as Australia, New Zealand, Canada, European
Union member nations and some Asian countries such as Cambodia, East Timor and Nepal. Many argue that the irrevocability of the death penalty,
in the face of potential erroneous convictions, can never justify its imposition. The Philippines, the first Asian country that abolished the death
penalty in 1987, held the record for the most number of mandatory death offenses (30 offenses) and death eligible offenses (22 offenses) after it was
re-imposed in 1994. Majority of death penalty convictions were decided based on testimonial evidence. While such cases undergo automatic
review by the Supreme Court, the appellate process in the Philippines is not structured to accept post-conviction evidence, including DNA
evidence.
Because of the compelling nature of post-conviction DNA evidence in overturning death penalty convictions in the United States, different
groups advocated its use in the Philippines. In one such case, People v Reynaldo de Villa, the defendant was charged with raping his 13-year-old
niece that supposedly led to birth of a female child, a situation commonly known as ‘criminal paternity’. This paper reports the results of the first
post-conviction DNA test using 16 Short Tandem Repeat (STR) DNA markers in a criminal paternity case (People v Reynaldo de Villa) and
discusses the implications of these results in the Philippine criminal justice system.
# 2008 Elsevier Ireland Ltd. All rights reserved.

Keywords: DNA; Death penalty; Post-conviction; Criminal paternity; STR

1. Introduction evidence in majority of death penalty cases. In rape cases, courts

When discussing the death penalty, the Philippines has
special significance because it is the first Asian country to
totally abolish the death penalty in 1987, re-impose it in 1994
[1] and subsequently abolish it for a second time in 2006. In the
12-year period prior to the second abolition, the number of
mandatory death offenses (30 offenses) and death eligible
offenses (22 offenses) was the highest amongst countries that
still had the death penalty at the time [2].
Seven men including five convicted of rape were executed
amidst protests from various groups that raised legitimate
concerns in the implementation of the death penalty in the
Philippines. One concern is the sole reliance on testimonial
* Corresponding author. Tel.: +1 63 2 9252965; fax: +1 63 2 9252965.
E-mail address: mariadeungria@gmail.com (M.C.A. De Ungria).
1872-4973/$ – see front matter # 2008 Elsevier Ireland Ltd. All rights reserved.
doi:10.1016/j.fsigen.2008.04.004
are inclined to convict the accused based only on the victim’s
testimony because of the existing belief in the inability of a rape
victim to fabricate the crime [3]. In 2003, there were 135 inmates
awaiting execution with 91 (67.4%) individuals convicted of rape
[4]. When the death penalty was abolished in 2006 more than half
of the inmates in death row had been convicted of rape.
A second concern is that the trier of fact in each case is a
single individual (trial court judge). During the period 1993 to
June 8, 2004, over 71% of death penalty convictions have been
modified (64.6%) or revoked (7.1%) after these cases under-
went automatic review by the Supreme Court of the Philippines
[5]. Errors were detected even without the presentation of
additional evidence since the Philippine criminal justice system
was not structured to accept post-conviction evidence. In 2005,
the Supreme Court added a second level of review by requiring
that all death penalty cases must first be studied by the Court of
Appeals [5].
330 M.C.A. De Ungria et al. / Forensic Science International: Genetics 2 (2008) 329–332
Given the high incidence of errors in death penalty
convictions and the number of death eligible or death
mandatory offenses, there was an urgent need to incorporate
the use of DNA evidence in reviewing capital cases in the
Philippines. However, because of the relative novelty of DNA
technology in the Philippines, problems were encountered in
initiating the use of post-conviction DNA evidence. This paper
reports the problems encountered due to improper collection
and storage of biological samples during the period prior to the
availability of forensic DNA technology in the country, and the
absence of guidelines in the use of post-conviction DNA
evidence in the Philippines.
The case of People v de Villa is reported here, wherein the
accused–appellant’s capital conviction was affirmed by the
Supreme Court, in the absence of evidence other than the
victim’s testimony and the birth of a child. The 65-year-old
de Villa was convicted of raping his 13-year-old niece who
later gave birth to a female child. The victim asserted that the
rape resulted in her pregnancy (criminal paternity). Hence de
Villa was ordered to pay child support and was sentenced to
death in 1995 [6]. In 2001, the Supreme Court upheld the
conviction of the lower court but modified the death sentence
to life imprisonment because the relationship of the victim
and the accused was not alleged in the information [6].
During the 6 years prior to the final ruling of the Supreme
Court, the legal counsel of de Villa had repeatedly appealed
for the conduct of a simple DNA test to help evaluate
the child’s paternity, stating that Short Tandem Repeat
(STR) DNA technology, which was only introduced in
the Philippines in 1998, was not available at the time of the
trial.
2. Material and methods
2.1. Investigative review of cases for DNA testing
One hundred six (106) inmates who were convicted and
sentenced to death by lethal injection requested the conduct
of post-conviction DNA tests, provided that biological
samples were still available for testing. To identify cases
wherein biological samples were collected and stored,
written information (type of crime, date and time of the
crime, location of the crime, type of biological sample
collected, time and date of collection, name of collector,
location and contact information of police or health unit,
storage of biological sample, name and contact information
of person who stored the sample, storage conditions, location
of lower court and identity of court personnel in charge of
evidence, name, contact information and location of the legal
counsel of the defendant) were obtained from the record
section of the Supreme Court. This was supplemented with
interviews of inmates in the National Penitentiary, law
enforcement and health staff in the locality of the crime and
personnel from the courts where cases were originally
litigated. Of the cases which were reviewed, the case of
People v Reynaldo de Villa was identified as a candidate case
for DNA testing.
2.2. Sample collection
A blood sample was collected from the appellant and
directly blotted on FTATM cards (Whatman1 BioSciences,
USA). In the absence of a court order that would compel the
victim and her child to provide samples for DNA testing, the
appellant’s family took the responsibility to collect saliva from
the victim’s child.
2.3. DNA analysis
The child’s saliva sample was transferred on FTATM cards
via pipetting, whereas, reference blood sample was directly
blotted on the card. DNA on the FTA cards was extracted
following manufacturer’s instructions (Whatman1 BioS-
ciences, USA). Samples were amplified at 16 STR markers
using a combination of 10 singleplex reactions namely vWA,
CSF1P0, TH01, TPOX, D8S306, F13A01, FES/FPS, D21S11,
DHFRP2 and FGA [7–9] and a multiplex AmpFlSTR Profiler
PlusTM ID kit (Applied Biosystems Inc., Foster City, CA).
2.4. Legal procedures
DNA profiles of the appellant and the child were forwarded
to the defense counsel. The defense counsel of the accused–
appellant with assistance from international experts familiar
with handling post-conviction DNA evidence filed a writ of
habeas corpus appealing to the Supreme Court to set aside its
final ruling of 2001. The petition also asked the Supreme Court
to remand the case to the trial court to facilitate the presentation
of newly discovered DNA evidence. The petition left the option
for the trial court to recognize the DNA results already
generated and presented here, or for the court to order a second
DNA test which involved the collection of samples from the
child and the accused–appellant in the presence of their
respective counsels.
3. Results
A total of 106 death row inmates requested to be included in
the present study. Among these were 68 cases whose death
convictions were affirmed by the Supreme Court, including 3
inmates whose death convictions were commuted to life after
review and 38 inmates whose cases were still undergoing
review. The types of crime involved in these cases are
summarized in Table 1.
Table 1
Frequency of crime associated with death penalty cases that requested for post-
conviction DNA tests
Type of crime Frequency Percent
Rape 91 85.8
Homicide 3 2.8
Murder 6 5.7
Parricide 1 0.9
Kidnapping 4 3.8
Drugs 1 0.9
 M.C.A. De Ungria et al. / Forensic Science International: Genetics 2 (2008) 329–332
Of these cases, biological samples in 89 cases were not
available because samples were not collected at the time of the
investigation. All of these individuals were convicted based on
testimonial evidence provided by the victim, and at times
reinforced by eyewitness testimonies. In seven cases, biological
evidence were collected but were not stored properly since the
possibility for DNA testing was not known at that time. In eight
cases, samples were collected but were lost while in the custody
of the personnel handling the case. In some cases where
biological samples were traced by the laboratory, access to
samples in the custody of the court, police or health unit was not
permitted or was likely not to be granted since the system for
seeking post-conviction tests, including DNA tests, was not in
place in the Philippines. In the remaining two cases, biological
evidence consisted of two children claimed to have been
conceived because of rape (criminal paternity) were identified
and located.
One case, People v Reynaldo de Villa presented itself to be a
logical choice for the conduct of the first post-conviction DNA
test in the Philippines because of the family’s initiative to
collect a biological sample from the victim’s child. DNA
profiles in 16 autosomal STR DNA markers of the accused–
appellant and the victim’s child showed six mismatches, which
supported de Villa’s testimony that he is not the father of his
niece’s child.
The petition for habeas corpus and motion for a new trial
was denied with finality by the Supreme Court for ‘lack of
merit’ [6]. This petition included an extensive discussion of the
importance of DNA test results showing non-paternity in the
context of the entire case, given the evidence presented at trial.
4. Discussion
This paper raises issues in the implementation of the death
penalty in countries such as the Philippines where testimonial
evidence is the driving force in majority of convictions.
Because of the intimate nature of the crime of rape, Philippine
trial courts have relied heavily and many times solely on a
victim’s testimony in deciding the guilt of an accused man [3].
However, it is this intimate contact between a victim and the
perpetrator during which biological material may be transferred
between them that makes rape cases appropriate candidates for
post-conviction DNA testing, provided samples were properly
collected and stored. In the US, 192 post-conviction DNA
exonerations have been reported (http://www.innocencepro-
ject.org). Seventy-five percent of these cases involved wrongful
convictions due to errors in eyewitness identification.
Given this information, the present study focused on
evaluating rape cases in searching for candidate cases
(Table 1). In 88 rape conviction cases, biological samples
were not collected at the time and therefore not used at trial, or
these samples could no longer be located. Apparently, samples
were not collected and stored because of several reasons which
included: (1) delayed reporting of the victim, e.g., more than
72 h from the time of the last contact; (2) unavailability of a
rape investigation kit; (3) lack of medical professionals who
had been trained in the proper collection and handling of
331
biological samples from rape victims; and (4) absence of a
designated storage facility for evidentiary samples. It is clear
that these issues must also be addressed in order to maximize
the use of DNA technology in criminal investigations.
Samples for the remaining three cases include a vaginal
swab which was stored in a government hospital and two
children in two criminal paternity cases. Request for access to
the vaginal swab for the conduct of DNA tests was denied
because the period of appeal had expired and the Supreme
Court found no merit in re-opening the case. Clearly, this
decision disallowing the conduct of DNA test on a vaginal swab
that was collected from the victim less than 72 h after the
incident, demonstrates the failure of the judiciary at that time,
to recognize the significance of this type of objective evidence
in evaluating the guilt or innocence of a man who was already
awaiting execution.
The laboratory then focused on gaining access to biological
samples from the children of the two remaining criminal
paternity cases, by seeking assistance from human rights groups
and community officials. These groups were requested to
dialogue with the mothers of the children (‘victims’) in order to
explain the objectivity of DNA evidence. Unfortunately, the
two women were not open to dialogue, and to re-opening their
cases.
In People v de Villa, the sons of the accused–appellant were
determined to prove the innocence of their father. The family’s
initiative played a key role that paved the way for the conduct of
the first post-conviction DNA test in the Philippines. The DNA
test results that excluded de Villa as being the biological father
of the child, placed doubt on the testimony of the victim which
was the basis of de Villa’s death conviction. In fact, de Villa had
repeatedly requested for the conduct of paternity tests via blood
testing during his trial in 1994, or for DNA testing during the
entire period of his appeal until 2004. However, all appeals for
the conduct of DNA tests on the child and the accused–
appellant were denied because the Supreme Court reasoned that
this evidence should have been presented at trial, reiterating the
age-old doctrine of the finality of decisions. The hesitation to
re-opening and remanding cases back to the trial courts for the
presentation of new evidence stems from the situation of
Philippine courts characterized by huge case loads, limited
funding and government bureaucracy.
However, the high number of post-conviction DNA
exonerations in the US demonstrates the potential value of
DNA results in outweighing the value of finality in any criminal
justice system. In People v de Villa, the fact that DNA
technology was not available in the Philippines at the time of
trial in 1994 should have been considered. Although informa-
tion on the child’s birth was presented at trial, DNA evidence to
prove or disprove the claim that the child was that of de Villa
must be considered newly discovered evidence.
The Supreme Court’s decision not to grant the motion to re-
open the case of People v de Villa was based on the principle
that pregnancy is not an element of rape [6]. However, paternity
may be used as exonerative evidence in a sexual assault case
depending on the factual context of the evidence. In People v de
Villa, the request for paternity testing is consistent with defense
332 M.C.A. De Ungria et al. / Forensic Science International: Genetics 2 (2008) 329–332
presented at trial. The appellant’s testimony of his incapacity
for sexual intercourse due to his advanced age was supported by
his wife’s testimony. There were also no allegations of multiple
perpetrators or of promiscuous behavior by the victim. More
importantly, records show that the trial court based its decision
entirely on the birth of the child. Thus in People v de Villa, the
DNA test results that excluded the appellant from being the
biological father of the victim’s child should be considered
exonerative. The defense counsel and the family of de Villa
recognized that the collection of sample from the child without
the informed consent of the child’s mother is unacceptable in
the Philippines, or in any jurisdiction. The intention was to
obtain DNA evidence to re-open the case, since all efforts
following all possible legal remedies, have failed. The petition
filed by defense counsel left the option to the trial court to
accept the evidence presented here or to order the conduct of a
second DNA test using samples that would be collected with the
appropriate court order and consent of parties concerned.
However, although the petition to re-open the case was not
granted, the appellant de Villa was pardoned by the President of
the Philippines and was released in 2005. His complete case
records, including the DNA test results, were sent to the agency
that recommended clemency to the President. In June 2006, due
to the increasing amount of information available on the
problems of the criminal justice system and the implementation
of the death penalty in the Philippines, the President signed
Republic Act 9346 once again abolishing the death penalty in
the Philippines. In 2007, the Supreme Court approved En Banc
the new Rules on DNA evidence which included a section on
post-conviction DNA testing [10]. In the same year, the
Supreme Court remanded a criminal paternity case involving a
capital conviction to the trial court, for the presentation of DNA
evidence to evaluate the paternity of a child conceived because
of an alleged rape [11].
The present study demonstrates the significant role of
DNA technology in catalyzing change within the Philippine
criminal justice system by underscoring the need for
objective scientific evidence that is properly handled and
presented during trial to prevent wrongful convictions. This
is particularly important when dealing with death row cases
wherein a wrongful conviction is irrevocable after the
accused has been executed. In People v de Villa, the use of
forensic DNA technology has affected change in the life of
an individual (de Villa) and his family. In the future, the
increasing use of DNA technology in the Philippines is
expected to affect the lives of those who have been wrongly
accused as well as expediting the litigation of cases and
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providing closure to victims through the accurate identifica-
tion of the real perpetrators of the crime.
Acknowledgments
The authors thank Atty Jose M. Jose, Atty Jose Maria A.
Ochave, Atty Ricardo A. Sunga III and Dr. Saturnina C. Halos
for interesting discussions. The authors also acknowledge the
work of Celeste Jumadla, Chrisgel Cruz, Neil Yabut, Abelardo
Maglanque, Paul Pineda, Abraham Acosta and Hector Lajara
who gathered preliminary information during the initial stages
of the project. The authors also acknowledge the assistance of
the Philippine Jesuit Prison Foundation Inc., Coalition against
the Death Penalty, the Free Legal Assistance Group and the
Public Attorney’s Office.
The work was financed by the European Commission’s
budget for Human Rights and Democracy in Asia and was
identified as one of ‘best practice’ by the Commission. The
views expressed herein do not necessarily represent the official
view of the European Commission. Part of this work was
presented during the 17th Annual Conference of the Interna-
tional Association of Forensic Sciences held in Hong Kong,
China.
References
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[3] T.O. Te, Rape, vol. 1, Free Legal Assistance Group, Quezon City, 2006, p.
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[4] M.S.I. Diokno, Report: Death inmates awaiting execution, in: FLAG
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[5] People v Mateo, Supreme Court of the Philippines, 2004.
[6] People v de Villa, Supreme Court of the Philippines, 2004.
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